Presumptive vs. Actual Impairment

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Yesterday, my buddy got into an accident. An actual accident – because it was one he could not have avoided. A minivan pulled out in front of him, struck his Jeep – which spun several times before ending up in a ditch. My buddy is largely unhurt – except for his heart. Because his Jeep, which he loves and also put a lot of work into – is probably totaled.

The interesting thing about this accident is that it is the result of impairment – but one treated with relative kid gloves by the cops and courts and insurance mafia.

My buddy’s Jeep sits in a wrecking yard because a senile, confused old man pulled out in front of him. A nice enough old man, according to my buddy. He admitted fault, was apologetic.

Certainly he didn’t mean to pull out in front of my buddy.

But impaired, nonetheless. And his impairment resulted in actual damage to property and  could have resulted in actual damage to my buddy, himself.

Yet this form of clearcut impairment – driving while senile/glaucomic – is handled very differently – far more leniently – than other forms of arbitrary, presumptive impairment.

And not even that.

If, for example, you have the bad luck to drive by a cop while traveling slightly faster than the speed limit and he turns around and pulls you over to issue you a ticket for speeding – and in the course of interviewing you, sees the empty beer bottle you decided not to throw out the window – you can be arrested for “drunk” driving.

Even though you drank the beer three hours before – and even though one beer cannot get anyone over the age of eight “drunk.”

Even if your BAC is well within the margin of legality. You have an “open container” – and that is enough. (Best to litter, in this case.)

If you are not 21 and drank a beer – or even had a sip of one and Officer Unfriendly catches a whiff on your breath – you also face arrest/conviction and severe consequences for “dunk” driving – even though you obviously weren’t.

You can also be arrested for “drunk” driving even when you haven’t been driving.

Just being in the car is enough – even if it’s in the back seat and you’re fast asleep. The actual driving part of “drunk driving” is no longer necessary, legally speaking – even though it is hard to imagine what possible harm a parked car might cause. You are still subject to arrest for “driving” drunk – and will be roasted over the coals by the system and the insurance mafia, just the same as an 18-year-old who has a 17-year-old girlfriend is labeled a “sex offender” for life by the same system.

It is also presumed that a certain arbitrary percentage of alcohol in your blood means you are impaired – ipso facto – and you are treated as if you did actually cause harm to persons or property – even though the former has not been established and the latter is manifestly not the case.

Your actual driving is irrelevant. All that matters – to the cop, the courts and the insurance mafia – is the arbitrary BAC level.

To get back to my buddy’s accident – or rather, the accident which befell him – in order to make the point:

The old man who veered into his path, struck his Jeep and (probably) totaled it received a minor traffic citation – Failure to Yield Right of Way – and was allowed to go home once all the paperwork was handled.

Another man – who didn’t veer into anyone’s path, or cause damage to anyone’s property or person – but who is found to have a .06 BAC at a “roadside sobriety” checkpoint – will find himself in manacles first, the backseat of a police car second and a jail cell third. He will be charged with a serious misdemeanor, one slim notch below a felony.

He will pay exorbitant lawyer bills even if he isn’t convicted.

And if he is convicted, he will also pay exorbitant fines as well as exorbitant insurance premiums for years to come. Probably, he will have his license to drive rescinded or restricted. He may be ordered to attend – and pay for – weeks of “alcohol awareness” sessions (i.e., ASAP).

This will happen in the absence of any harm caused – on the basis of presumed impairment.

It is not necessary for the court to establish that the offender’s actual driving was dangerous, as by testimony about weaving or some other objective evidence of poor driving.

it is only necessary to establish that the “drunk” driver had “x” BAC at the time of his arrest.

Try to imagine what the results would have been if my buddy had been run off the road by a young – and actually drunk – driver. It would have been more than a ticket. And yet, the end result – my buddy’s wrecked Jeep – would have been precisely the same.

But the treatment meted out to the cause would have been very different.

It is certainly not equal justice  – even though it is entirely “under the law.” Neither the young drunk nor the glaucomic/senile oldster meant to do any harm. Does this affect the state of my buddy’s Jeep?

But alleged impairment by alcohol is somehow regarded as a far more egregious offense than other forms of objectively demonstrable impairment – i.e., a totaled Jeep.

Even when the alleged impairment doesn’t actually result in any harm at all.

. . .

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48 COMMENTS

  1. >It is also presumed that a certain arbitrary percentage of alcohol in your blood means you are impaired – ipso facto – and you are treated as if you did actually cause harm to persons or property – even though the former has not been established and the latter is manifestly not the case.

