Awesssshhhhhhhhhhhuuuuuuuuuuuummmmmmmmmmmm, man!  WoooooHOOOOOOOOOOOOOOOOOO!!!!  I'm jesht gonna fin'sh thish 12 pack an' get on outta heeeeeeeere....

I'ves gots some DRIIIIIIIIIVIN' to do!

I have been defending drunk driving cases for more than 18  years.  Virginia does not need to strengthen its already draconian laws.  The fact is, for years Virginia has strengthened its DWI laws every year because it's a winning political issue.  It has become so impossible to defend such cases on the evidence that I have taken very few of them in recent years.  No point in taking the case if you can't help the client.

The presumption of intoxication based on a breathalyzer result is so strong that it's almost impossible to refute, even when there are obvious problems with the collection of or analysis of the sample.  Conviction is based on the breathalyzer result and has nothing to do with driving behavior.  And the impact of a DWI is NOT small.  It involves mandatory license suspension, ASAP participation, suspended or partially imposed jail time, and the requirement to purchase SR-22 insurance coverage, which is very expensive.  The law contains a graduated system of sanctions, so higher BACs (above .15) will result in mandatory jail time of 5 to 10 days and a mandatory ignition interlock system.  This is for first time offenders.  Trust me, there are all sorts of mandatory sentences involved for subsequent offenses, and 3rd time and above is a felony carrying a potential sentence of five years.  If there is a fourth charge the law specifies no bond until disposition.  A defendant sentenced to serve a felony sentence then faces post-release supervision for a term of six months to three years, depending on what the court has determined.

I know it's fun to demonize the drunk driver, but the fact is that there are two types:  one is the generally law-abiding type, a regular joe, who had too much to drink at a wedding or an office party or during a family function of some sort; and the other is the alcoholic or party boy, a Peter Pan type who refuses to take responsibility, or someone who often has other issues - manic depression, psychopathy, PTSD, etc.  These two groups tend to sort themselves out, as the regular joes learn a bitter lesson from their encounter with the system and are rarely seen again. Regular joes will often cause a "there but for the grace of God reaction" in others who hear their stories. Many people simply do not understand how easily alcohol impairs their ability to know whether they are competent to drive.  One conviction is usually plenty of information for them and they do not reoffend.  And the dirty little secret of a lot of drunk driving charges is that they do not arise out of driving behavior, but on things like headlights that are out, missing tail lights, and expired tags.

Now, as to the list of proposed legislation in Fisher's article:

Increased jail time - this was not actually an increase in time, but in mandatory time, for 3rd time offenders within ten years who currently receive mandatory time of 90 days to receive virtually the same mandatory time, six months, as 3rd timers within five.  No big deal, but a pretty narrow provision.

Mandated special license plates - requires 3rd time or more offenders who register vehicles in Virginia to have special plates for five years.  Isn't this a little crazy?  Let's say Daddy Drunk buys his kid a car for school.  He has to register the car in his name because the kid's a minor or has no credit, but the kid's got to drive what amounts to a scarlet letter around for his father's shame??!!  What about Daddy Drunk's wife?  This legislation is begging for people to come up with dodges, registering cars in third parties' names, to avoid the plates.  Not good.

Banned open containers of alcohol in the passenger area - how does this protect us from drunk drivers?  As a matter of fact, states which allow open containers have a lower drunk driving rate than states which do not.  It punishes any person possessing an alcoholic beverage which is not in "the manufacturer's unopened, original container".  Okay, so I go out with relatives, we share a bottle of wine, and I decide to take the remainder home, allowing my completely sober daughter to drive.  But if she's stopped then we're both on the hook for the wine?  What if I'm carrying a jar of my special home-made margaritas to a party?  Let's have perspective.

Mandatory six month suspension of drivers license of someone providing alcohol to persons under 21.  There's already a law on the books providing for suspension up to one year.  There's just no mandatory time.  Okay, so my 20 year old Marine niece, fresh back from her second tour of Iraq, comes to visit and I buy her a beer in celebration.  I should lose my license MANDATORILY for six months?  Sorry, I'm annoyed at the whole "you're old enough to fight, kill, and die at 18 but can't have a beer till you're 21" mentality in the law, which is not only incredibly hypocritical, but which also encourages the sense among the young that alcohol is a forbidden fruit which must be enjoyed privately and in great excess rather than experienced as something one matures into using in a responsible manner.

Drunk drivers eluding police - eluding police already IS a felony.  Once again this is about some legislator's beloved mandatory minimum sentence, in this case 6 months.  The standard for proving eluding is very low and sentencing discretion should remain with the court.

