CRACKDOWN ON DWI

The cops are out, there’s a tough new law and the mothers are still MADD

WE GOT ONE right after coffee break. We had stopped for pie and coffee at the Denny’s on Industrial-you know, the one across the street from the Quality Inn? It had been a pretty slow night-even for a Wednesday. Earlier, we’d pulled over a Mexican family in a pickup truck for speeding down Samuell Boulevard. But it turns out they were in a hurry ’cause the kids had to go to the bathroom.

Well, right as we leave the coffee shop, we spot this silver van drifting on and off the white line. The driver looks as if he’s locked in a straight-arm with the wheel. His head’s tossed back at an angle like some sort of life-sized dummy. We tail him for a few hundred yards before the sergeant turns on the red lights. Then we let out a whoop that I reckon to be the siren. The driver of the van brakes real hard in his lane, then pulls over to the left – smack dab in the center of an intersection. He trips as he gets out of the driver’s seat, then stands there real straight-like, in his sock feet. Looks like we got a live one.

We’re cruising for drunks.

It ’s pretty black out there on Industrial at 11 o’clock at night. But Frank jumps out with his flashlight while the sergeant walks up to the driver and says, “How-areya tonight?”

First words out of the guy’s mouth are, “I had six beers.” And the next thing you know, he’s wearin’ handcuffs and we’re all ridin’ downtown to the jail.

This is crackdown. Crackdown on DWIs.

It’s not stretching a point to say that, in this part of the world, we haven’t paid much mind to drinkers who drive. Or, for that matter, drivers who drink. We’re the folks who –just last year– refused to pass a law that would outlaw open containers of alcohol on the road. I’ll have a six-pack to go. Pour me a roadie, please. God, I don’t know how I made it home last night.

Well, the cops have been trying to tell us about it for years. Drunk drivers kill. Worse sometimes, they maim. They weave and wobble and drift and swerve and slur and slobber and go the wrong way on an exit ramp. And we’ve all been there. One way or another, we’ve all been there.

Does it bother you that on any given weekend night, one out of every 10 drivers on Centra] Expressway is probably legally drunk? It bothers the Mothers Against Drunk Drivers (MADD). It bothers them a lot. It bothers them so much that they’re down at the courthouse making sure the drunks meet with justice. Most of the mothers have had friends or family that met their Maker at the hands of a drunk. To them, DWI is not just another round of “Hey everybody does it and besides I can drive better with a couple of drinks and hell no you’re not driving this car.” To their way of thinking, drunk driving is a license to kill.

Then there are those who see it another way: The defendants and lawyers who know the good ol’ boy couldn’t possibly have had more than a couple of beers. He couldn’t have been drunk enough to have a .19 concentration of alcohol in his blood. Why, he balanced his cowboy hat on his knee for a full half hour. And even if he did have one too many, he wasn’t doing anything wrong. He was upholding a fine Texas tradition-one hand on the steering wheel, one hand on a cold beer. Oops, is that a lamppost ahead? Better be more careful next time around.

Well, the day of reckoning seems to be here. Enough people are saying enough. We’ve even got us a new law-a tough new law. A law that should make you quake in your boots the next time you press the pedal after happy hour. The cops are out, and the district attorneys are fired up to prosecute. Some of the judges are still on the fence, but even they are bound by a law that stipulates stiffer fines ($100 to $2,000) and, on the second offense, a mandatory 72 hours in jail. Ever seen the inside of Lew Sterrett? You wouldn’t want to.

Take poor Robert, the guy in the van. He spent 10 years on the San Antonio police force. He spent last Wednesday night in jail. He told us, no way was he drunk. Then he blew a .24 on the breath test (.10 is the legal definition of intoxication). Robert padded off to a holding cell, still in his sock feet.

How did we come to do a double take on DWIs? How did we come to set up roadblocks (“driver’s license checks”) on Greenville Avenue? For that matter, how did we build up to a frenzy that recently saw some preachers warn the Mesquite City Council that there’d be “blood on their hands” from drunk drivers if they approved a dance floor in the Trail Dust Inn? And how do we work the kinks out of a law that is long on intentions and short on experience? And finally, how do we protect the inevitable innocents who get lost in the shuffle after the horses are out of the barn?



