A Brief Moment of Lucidity

(This entry is the first in a series on the state of freedom in the District of Columbia.)

The D.C. Council's vote this past Wednesday to curb the District's zero-tolerance law giving police officers the discretion to arrest individuals driving with even minimal amounts of alcohol in their system represents an uncharacteristic lurch towards reason.

The swift action by the Counsel came primarily because the Washington Post reported the travails of one Debra Bolton, energy lawyer and single mother of two, whose single glass of wine with dinner resulted in her being handcuffed, searched, arrested, jailed until 4:30 a.m. and charged with driving under the influence of alcohol. All of this over a blood alcohol content measuring .03.

When word of such arrests spread, the thuggish police state activity didn't go over well with the citizens. Local bars and restaurant establishments, who already have the possibility of a smoking ban hanging in the balance, reacted with alarm. Prohibition policy on the road is bad for business that relies in part on alcohol. Even a City Council like D.C.'s can understand the outrage when its members are swamped with irate phone calls.

I learned about D.C.'s zero tolerance policy two months ago, having learned about it during a half hour conversation with a police officer as noted in my August 5th posting The Human Cost of Bureaucracy. As the officer described it, his fellow officers often gave individuals suspected of having alcohol in their systems the option of locking their keys in the car and calling a cab. Apparently some officers "didn't get the memo" on this more reasonable application of the law. Now officers' discretion will be reduced if Mayor Williams signs the emergency bill.

But don't be fooled. The Council's actions the past few days are not evidence of a sympathy towards individual liberty. The Council understands that sales tax revenues will decrease if people are afraid to venture into the District for a drink, when they can stay closer to home in Virginia or Maryland. The Council also understands that quick action in response to voter outrage is the best way to quell an uprising. But the change-- which would parallel the laws of neighboring states by holding that drivers with less than .05 blood alcohol are presumed not intoxicated --is only temporary. It is also an issue more easily turned into a rally for change.

Less obviously pernicious, but still very troubling, are D.C.'s photo speed cameras. My driving philosophy is "swiftly but safely." I drive as fast as I feel comfortable, considering what is safe for myself and others. And so do many other drivers, notwithstanding the posted speed limit of 45 MPH towards the end of I-395 where it dead-ends (an absurdity in itself) at New York Avenue.

The District has installed at speed camera along I-395 within D.C.'s city limits, hitting me twice (so far) with $100 tickets for driving 61 MPH in what should be a 55 MPH zone. Fair enough as far as the first ticket goes, it is the law after all. But the second, which I just received the other day, is constitutionally troubling.

The Fifth and Fourteenth Amendments to the Constitution (Harriet Miers, are you taking notes?), require that a government give its citizens "due process" when applying its laws. Due process requires adequate notice of the law. Although the posted speed limit may be 45 MPH, if drivers routinely operate their vehicles at a rate ten to 15 miles per hour more than the posted limit as a matter of course without consequence, citizens begin to realize that the "real" speed limit is not the posted limit. When a government decides to tighten enforcement of a lax law, it again gives its citizens notice of the true state of the law.

In September, I received a ticket that was mailed 10 days after the violation in mid-September. That isn't a bad turnaround time. But what to make of the ticket I received in mid-October for a violation from late August? The District hired a corporation that has no incentive to notify the driver of his/her need to comply with the suddenly-strictly-enforced law. An individual who drove the same route every day could easily rack up $1,000 worth of fines before ever receiving notice of the first violation. It has a wiff of a due process violation and the pungent smell of unfairness.

But unless Debra Bolton, the victim of D.C.'s absolutist alcohol laws, becomes a Cindy Sheehan-like opponent of the District's motor vehicle laws, don't expect the District's manner of applying the speed cameras to change. The speed cameras operated at the corporation's expense translate into easy cash for the District. Council members who pride themselves on their progressivity will not reconsider this regressive tax on motorists without a Bolton-like incident.