Highway signs memorializing victims of drunk drivers - is a highway death due to drunk driving somehow more horrible than one due to cellphone distraction, reckless driving, or road rage?  That's what this bill appears to say.

Finding of drunk driving based on BAC as measured "anytime after driving" rather than "while driving".  This was introduced by David Albo, which in itself makes me not like it.  Occasionally it is possible to defend a drunk driving case on grounds that the alcohol level rose during the period from which the person was pulled over to the time the breathalyzer is administered.  A breathalyzer is administered sometime between 20 minutes and 2 hours after the traffic stop.  BAC levels rise for some time after consumption and then decrease, which means under certain fact patterns it's possible to call into question whether the person was drunk "while driving".  Everything else is so stacked in the DWI law that I'd hate to lose this last distinction. 

That's about it.  I think Marc Fisher was totally off-base in this column and didn't really ponder the consequences of some of these proposals.

Someone with the courage and insight to tell the truth about these draconian laws.  Easy to trot out these provisions in an election but at a certain point, enough is enough.  Thank you Catzmaw!!

scratch for some time, now.  I am pretty annoyed that I get calls from military recruiters trying to get my 18 year old son to sign up for military service, but that if he signed up and I decided to buy him a beer we'd both be in a lot of trouble.  How is it possible that a young person is old enough to die for his country but not old enough to buy a beer?  How is it that his parents or friends who might want to buy him a beer as he leaves on his way to face snipers, IEDs, and terrorists are all enabling underaged drinking and should be punished with loss of license? 

Then there is the fact that once you hit 18 in this state you are considered an adult for all other purposes besides buying alcohol.  I've had clients barely past their 18th birthday who've been convicted of felonies and sentenced to jail with the other "adults" even though the drinking laws presume that they are so juvenile, so incapable of making mature decisions, that they cannot be trusted with a lousy beer.  It's hypocrisy.

I understand what the aims are of MADD and all that.  I agree that drunk driving is a bad thing, but this idea we have in this country that no one under 21 should allow so much as a sip of beer or wine for fear that he or she would drink to excess and drive irresponsibly is ridiculous.  It's something imposed upon our young people by the feds, who will deny highway funds to any state that allows the under-21 crowd to drink, but the same feds will accept the signatures of the under-21 crowd to contracts obligating them to military service.  And the same feds will lock up the under-21 crowd in adult prisons and impose upon them the duty to act as responsible adults when it comes to things like possession and sale of drugs, burglary, assaults, etc. 

So what are people under the age of 21?  Are they kids?  If so, why do we hold them as responsible for crimes and anti-social behavior as people over 21?  Are they adults?  If so, then why can't they walk into a bar and order a beer or a glass of wine?  Why can't their parents take them to a bar and order for them a glass of wine or beer?

The thing is, most people recognize how stupid all of this is, which is why so many adults turn a blind eye to drinking by the under-21 crowd and why so much of the under-21 crowd feels free to flout the law.  No one really respects this law, and everyone can see the hypocrisy in it, so let's not act surprised that it is so widely ignored and that the law by extension becomes something to be disrespected. 

This is all very un-PC of me, but it's what I've concluded after years of criminal law practice.

If they are old enough to die (and be held responsible for all other behaviors) they are old enough to have a beer.
Truth should always transcend "un-PC".

this one.  Thanks.

Only she doesn't go far enough. 

For every case in which a judge or jury doesn't impose "enough" prison time (the rationale for mandatory minimum sentences) there are two cases where the defendant didn't really deserve that much time.  When someone doesn't deserve the time that they get, judges and juries don't convict.  THe whole system is distorted.

Virginia's sentencing scheme has always given to judges and juries a great deal of discretion to punish criminal behavior.  Many of the bills being put forward this year are designed to remove that discretion.

I'm not sure that is a good thing.

Delegate Albo's true sin is demonizing his own clients, pushing through harsher DWI laws & penalties to ultimately leverage higher fees from his clients while using the same legislation to smoke screen his pipeline to the alcohol industry donations.

Beyond that, Virginia has some of the harshest and most intrusive DWI laws in Virginia.  They are hypocritically pushed some of the most conservative, anti-government legislators in the Commonwealth, like Albo, who love to preach small government when it comes to government regulation of the economy and big government when it comes to legislating against what they perceive as sin - abortion, homosexuality, etc. 

What is likewise disgraceful is that Mark Fisher, Albo, et al. are pushing busy pushing us back to the days of Scarlett Letters for adulterers and branding people's foreheads for hog theft sometimes with the help of suburban progressives who think they are being tough on crime while they fight anti-choice legislation of the same ilk.  I like to think that the United States is moving beyond Third World retributory criminal penalties, but maybe not.