BEFORE 1980, there surely were people who felt outraged by the high incidence and the tolerance of DWIs. But it’s safe to say that Candy Lightner, the founder of M ADD, put the cause on the map. On May 3, 1980, Lightner’s daughter Cari was killed near Sacramento by a hit-and-run drunk driver. The man had been out of jail on bail scarcely two days following another hit-and-run crash. That’s when Candy Lightner got mad. What began as a one-woman vendetta mushroomed into a powerful, vocal non-profit organization now 280 chapters strong.

A little over a year ago, Lightner moved the national headquarters of MADD to the Mid-Cities hub of Hurst. Following in close pursuit was the blinding beam of the public spotlight. Suddenly, all our efforts to sweep the streets clean were on view: our legal reforms (and the lack thereof) and our special enforcement squad, our candlelight vigils and our courtroom scraps. We’ve been especially privy to the internal squabbling within MADD.

Despite its unswerving devotion to a good cause, some people don’t like the way MADD has gone about its business. They say that the explosion of publicity and power has gone to Lightner’s head, that she and her fellow campaigners have pushed their pressure tactics too far. Last year several MADD board members got mad and resigned. Their charges were all aimed at Lightner. They accused her of creating a conflict of interest by accepting a $180,000 contribution from the nation’s largest brewery, Anheuser-Busch. They were outraged by their founder’s request for a huge salary boost-while MADD volunteers everywhere work for free. They complained that Lightner dipped into the MADD operating fund for personal loans totalling more than $8,000-and they insisted that she pay them back.

Frequent fodder for criticism from the outside has been the way in which MADD monitors the courts. Lightner realized early on that even the meanest cops and the baddest DA’s and the strictest laws wouldn’t add up to one whit if the charges turned to dribble in front of a judge. And judges have to be elected every four years, remember? So the mothers slipped into the courtroom pews and began to watch. They made note of those jurists who tended to lean lenient on DWIs. Sometimes they even sent postcards to their constituents around election time. The judges didn’t really like that.

The defense attorneys don’t like it, either. They don’t think that the fate of their clients is any business of Dallas MADD chapter president Milo Kirk’s. One lawyer in town, Ken Blassingame, got into a heated rift with Kirk over a letter she wrote to Judge Berlaind Brashear. Kirk asked him to “use his discretion” in considering a motion to suppress a blood test as evidence in an upcoming trial. “Hay-ell, she stood there in front of witnesses and said she was there to influence the judge. That’s against the law,” says Blassingame. He got so riled up that he asked the DA’s office to file Class A misdemeanor charges against Kirk. They refused. “I have no axe to grind with MADD’s legislative efforts or their efforts at publicity,” Blassingame says. “But when they try to screw around with individual cases, my client’s civil liberties are at stake.”

Milo Kirk believes that judgments on drunk drivers are her business-and every other concerned citizen’s, as well. She, and thousands like her around the country, are determined to build a grass-roots ground-swell for DWI victims’ rights. MADD’s victim services and support groups have received far less publicity than their courtroom skirmishes or lobbying on Capitol Hill. Says MADD’s executive director Philip Roos, “Helping victims is apple pie and motherhood. There’s no conflict in it, and therefore no story.” Kirk agrees: “People think that MADD is only interested in changing the law. That’s not true. We work within the law, no matter what it is. But we’re always going to be in the courts seeing that the laws are enforced. We are the voice of the victim.”

No doubt, MADD members at DWI trials will rankle lawyers and judges until they are accepted as a fact of courtroom life. Mean-while, within the organization, things have simmered down. In June, a new board operating under new bylaws was installed. Almost the entire headquarters staff has been replaced by hired manager Roos-a practicing clinical psychologist and former national director of the Association of Retarded Citizens. Roos admits that he found the organization “rather primitive” when he was hired in April 1983. It’s his task to shape the scraggly edges of a makeshift structure into a smooth, integral whole.

Even with a facile machine, MADD faces an uphill climb. Though they count the new law (which went into effect January 1) as progress, the failure to pass a ban on open containers was a blow. Locally, an effort is being aimed to create a similar ordinance on a city level such as the one passed in Arlington recently. MADD is also working to raise the legal drinking age to 21-a move thought to have little-if any-support in Austin. Other priorities include passing legislation that will allow victims the right to testify at a trial, and taxing liquor licensees for the purpose of a compensatory fund for victims. None promises easy victory.

