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by William J. Brune
"The government can't impose the death penalty for jay-walking. "
New York City Mayor, Rudolph Giulliani, picked February 22 to have his policemen begin application of a 1943 forfeiture law to seize the automobiles driven by motorists whose BAC [blood alcohol content] was .10 percent, which in New York and the majority of other states creates a presumption of driving while intoxicated. [Note: a "presumption" is NOT analogous to "guilt."]
This seizure of a vehicle can occur even at a roadblock where officers smell the driver's breath, and if it has an odor of alcohol , then the officer can legally require the driver to take a breathalizer test which will reveal - according to that instrument- the BAC of the driver. The driver is then charged with the criminal offense of "driving under the influence," and his car taken into custody. A civil action is then initiated to have the car ownership "forfeited" to the city, which then , presumeably, sells it.
Mothers Against Drunken Drving {MADD} hail this latest effort by the Mayor as commendable. Other law-abiding citizens across the land see it as the end to the tragedies wreaked upon tens of thousands of innocent person each year by drunken drivers.
It's hard - no, impossible - to offer a defense of those drivers whose reckless disregard of the safety of others causes so much human destruction. But in seeking a quick-fix, are we not again running rough-shod over our most sacred governmental document - the U.S.Constitution?
Many legal scholars - and in particularly the American Civil Liberties Union - doubt the constitutonalilty of this New York City ordinance, and the issue is sure to be tested in the Courts. And if the critics prevail, its application will fail due to the "cruel and unusual" clause of the Eighth Amendment of the Constitution.
There is the matter of "proportionality." Every penalty most be proportionate to the nature of the offense. The government cannot impose a death penalty for jay-walking. And to take away an automobile from a father of six who needs his car to go to work in order to feed those kids, and whose BAC was .10 % at a road-block is a bit much. The driver may have been followed by police by chance for a mile in the city and was not stopped because he was not doing anything to give the officers probable cause to stop him, yet, he loses his means of keeping his employent. It may be his first encounter with the judicial system. Not even prior driving offenses.
"Well , he should have thought of that earlier when he took those drinks," goes the call. But that does not work practically or fairly. BAC results are based on the weight of the person. The heavier the driver, the more alcohol he or she can absorb before registering .10% on the breatholizer. The driver may simply not had felt the difference in the one extra drink that brought about the .10 %. Besides, what society really wants to accomplish is to stop the carnage on the highways, and statistics will show that the average BAC of drivers involved in death or injury cases is .17% or above.
For any judicial system to function justly, it must first function fairly. So why not make the penalty fit the crime? Why not pass a law which addresses the problem: If a driver is involved in an accident which results in death or serious injuy to another, or has had previous convictions of driving under the influence, the the state [or city] may initiate a civil action, AFTER a conviction on the criminal offense, to forfeit the vehicle involved.
And to think Mayor Giulliani initiated the application of this old
ordinance to automobiles on the birthday of the Father of our Country ,
Georger Washington, the person who was the catalyst in holding the
delegates together at the Constitutional Convention!
