When does telling half of the truth become a lie?
A press conference was held on Tuesday of last week in Little Rock so that Mothers Against Drunk Driving (MADD) and the Arkansas State Police could announce their upcoming and half-truthfully-named “Over the Limit, Under Arrest” campaign for the Labor Day weekend, which apparently now runs from August 21st through September 7th.
To tell the truth and to be legally accurate, the slogan should be “Over the Limit or Intoxicated Based on Some Cop’s Opinion, Under Arrest.” That’s actually the law.
In Arkansas, and most other states, it is illegal to operate a vehicle with a BAC of .08 or higher OR to operate a vehicle “while intoxicated.” This lesser known “intoxication” part of the law becomes the “fall back” allegation in a DWI arrest in 2 common scenarios: the driver refuses to provide a BAC sample or the driver’s BAC result is LESS THAN .08.
It IS possible (especially for less experienced drinkers) to become “intoxicated,” and thus be guilty of a DWI, even with a BAC lower than .08. Only if you have a BAC of .04 or less are you presumed to NOT be intoxicated. This does NOT mean that the cop won’t arrest you anyway and let the court system sort you out (especially if the cop thinks he can add some allegations that you also ingested drugs). If you have a BAC greater than .04 but less than .08, there is no presumption either way.
So, if you have a BAC less than .08 or if you have refused the test, how can they still charge you (and possibly convict you) of a DWI? Because your opinion about your intoxication is much less important than the cop’s opinion. As the Arkansas Supreme Court put it in the case of Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999) (emphasis added):
The observations of police officers with regard to the smell of alcohol and actions consistent with intoxication can constitute competent evidence to support a DWI charge. [Internal Citations Omitted] Opinion testimony regarding intoxication is admissible.
In other words, “intoxication” is based on the cop’s OPINION. In addition to the cop’s OPINION of how you looked, sounded, smelled, and acted, the key to a cop’s case against you is his OPINION of how you performed on the Standardized Field Sobriety Tests. And, guess what, it is VERY rare that the cop’s opinion will be the least bit favorable for you.
Whenever I explain this to clients, they are almost always surprised by this part of the law. I have to believe that this is due, in large part, to anti-drunk driving campaigns that spout off rhetoric like “over the limit, under arrest,” which is, as you can see, only half true.
If law enforcement is concerned about preventing drunk drivers, then they might ought to considering changing the slogan. Nothing would scare me more as a potential drunk driver than knowing that my life were in the hands of a cop and his opinion. Maybe if the public knew that they could be convicted of a DWI based merely on a cop’s biased opinion, then they might think twice about getting into a car after drinking ANY AMOUNT.