To spread the word and garner support, MADD relies on the media and on a trained cadre of speakers who will carry the message to any group, large or small. “But there’s only so far an organization like MADD can carry a mission like this,” says Roos. “After that, it has to be public opinion.”



WHEN THEY START pulling cars off Greenville Avenue for a “driver’s license check,” word gets around. Dallas police are prohibited from stopping cars expressly for the purpose of hunting for drunks, but checking for I.D. seems to work just as well. During prime DWI time-evenings and weekends -you may hit a roadblock on Greenville or seven other high-risk areas citywide. The public clamored for a crack-down, and the cops answered with a clarion call.

Actually, we have had a special police DWI Enforcement Squad since 1977. But according to the captain in charge, Leo Savell, “its effectiveness was not really known” for the first five years. Savell explains that as police chiefs change, so do philosophies. “There have been studies that say enforcement is really not a factor in reducing fatalities,” says the captain. “[Former police chief] Byrd believed that, King halfway believed it, but Prince does not.”

It was in March of 1982 that the Hall Street blues began to come down hard on hazardous violations and DWI. All of the officers on the force now are educated in the techniques of identifying drunk drivers. Special emphasis is placed on the recording of detailed, accurate reports that will stand up later in court. Interestingly, things like empty beer cans and bottles don’t mean much to a jury or judge. Says Savell, “Let’s race it, they could have drunk those a month ago.” What does count is the eyewitness account of how the guy maneuvered his vehicle-and how he subsequently behaved.

What the cops see when they see a DWI is a lot more subtle than you would think. “Most people expect to encounter a falling-down, commode-hugging drunk,” says Sgt. G.D. Benningfield, who heads up the special squad. “It’s just not so. The first things to go are judgment and vision.” Drunk drivers don’t always speed; sometimes they drive 10 miles per hour under the limit. They don’t necessarily bounce off the median strip; more likely, they’ll drift from lane to lane. They might make a turn way wide, or forget to turn on their lights. Says Ben-ningfield, “Intoxicated drivers who have an alcohol concentration of .10 or slightly more and those who have a high degree of learned tolerance will not exhibit gross symptoms of physical impairment.”

Officers with DWI detail work four days a week-Wednesday through Saturday- from four in the afternoon until four in the morning. They do nothing but circle the eight target areas searching for DWIs.

Critics of the special squad contend that officers have always stopped drivers they suspected of DWI, but now they are much more likely to take them in for the Intox-ilyzer (breath) test. That means a trip to Lew Sterrett and the automatic towing of your car. Even if you should pass the test-in other words, come up with an alcohol concentration of .09 or less-you’re out the towing charges for your car, and you’ve just spent two hours or more at the jail. Defense attorneys even report a growing number of clients who claim they passed the test, but got socked with charges of public intoxication anyway.

Officers are supposed to conduct thorough field sobriety tests before any mention is made of arrest in order to determine the extent of intoxication. You know, the ole “walk 10 paces counting out loud and in a straight line.” You’ll be happy to learn that the methods of judging drunkenness have become more sophisticated since the drag-net days. Now, many officers base their decision on the “nystagmus” gaze test, or an involuntary jerking of the eye. What happens is, the officer holds a pen or pencil right in front of the driver’s face and asks him to follow it with his eyes. If he’s intoxicated, his pupil will make the trip with several exaggerated jerks. A trained policeman can pretty well guess what the guy’s alcohol concentration is by measuring the degree of nystagmus. If for all of the reasons above, the officer has sufficient reason to suspect DWI, out come the handcuffs and on goes the seat belt for the trip downtown. “Drunks are unpredictable,” says Benningfield, “so we handcuff everybody, even Grandma.”

Once at Lew Sterrett, the procedure is conducted in a small, enclosed room where every move is recorded on videotape. The new DWI law specified that all municipalities of 25,000 or more install video camera equipment. That way, all parties involved as a result of prosecution can have a view of the events as they actually occurred. Unfortunately, police officers and prosecutors are already worrying that lay people, i.e. juries, will not think that the suspect looks “drunk enough.” The cameras are set up high in the corner of the room, precluding close-up shots that might focus on nystagmus, bloodshot eyes or other telltale signs of intoxication. “We don’t really know whether the tapes will help or hurt us in court,” says Ben-ningfield, “because nobody has tried a case yet under the new law. But we’re already working on a better way to do the taping.” The fear is that the apparent sobriety of the suspect will fall right into the defense attorney’s hands.