    I got kicked off a jury once for pointing that out.:)

    • Hi Turtle,

      This “impairment” business is oily beyond belief – and tyrannical – because it isn’t objective. It is an arbitrary, one-size-fits all way to criminalize what amounts to sin rather than hold people accountable for harms they’ve caused. It is very much like the punitive taxes applied to cigarettes and the treatment meted out to smokers.

      Consider: If I put on a backpack that weighs 30 pounds before I head out for a run, I am impaired. However, I am still capable of running my usual 5 miles – something most people can’t do at all, let alone saddled with a 30 pound backpack. I can do it, because I am a fit guy who has been running 5 miles every other day for years. For me, running 5 miles without a pack is a light workout. I hardly break a sweat. So adding a 30 pound load would just make the run a little more challenging. But no problem.

      But take a guy who is not fit – who isn’t a runner – and load him up with a 30 pound backpack and let’s see what happens. He is impaired – as a runner – before he finishes tying his shoes. Forget the backpack.

      How is driving any different?

      A person who is an excellent driver to begin with is still a better (and so, safer) driver after having had a couple beers than a person who is an average (or less) driver without any alcohol in his system. He is certainly a better driver than an senile, glaucomic elderly person.

      America is prone to hysterics – and hysterics are defined by over-reaction. Thus, we have a system which describes as “drunk” a person who has trace amounts of alcohol in his system and who has given no evidence of “impairment” beyond the presence of that trace amount of alcohol in his system. The blanket presumption is that every person has very low skills and so almost any alcohol in his system at all constitutes catastrophic impairment.

      The corollary to this being that the “drunk” cannot drive home safely – a proposition as absurd as me being told I cannot run 5 miles with the pack on my back, because a sedentary non-runner isn’t capable of doing it.

  2. The tactic ive seen here in Houston for DUI or Hit and run is to…. Run for your life. In your car or your vehicle if still drivable.
    A) if cops find you later they cannot prove alcohol impairment
    B) your victim may not have got your license plate

  3. And if you have a commercial drivers license the presumption of impairment is .04, even if you are off duty and nowhere near a commercial vehicle.

    • Hi G7,

      Yup. Also, there’s this – which relates to the general topic:

      A few years ago, I looked into volunteering for the local volunteer fire department/EMS. I’m a fairly big/fit guy and figured it would be an enjoyable sideline for me (I am interested in learning basic medic skills) as well as a way to practice what Libertarians espouse – helping others freely.

      Now, keep in mind: This is not paid work. I would be giving them my time as well as labor.

      Well, I found out that a prerequisite is that I submit a pee sample – and that was the end of it as far as I was concerned.

      Do I “take drugs”? Sure I do – like most people. Alcohol being one. I also occasionally (once or twice a month) smoke a little pot. On my time.

      I refused to be treated like some kind of addict – and never pursued it.

      I also will never take a job that demands similar. Rather live in a van by the river, if it comes to that.

  4. I’ve saw the DUI business first hand in 1996. After it was all said and done, I lost my vehicle to the towing company. I had to pay for 7 days incarceration. I had to pay for counseling/aa. My fines were $2800. My license was suspended for 2 years. I lost my job due to no license. At age 21, my life savings was $4000. I worked min wage for years for that money. They took it all. Ruined my life. Then 2 years later they get me again with license reinstatemeent fees and sr22 insurance.

    This whole thing is a racket. I had never had any infraction until that day, and have not had another in the over 20 years since.

    • Hi Bin,

      A hideous story – and I experienced a similar ordeal, which led to my awakening.

      When I was 19 years old, a college student, I was arrested and charged with felony possession of a controlled substance, with intent to distribute. I had pot plants in my dorm room.

      My life hung in the balance. If convicted, I could have been sent to prison – and would have gone through life as a convicted felon, which renders a person a kind of Untouchable in our caste system. Unemployable, except as menial labor. Never trusted. A near certain guarantee of a hard/poor life.

      Luckily, the charges were eventually reduced to minor possession, but the lawyer bills were exorbitant and the stress almost broke me. But it made me realize how cruel the system is – and that others were not as lucky as I was. That the state destroys millions of innocent people’s lives over such nonsense. I italicize to make the point that such people haven’t harmed anyone and are therefore innocent of moral wrongdoing. It lit the intellectual afterburners for me – and I have been a hardcore Libertarian ever since!

      • yet you see photos of US soldiers strolling through poppy fields in Afghanistan without a care in the world. Our system we live under is very deep and very corrupt.

        • Hi Mark,

          Of course. There is a theory – and I subscribe to it – that the occupation of Afghanistan happened precisely because the flow of opium was threatened by the religious sect which had briefly seized control of the country and shut the whole thing down.

