Almost everyone I know has a story to tell about themselves, a friend, a friend’s friend. It’s about the abusiveness of the police in the enforcement of drunk-driving laws. I’ve known people who were quite sure that they were not over the legal limit but suddenly found themselves cuffed in the back of the police car.
I know a guy who was arrested out of his own driveway, having driven home perfectly safely. I’ve seen lives ruined and wrecked by a system that presumes everyone is guilty and then proves it with scientific machines that claim to be accurate to three decimal points. The level of paranoia on this subject in American life is palpable.
So it’s actually mind blowing – or maybe once you hear this it will seem incredibly obvious – that the New York Times has published a massive investigation that shows that the science behind the breathalyzer is bogus. Tens of thousands of arrests have been wrong. Cases are being thrown out around the country. The company that makes the machines for the police stations won’t share its technology or submit to a serious scientific review of its technology. Lives are being ruined even as the evidence piles up that vast numbers of arrests for “drunk driving” are wholly bogus.
Quoting the Times:
A million Americans a year are arrested for drunken driving, and most stops begin the same way: flashing blue lights in the rearview mirror, then a battery of tests that might include standing on one foot or reciting the alphabet.
What matters most, though, happens next. By the side of the road or at the police station, the drivers blow into a miniature science lab that estimates the concentration of alcohol in their blood. If the level is 0.08 or higher, they are all but certain to be convicted of a crime.
But those tests — a bedrock of the criminal justice system — are often unreliable, a New York Times investigation found. The devices, found in virtually every police station in America, generate skewed results with alarming frequency, even though they are marketed as precise to the third decimal place.
Judges in Massachusetts and New Jersey have thrown out more than 30,000 breath tests in the past 12 months alone, largely because of human errors and lax governmental oversight. Across the country, thousands of other tests also have been invalidated in recent years.The machines are sensitive scientific instruments, and in many cases they haven’t been properly calibrated, yielding results that were at times 40 percent too high.
The story adds another several thousand words of horror stories about the use of fake science in the service of the machinery of compulsion and coercion that has entrapped millions of Americans and vexes all non-teetotallers on the road today.
It turns out that these expensive machines, both the ones carried by cops and the larger machines at police headquarters, are provided by only a few companies in the world and they are unwilling to open up their guts to serious peer review. They are poorly maintained and yet the numbers are invoked in court daily. The police have every incentive to allow them to be wrong so long as the results end in conviction.
The few times in which states mandated tests of the tests have resulted in shocking results. Something called the Intoxilyzer 8000 was tested in Vermont in 2005 and produced inaccurate results in “almost every test.” As it turns out, the only scientific way to determine blood-alcohol content is with blood tests. There are too many variables to make the breath alone reliable and yet breathing tests are the whole basis of drunk-driving enforcement.
The rounding-up problems and inflated numbers alone are raising questions about 45,000 convictions in Massachusetts and New Jersey. The trouble is that once the fake science is part of the court records, the accused has no viable option but to plead guilty and face a jail sentence and fines and ruined driving record, even if the person knows for sure that he or she was not drunk. When it’s the state armed with fake science vs. an individual motorist who had a couple of beers, everyone knows who wins.
This is a classic case of the dangers of scientism in the service of state-based justice. Put on the lab coat, sell the government a fancy machine, harass people with unending intimidation, and the result is vast injustice based on bad science. Citizens themselves have no recourse. This has been going on for decades in the United States and yet we are only now finding out about it.
There was always a potential for injustice at the heart of the rule against drunk driving since enforcement would always be based not on evidence of reckless driving but rather on the content of one’s blood. It was that which was being criminalized. In fact, there are many reasons one might drive dangerously: texting, physical exhaustion, sleep deprivation, bad day at work, fight with a lover, and so on. Nor is it the case that having a few necessarily and always results in endangerment of others. The only real sensible approach, then, is for the police to enforce the traffic rules, ticketing and arresting based on what the driver actually does.
The anti-drunk driving regime in this country was not based on that. Rather, it criminalized something that required a fancy scientific test to discover complete with black-box machines out of science fiction. Even if you are driving perfectly well, complying with all rules, endangering absolutely no one, you would be subjected to brutality at the hands of the police solely upon the discovery of a chemical in your blood, which, as it turns out, cannot be reliably determined based on any existing technology.
Think about this. The whole world is horrified by Elizabeth Holmes and Theranos’s claim that it could detect diseases via a tiny pin prick on the finger. That this company raised billions on an unverified claim has been the subject of vast outrage and criminal investigations. And yet we have what appears to be the exact same situation with the detection of drunk driving and yet it’s gone on for decades without much in the way of incredulity putting any damper on the arrest-and-jail machinery of the state.
Why is this? I would say the following. Theranos was subjected to a market test. Breathalyzers and Alcotests and so on exist within the apparatus of the state and have thereby been shielded from serious scrutiny. It has taken the New York Times and its intrepid reporters to blow the cover, and yet, realistically, it will be years before anyone can put a damper on the machinery of personal destruction that is currently in operation even in your hometown.
There are lessons here. The combination of state power and pseudoscience is a dangerous one. Criminalizing something that depends on the scientific accuracy of some secret test rather than observable behavior is itself fraught with dangers. The state cannot be trusted to police its own application of science in service of itself. It will always face an incentive to exaggerate to gain more money and more convictions.
Now is the time seriously to rethink the entire machinery of drunk-driving enforcement.