The Intoxilyzer test itself is a relatively uncomplicated procedure, requiring eight continuous seconds of your breath. (Try it sometime when you’ve had a few drinks.) The test measures the alcohol vapors, and within seconds produces a digital readout recording grams of alcohol per 210 liters of breath. The magic number is .10. Anything over that means you’re off to a holding cell, where you’ll stay until a judge can see you and set your bail.

No aspect of the DWI arrest procedure has stirred more controversy than the Intox-ilyzer. Opinions of it range from those of police officers who swear, under oath, that the machine is absolutely infallible, to charges by defense attorneys that taking a breath test is something akin to submitting to a fortune teller. Attorney Charles Tessmer has written a scholarly treatise on the inaccuracies inherent in the test, including sample questions to be used to discredit the State’s witness in cross-examination. Critics charge that the device not only is subject to all sorts of instrumental failings, but that the cutoff recording of .10 is a ridiculous measurement to apply to all sizes, shapes and constitutions of people. Says lawyer Randy Taylor, “To insist that all persons are intoxicated at .10 is absolute hog wash.”

The prospect of enduring the indignity of a DWI arrest is anathema to all of us law-abiding types. The thought of it happening to us, or maybe to someone we love, is frankly terrifying. But even more frightening-if it’s true-is the charge made by DWI defense attorneys that 15 to 20 percent of people hauled down are innocent. “From time to time, law enforcement concentrates on a particular thing-prostitution, gays, armed robberies, whatever,” says Taylor. “Now it’s DWI. And it’s damaged a lot of people-especially economically.”

One case in point is a man who was stopped by a roadblock on Greenville. He apparently had a surly attitude, and even though he wasn’t drunk, he got arrested for suspicion of DWI. His lawyer, Paul Fourte, contends that he blew a .00 on the Intoxilyzer, and they charged him with public intoxication. The case was eventually dismissed-but not before the man racked up a hefty attorney’s fee.

The defense attorneys who specialize in DWI are as cunning and as colorful as those who defend routinely in more heinous crimes. Taylor is known for his histrionic appeals to the jury-appeals designed to make jurors identify with his client in the manner of “There, but for the grace of God, go I.” Typically, Taylor parades around the courtroom in handcuffs to demonstrate the indignities suffered by his client, and his latest trick is to play on the widely publicized Don Byrd DWI trial.

“When I go to the jury for punishment,” Taylor says, “I’ll say something like, ’My client here has the same right as a president, or a governor, or a mayor or a sheriff to walk in front of you and receive fair sentencing. He’s not trying to weasel out of it on some technicality.”

Naturally, histrionics cost-and any DWI defense is going to run into big bucks. Vic Sasso, a young attorney who has recently won eight acquittals in a row, says he charges somewhere between $1,500 and $2,500.

But a drawn-out case with a full-blown trial can cost as much as $15,000. Couple that with the fact that the conviction rate on DWIs ranges somewhere between 95 and 97 percent, mostly due to plea bargaining. The district attorney’s office offers, say, a $750 fine, 30 to 60 days in jail probated for two years, and a mandatory 12-hour DWI course. Take it and it’s over. Refuse, and you go to trial.

A lot of judges view DWI as something less than a crime, and the probated sentence is still very much the mode of the day. But here’s the catch: Under the old law, any sentence that was probated didn’t count as a “final conviction,” thus, it didn’t show up on your record. The only way you could move into the harsher punitive realms of a repeat offense is if you actually spent time in jail- and hardly anyone did.

Under the new law, any sentence, whether it includes jail time or not, counts. First and second offenses are misdemeanors, but the third is a felony-punishable by up to five years in prison. With the fourth, you can lose your car.

The obvious question here is, has it helped? Is the DWI crackdown reducing traffic injuries? Is it saving lives? The answer is yes.

During the years from 1977 to 1981-before the police officers came down in force-the number of fatal traffic accidents increased by about 10 percent each year. In 1982, that number dropped. A lot. From 231 in 1981 to 184 in 1982. In 1983, we got down to 162, and are headed on the same course this year.

