Drunk Driving Arrests - When The Sober Designated Driver Is Taken Downtown

There is a line between rational enforcement of the law and police actions that diminish our country and serve no legitimate law enforcement interest. Nowhere is the line less clear than in the enforcement of drunk driving laws. Throughout the country, DUI is seen as a horrible crime. Based on the real dangers and real injuries and real deaths that it causes, you will get no argument from me on that fact. However, given the crime of drunk driving's unpopularity, it has now become a simple matter for many police officers to get convictions from juries even when the facts of the case are questionable.

Case in point: In Mesa, Arizona, a DUI defense lawyer's wife was pulled over recently for DUI. Her husband was in the vehicle and had been drinking. The problem was, she had not been drinking. Not a drop. In fact, she was the designated driver.

No problem then. The officer would investigate and then let her go, right? Not quite. In fact, not even close. What happened, in a nutshell, is that the officer arrested her and forced her to submit to a blood test. The blood test is what would later exonerate her, and shed light on a dirty little secret. Actually two little secrets. First one is that officers can't judge impairment by looking at a person. Not really. Second one is that some officers have an agenda beyond enforcement of the laws. Truth be damned. Resources be damned. They will arrest a sober designated driver because her passengers smell like alcohol. For the facts of the case, the Phoenix New Times web site broke the story.

So she goes free. Case dismissed. Right? Probably. However, the indignity of the arrest and process is now with her. The paid and invasiveness of a police blood draw, of the powerlessness in the face of the exercise of armed police authority is now with her.

When I practiced law in Seattle, before moving the the Phoenix area my wife was pulled over for a DUI. She wasn't drinking. In fact, she doesn't drink at all. She was heading eastbound on the 520 bridge towards Kirkland. The Washington State Patrol officer pulled her over at the first Kirkland exit. He asked her if she had been drinking. She said no. He told her he was concerned because she was weaving on the bridge. It was late at night and she was tired. This officer then asked her if she felt okay to drive the three miles to our house. She said yes. She thanked the officer. He told her to be careful and have a good night. He did his job by stopping her, and he did his job (and the right thing), but letting her go.

Based on the facts of the Mesa case, as presented in the New Times article, I don't really have a problem with the reason for the stop. If the officer saw a vehicle driving at night without headlights on, then there is legitimate reason to stop. In fact, driving without headlights is one of the NHTSA nighttime DUI driving clues. But that is where it should have ended. He did the right thing by pulling her over, and he had a chance to do the right thing by asking her to turn her lights on and drive carefully. He didn't do the right thing. Was it poor training. Was he that bad at his job that he really felt he had probable cause to arrest her. We he otherwise motivated?

Officers, just like lawyers, have almost daily options to do the right thing. Statistically there will always be those who choose otherwise. In law enforcement, as in law, it is what the bad actor's superiors and colleagues do after learning of the bad action that reflects most brightly on the respective professions. There are those who are a credit to their profession, and there are those who are a blemish. If everybody in the above story was acting in good faith, a simple apology would be nice. My best advice though is to not hold your breath waiting.