In reading the Oregon Supreme Court’s new opinion on State v. Moore, I was shocked to see this statement: “As part of the state’s effort to deter persons from driving after drinking, ORS 813.010 creates the crime of driving under the influence of intoxicants.” Slip Op. at 5-6 (Dec 12, 2013).
I was unaware that the state had an interest in deterring perfectly legal behavior. It is not illegal to drink and drive — it is if you’ve had too much. “Too much” means your BAC at the time of driving is .08% or higher, or that you’ve had so much to drink that you’re adversely affected in your mental or physical faculties — that you’ve lost control (in the language of the jury instruction, that you’ve lost the control you would otherwise possess.). That’s not one beer, for most people, nor one glass of wine. If science supports banning alcohol and driving, then test that proposition in the crucible of the democratic process (spoiler alert: Science does not support that proposition. Nor would the people. Nor would their legislature.).
What the Court’s dicta boils down to, I think, is that it would be obviously simpler for the Government if there was a blanket prohibition on drinking and driving. We could choose that sort of society. Simpler. Easier.
We don’t do that, I submit, because of the liberty cost. Enjoying a glass of wine with someone you love over dinner can be part of the joy of life. Having a beer with a co-worker can be fun and enlightening. Driving thereafter does not and should not make someone a criminal, evil, or even unwise. It means the opposite — that they’re enjoying the responsible use of alcohol. Abstinence is easy. Teaching it is simple. The problem is: it may not work in the real world for the majority of people. And judicial pronouncements like the one above — to the effect that the state has a philosophy to discourage adult, legal conduct — should chill us all. I want the state involved in conduct that hurts others. Responsible drinking — and driving — don’t.Because it is, by definition, driving that is not adversely affected by alcohol. That is why we have the .08% standard, and the requirement that the police prove that a person’s mental or physical faculties were in some way impaired because of alcohol. The mere consumption of alcohol is not such proof. At one time, Oregon courts were brave enough to even say such a thing. “[A] moderate odor of alcohol – standing alone – is not sufficient to give rise to a reasonable suspicion that a defendant has been driving under the influence.” State v. Ziebart, 172 Or App 288, 291 (2001); State v. Stroup, 147 Or App 118 (1997) (“By themselves, a slight odor of alcohol, bloodshot eyes and an admission of drinking alcoholic beverages do not establish probable cause that defendant was mentally or physically impaired by her consumption of alcoholic beverages[.]“).