  5. Always ready to use violence against peaceful people, the heavily Morman state of Utah is lowering the DUI standard to .05.

    In order to maximize revenue enhancement, this law will go into effect the day before New Years Eve.

    • Hi T,

      I anticipate a national “zero tolerance” policy any year now; the logic of it is ineluctable. They will say “no degree of impairment” is acceptable. Good luck arguing against it. Not a single poltroon politician will – out of fear of angering “moms” and being seen as “not caring” about “the children.”

      • Eric,

        When the TSA receives arms I think we will see many things at the national level.

        They will of course change the name to Transportation Safety Administration.

      • The prohibitionists have been stuck at 0.08 for a long while now. My guess is that the states know their alcohol tax revenues and the revenue from bars and restaurants would drop more than they could recover through DUI arrests.

        As to Utah having an effective date that isn’t the first or end of the month or the first of the year telegraphs their intent quite well.

      • How’s this for “zero tolerance:” I know someone who, after getting discharged from the Army, went drinking with a fellow Army buddy who needed a bit of peer consolation over a few beers due to “issues” from his deployment.

        At closing time, he knew that he was too far gone to drive, so he did the responsible thing: crawled into the back seat, put a blanket over himself, put the keys in his pocket, and went to sleep.

        He was awakened by a cop beating on the window a few hours later and arrested for DUI, despite the fact that he was in the back seat and the keys were not in the ignition and the engine was not running and the vehicle had not been moved all night.

        If only he had been an illegal Mexican without a driver’s license instead of a veteran “fighting for muh freedom” he probably would have been all set!

        • Hi X,

          Yes, indeed. I try to get the word out about this. Many people have no idea that – per your post – one can be arrested for DUI/DWI if found asleep in a parked car. People – responsible people – used to “sleep it off” in the back seat. Now, it’ safer to just risk the drive home. Either way, you’re just as liable to be arrested for “drunk” driving.

    • i know this isnt PC but my business dealings with mormons have been nothing but negative. Very clannish and they dont mind lying either. I will never go to Utah ha

      • I’ve noticed that, too. My Mormon “friend” in high school was a compulsive liar and a sexual deviant. He was only allowed to date Mormon girls.

      • In Idaho, I deal with Mormons on a daily basis. Business and any other dealings. They are–over all– like other groups of people. Some of them lie, some don’t. I have had good dealings and horrible dealings with Mormons.

        As with any people, buyer beware is a good thing to go by. Use your gut. Never take for granted that someone is honest based on their religion or lack thereof.

        Granted, they are clannish as you say, but so are varying groups, clubs, religions, cults, etc., etc.

  6. Much of the reason drivers never have to give up their license has to do with the AARP and the World War II generation. AARP is extremely effective at keeping old people living whatever lifestyle they want (and enticing people into their lobbying group with restaurant discounts) and it made sure any attempt to require recertification testing or a medical checkup was quashed. Then they twisted the stats around to make it appear that old drivers are safer drivers even though I doubt that is the case given the far fewer miles driven and having the flexibility to not drive in unsafe weather (unlike the rest of us who have to drive at the worst times of the day, often in the worst weather conditions). And I think there was probably a pass given to all the PTSD’d people of the greatest generation, who went through alcohol prohibition, The New Deal, horrific conditions of world wars and the first ones exposed to modern savior-based politics. And they loved their cars too, because the interstates were the Internet of their time. Men of that generation (and my parents’) would rather be castrated than give up their cars. My grandfather actually died in his car, suffering a fatal heart attack on the way to run errands. Thankfully he realized what was happening and got the car parked or it could have been far worse.

    So no medical, no re-certification, no maximum age limit. Proving once again the driver’s license is only a national ID.

  7. Eric:

    Great points.

    This is why I’m predicting bad things for “legalized” Mary J that has passed in several states (mine included).

    As a libertarian, I’m of course open to the idea of any person using any drug they like, even some theoretical super drug that instantly kills 99.9% of the people who dare try it. Heroin, cocaine. meth, mainline gasoline – whatever you want – I don’t care – until you cause actual harm to me. “Actual Harm” including taxing me to pay for your “rehab” by the way.

    I’m afraid of the same “impaired” slippery slope now being applied to “high” drivers. Mary J can last 30 days or more in someone’s system. Tell me people who took a puff 2 weeks ago aren’t going to be going to prison for driving “impaired.”

    I already saw the bastards (or bitches) set up a wrecked car when I was in Vegas with “Cannabis Kills” on it.

    No doubt the “concerned moms” are already planning their attack.

    • Amen, Blake – I worry about this, too.

