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Fiandach & Fiandach (Rochester NY)

585.244.8910

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Are You Proud of What You Do?

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by Edward L. Fiandach

In a word, yes, but that begs the obvious question, why? The answer to that is a bit more complicated and encompasses a bit of history.

One of the most difficult concepts that I try to get my students at the University of Rochester to grasp is the unique nature of the American Revolution. An attempt to equivocate the change wrought by this cataclysmic event in human history causes me to think of the terrible asteroid collision that wiped out the dinosaurs some sixty five million years ago. How so? Consider for a moment what historian Gordon Wood calls the Radicalization of the American Revolution. The most profound change was the onset of an entirely new way of viewing both ourselves and our relationship to government. Prior to the Declaration of Independence, the citizen viewed himself as subservient to the state, which in most cases meant the King. Further, the extent to which individuals could grow was limited by a caste based society in which wealth and heredity controlled. One would no more believe that he or she was equal to nobility than I would feel my dog is to me. The creation of a government ostensibly founded upon the maxim that “All men are created equal” changed all that. Despite the fact that actual implementation took almost two hundred years, the average man truly believed that he was to be served by government and that he was the equal of all those he encountered.

How does that play into today’s topic? Simple. The American ideal is that in principle our societal decisions are made through the concept of majority rule. I say “in principle” because the onset of political parties following the administration of James Monroe and his “Era of Good Feelings,” substantially altered the goal of representative democracy. Special interests, as expressed through the gyrations of political parties, play a significant, if not overwhelming, role in legislation. The need for votes, which equates to cash, has not only led to countless pieces of unwanted legislation, it has driven the populace in many instances to accept the position of a vocal minority.

Drunk driving legislation presents an example of just such a position.

Now we all know that drunk driving, and here I mean drunk in the classical, not legal sense, is dangerous. No one needs an on the dole legislature to tell us that. But the problem here is that American law no longer criminalizes drunk driving, it criminalizes driving after the consumption of alcohol. With the exception of one state, the blood level that is prohibited is no longer drunk. Forgive the tautology, but drunk is drunk. We all know what a drunk person looks like and while we could waste pages discussing the symptoms, its not the two or three glass of wine school teacher or nurse. The problem with DWI is not the driver, it’s the law. Drunk is no longer the operating definition. The primary purpose, to punish drunk drivers, has been overtaken by the all powerful blood alcohol content. In this regard, Washington, through the blackmail of Federal highway funds, has jammed absurdity, in the form of .08, down the collective American throat. Absurdity? Yes, absurdity. Kurt M. Dubowski, one of the nation’s foremost alcohol safety experts, in Alcohol Determination in the Clinical Laboratory (74 American Journal of Clinical Pathology 747[1980]), defined .01 to .05 as “sobriety.” He defined .03 – .12 as “sociability, talkativeness, increased self confidence, decreased inhibitions, diminution of attention, judgement and control, loss of efficiency in finer motor tests.” While not optimum, this is hardly a definition of drunk. The fact is that prior to the formation of Mothers Against Drunk Driving, .15 was the bench mark considered by the American Medical Association as drunk.

What’s that about accidents? The statistics will simply not support the present paranoia about DWI. As I observed in a lecture I gave in Manhattan last year, less than one half of one percent of all reported incidents of actual drinking and driving resulted in a fatal accident. If we make an effort to process these figures with all who drink and drive, the figure is more like 3/100ths of one percent.

Cutting to the chase, vocal special interests have not only forced the enactment of laws that utterly fail to comport with science, they have managed to reprogram society with their agenda driven beliefs.

Breath testing displays yet another variant of this DWI theme. As I explained in my last piece, a conviction based upon this highly questionable technology is deficient for at least three absolute scientific reasons. Nonetheless judges, juror’s, appellate courts and even the person on the street generally believe that these inexpensive voodoo boxes work . . . that is until they’ve been charged, blow and realize “that can’t be right.” When you couple a DWI breath test result with the conclusions that a motorist was unable to pass a ridiculous series of failure oriented physical tests, “you,” in the words of Professor Harold Hill, “got trouble.”

So what does society, as opposed to the special interests, really want? While figures vary widely, one commonly accepted benchmark is that the average American will consume over 25 gallons of beer, 2 gallons of wine and 1.5 gallons of distilled spirits annually. Additionally, Madison Avenue (do we still use that term?) will chew through two billion dollars a year in alcohol advertising.

From the foregoing, it seems to appear that our draconian DWI laws are but one more example of “don’t do as I do, do as I say.” Hence I’m proud of what I do. On the whole, I give the schoolteacher celebrating her birthday a chance to retain her job. I give the MBA student who has expended more than three-hundred thousand dollars on his education a chance to use it for more than flipping hamburgers. My job, reduced to its barest essentials, is to right two wrongs; my client’s, but more importantly, that of society as well.

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