Are there concerns-legitimate concerns? Yes, again. We don’t know yet how the law is going to stand up in court. The videotaping procedure may have to be overhauled- at additional expense. The tremendous bottleneck at Lew Sterrett is taking officers off the streets for two or three hours-hours they could be making more arrests. There are problems, surely, with hostile or biased enforcement.

There is concern that the law and its potent enforcement is lost on the group responsible for most of the deaths. That those mostaffected are those who need it least-peoplewith the greatest sense of responsibility.That just as in the days of the big drug round-ups, a certain number of undeserving citizens are being unfairly charged. None of uswants to applaud a regime or practice thatimpinges on civil liberties. But when youcome down to it, what is even a civil liberty stacked up against a life?

Alright lady out of the car!”



THE STORY I’m about to relate is so bizarre, you’re going to think I made it up. But it’s true, and the officer who stopped me knows it’s true.

It was about 3:45 a.m. when I headed home after a long night riding with two officers on the DWI special enforcement squad. I was aiming my car toward North Central Expressway from the police headquarters in Deep Ellum when out of the blue, I saw an unmarked squad car coming toward me, head-on. I pulled to a stop, cracked my window and locked the front door. A uniformed policeman came to my window and said, “Alright, lady, out of the car. Let’s get these handcuffs on.” In my bleary condition, I assumed he was joking. I laughed nervously, and uttered something dumb like, “Oh, that’s right, I’ve been watching you guys catch DWIs tonight.” “Likely story, lady.” answered the cop. “Now get out of the car and get these handcuffs on.” “No really, I’ve been riding with Sergeant Benningfield until just three minutes ago,” I said. He says, “Oh, you’re a reporter, huh? Well, won’t this be the fitting end to your story-being picked up for DWI. You’re going the wrong way on a one-way street.”

It turns out, I was driving down Commerce instead of Elm. It’s dark down there at 4 o’clock in the morning! Eventually, the officer reluctantly believed my story and let me go. But I’m telling you: If it happened to me, it could happen to you. And we didn’t muck around with field sobriety testing before the handcuffs came out.

So here’s what you need to know before you try to drive after you’ve had a few drinks. There’s a formula that can help you compute how many drinks you can have before you are legally intoxicated. If you are a woman, take your body weight and divide it by 180. That will give you the number of drinks containing one-half ounce of alcohol you can consume to equal a .02 concentration of alcohol in your system. A 130-pound woman, for example, can drink .72 drinks (or roughly three-fourths of a drink) to hit .02. To reach .10-the legal definition of intoxication-she would have to drink five times that amount, or a little over three and a half drinks in an hour. The body burns off approximately .02 every hour, so she’d have to drink another three-fourths of a drink every hour to stay at that level. For men, the method is the same, but the formula is different: body weight divided by 150. While you’re sober, figure out the number of drinks you would have to consume to be DWI. Then, you’ll know when to call a taxi.

Sometimes it’s tricky to figure out how much alcohol is in a drink-especially if you didn’t mix it yourself. But there’s one-half ounce of alcohol in one ounce of any 100-proof liquor, in a 12-ounce can of beer and in most 4-ounce glasses of wine. So three-and-a- half beers, or three-and-a-half glasses of wine or three-and-a-half drinks mixed with one ounce of vodka or such would put our hypothetical woman over the edge. Got all that?

Now, that’s how much you have to drink to 5e legally drunk. Here’s where you have to be driving to meet up with a member of the special squad: Industrial Boulevard, where the peep shows and nude bars are; Corinth Street; Second Avenue; South Lamar; Samuell Boulevard in East Dallas. The infamous Harry Hines or the famous Greenville Avenue. And last but not least, West Northwest Highway-home of Caligula and other brazen hot spots of the night.

What will the cops be looking for? I’llgive you the top five in the Guide for Detecting Drunk Drivers at Night. All of these”visual cues” carry a statistical probabilityof 60 percent or greater that the driver isdrunk. No. 1 one is turning with a wideradius. We saw one of these, but the guy wasjust eating a sandwich. He, however, is theexception, not the rule. No. 2 is straddlingthe center of the lane marker. Robert madethat mistake. No. 3 is appearing to be drunk.The sergeant says this is how he catches amajority of his DWIs-just by looking atthem. No. 4 is weaving, and No. 5 is driving on other than the designated roadway. Iguess that was me. -RMF

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