      Especially worrisome is that the “threat” of pot-impaired drivers will result in forced blood draws at these checkpoints, for just the reasons you’ve laid out.

      It’s another means by which they are making the idea of driving more and more unpleasant… so as to make us less and less inclined to drive.

      • “Especially worrisome is that the “threat” of pot-impaired drivers will result in forced blood draws at these checkpoints, for just the reasons you’ve laid out. ”

        That is exactly what happens here in Canada. The law was changed when pot was legalized. Not sure if you read the link the first time posted.
        https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/road-safety-rules-and-consequences/drug-alcohol

        Sure, you can refuse, but that is an automatic conviction without any kind of trial. The ‘choice’ is no such thing. Should and will be challenged in court, but of course the government has limitless funds, owns the court and ignores the written word of the law regularly. The courts treat all ‘rights’ as ‘privileges’. They ignore our own constitution too.

    • From 2016, I imagine they’ve progressed a bit since then:

      https://kdvr.com/2016/01/26/colorado-state-troopers-testing-marijuana-dui-devices/

      “If the devices is perfected… it could be worth millions to the vendor.”

      Of course the perceived infallibility of machinery over human judgement doesn’t help since it leads to a binary over/under threshold determination. We’re all different by nature, yet all the same under the Eye of Sauron. It’s actually pretty amazing that Uncle is able to maintain the obviously diametrically opposed opinions at once without realizing it.

      • Ready,

        “It’s actually pretty amazing that Uncle is able to maintain the obviously diametrically opposed opinions at once without realizing it.”

        That’s what Uncle is all about.

  8. “Another man – who didn’t veer into anyone’s path, or cause damage to anyone’s property or person – but who is found to have a .06 BAC at a “roadside sobriety” checkpoint – will find himself in manacles first, the backseat of a police car second and a jail cell third.”

    I thought the presumptive impairment level was .08. Is it different in your state?

    • Mike,

      Here is how it works.

      You can be charged with DUI if:

      You blow under the limit, even 0.

      If you are not driving.

      If the vehicle is not drivable. Even up on blocks.

      And you can be successfully convicted for any of the above.

    • Hi Mike,

      Yes, .08 is “presumptive.” But – tricky bastards – they can still arrest you and charge you if you blow less… it is at the discretion of the AGW.
      You will then have to prove in court that you were not “impaired.”

  9. Old people get a lot of leeway when it comes to driving when they should be giving it up. A good example is my own 76 year old dad. He was never that great a driver to begin with (lots of long time bad habits), and age has only made it far worse. Quick reflexes probably prevented crashes back in the day, but of course he no longer has that going for him. Typically he gets in a fender bender about once a year, thankfully low speed and nothing serious. Has replaced those plastic bumpers a couple of times bumping into things with his not so minivan.

    But most of the time he has gotten off completely scot-free. One guy who’s car he backed into, not only didn’t the guy not call the cops on him, he also refused to let dad pay for the damage he caused (one of the few times dad realized he was at fault)! So that fender bender isn’t even on his record.

    As i write this, dad is out there driving in the fog. He is retired so he has no reason to even be out there…..

  10. “supposedly” if you toss your keys out of the car when its parked you cant be charged for sleeping it off in said car. No idea if thats true and dont want to find out.

    • Keys must be hidden as far from reach as possible, (try and remember where you hid them) and when the AGW keeps drilling you about how you got where you are parked, you answer with this lone line ONLY.
      “I got here how I got here.”
      Never say any more than this, and HE WILL TRY to get you to reveal otherwise.
      This is sound advice from a state trooper that had to use this tactic himself against a county deputy when the trooper decided to pull down into a ditch and sleep off his evening.

  11. Regarding sleeping it off in the back seat.

    https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/road-safety-rules-and-consequences/drug-alcohol

    Operation is not ‘operation on a highway’. Operation period. You can get an impaired charge for driving around your own property after a few beers. Legally I can be done for using my backhoe, on my own property if I have a beer.

    The police have also gone onto private property (a bar parking lot) and pulled sleeping people out of their cars to charge them. Vehicle not moving or even running, on private property, not a state road.

    The latest changes to the law also allow forced blood draws. “It is also an offence to fail or refuse to comply with the request without a reasonable excuse.”

    WTF happened to the legal concept of “duress”.
    Note that what constitutes reasonable is not specified. How convenient for them. No matter what, you get charged.

    • There are only two county roads in our neighborhood. The rest are private roads.

      My understanding is the cops aren’t allowed to even pull over a vehicle on the private roads.

    • The worst thing about getting arrested for sleeping it off in a parking lot,,,, You did the right thing by not driving drunk…….. Isn’t that what they want? Nope. So you take the chance they won’t get you if you drive drunk instead……cause that is what most people will then do…

      So it only show’s that its a revenue generator rather then even a “safety” thing.

      If anything sleeping it off in the bar parking lot should be encouraged (though if it’s cold you better have the heat running at least). Taking a taxi or uber costs more money (because you have to get a ride BACK to the parking lot to get your car back the next day (I imagine taxi and uber drivers hate drunk passengers to begin with). Sometimes you only need a hour or two before your ok to drive too, so take that nap and drive home in three hours then.

      But with the government its a one size fits all, to hell with what actually works for the individual.

    • Given the number of stretches I’ve seen with DUI I’ve been waiting for cops to arrest people in their own homes because they have an arbitrarily high BAC and the car is in the garage and the keys are in the house.

  12. Driving used to mean freedom to me but now I really have too much to lose with all the liability. I have a few classic cars but I’m afraid to drive them. Very sad. Plus driving in Chicago is a nightmare anyway.

  13. On the Jeep, that particular kind of Jeep (if I am identifying it correctly and I may not because Jeeps aren’t something I know well) given the aftermarket support is rebuildable pretty much no matter what happens to it provided one is willing to spend the money. Insurance company wise it may be ‘totaled’ but if he can manage to buy it back or make some deal with the insurance company to keep it, it should be fixable provided a desire to do the work to keep it.

  14. “but who is found to have a .06 BAC at a “roadside sobriety” checkpoint”

    Did VA go to .06? I had not heard of any state going below 0.08 BAC except for those under 21. The prohibitionists have been trying to go lower than 0.08 but I had not heard of them being successful anywhere.

    Anyways the term ‘impairment’ is used because the prohibitionists and government know that at 0.08 BAC there is already a good overlap of demonstrated ability between those who are legally ‘drunk’ and those who are completely sober. Thus they came up with using the word impairment because that only means not as good as you would be otherwise. They moved the bar from an absolute scale to a personal one.

    So the old man in the story may not be impaired at all the way they see it. That may be as good as he can operate a motor vehicle. He may not be presently capable of doing any better. So he’s not impaired the way the control freaks use the term. Sure some old guy may be impaired by various physical maladies and general incompetence that the maladies caused to surface per Eric’s article, but he’s not impaired by some recent (within hours of using the vehicle) choice that the control freaks don’t like.

    • Hi Brent,

      .08 is considered “presumptive” for DWI but you can be (and people routinely are) arrested for lower BAC levels; it is at the discretion of the AGW.

      • Indeed. If you press the AGWs on this they will admit that even smelling it is enough if THEY THINK you are “impaired”.

        Also, remember the piece you wrote on the Drug Whisperers who are “trained” to be able to state, under oath, someone was on some drug, simply by looking at them.

        Imagine the medical testing that could be eliminated if these Svengarlics were properly trained.

    • Hi Brent,

      Indeed, quite so.

      I’ve ranted along the same lines as well.

      Take a driver with high skill, good judgment – and give him three beers to drink over two hours. He is technically “impaired” (BAC level) but probably still a better – safer – driver than most mediocre drivers are without having consumed any alcohol at all.

      I’ve been in a car with Bob Bondurant – who likes his drink. The guy is a better driver even at .12 than probably 90 percent of the general public at 0.0 BAC.

  15. And I’m proud to be an American where at least I know the government owns me.

    Eric, “it is only necessary to establish that the “drunk” driver had “x” BAC at the time of his arrest.”

    Possession of illegal blood (your own blood coursing through your veins) is a crime against the state.

    This is a law for the protection of American blood and American honor.

    An American citizen is a subject of the state who is of American or related blood, and proves by his conduct that he is willing and fit to faithfully serve the American people and State.

    This may shed some light as to why the 2020 census will ask every American household to record which members of their family are US citizens.

    • Being a “citizen” has all of the penalties, but zero rewards of being an alien invader who only ever sees the rewards. He who is born here has no rights to anything other than being a tax slave who will be sacrificed at the earliest convenience to those better voting aliens politicians cater to.

      • Though,

        “ He who is born here has no rights to anything other than being a tax slave”

        Please sir!

        I prefer human livestock. If you don’t mind.

        A slave is only 3/5 human.

        I’ve been working on this beer gut for almost 3 score. We’re talking hole hog here.

        • I’m thinking the term “Palestinianized American” should enter the surplus citizen’s vernacular ie “human livestock”. Soon enough we won’t be allowed to say or write anything other than our proclamations of our love of big brother. Cattle at least get to moo before their throats are slit. Seems being livestock might be a step up.

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