One night early in my teenage years my father and uncle commanded me into the back seat of a pickup truck that belonged to their friend Frank. Frank had been drinking, and his wife had come out to our house to haul him off. This left my dad and uncle with the job of getting Frank’s truck back to his house. Now, the same basic logic that militated against Frank driving himself home should have also applied to these two: Frank hadn’t gotten drunk on his own. Yet it was understood there were degrees to this sort of thing, neither my dad nor my uncle being really so bad off as Frank, and anyway the flat practicalities of the matter demanded that Frank’s truck get back to his house, somehow. (I was sober as an unpeeled potato, but not yet of age to drive.)
We had been in The Park, our pet name for an area of half-domesticated land in the strip of woods between my father’s house and my uncle’s, just west of Talihina. It consisted of a bare-earth basketball court, a few rotting picnic tables, a wooden box with a metal lid that Frank had brought out there for pig roasts (you’d set the pig inside and light a fire on the lid.), and a ring of stones for campfires.
The favorite pastime of my dad and his friends in those years was to build a fire at The Park, drink beer, and talk, while we kids played basketball. When there weren’t any kids to play ball with, though, I still went out there and stood with the older men—mostly listening, sometimes sharing.
We all smelled like camp smoke as my father and I piled into Frank’s pickup (my uncle followed in his truck, to make the return voyage). I buckled my seatbelt as my dad angled his head toward me, chuckled, and said, “Son, you are about to receive a lesson in the fine art of driving drunk.”
On December 9, 2013, the Oklahoma Supreme Court denied a petition for certiorari filed by the Department of Public Safety in a case styled Roulston v. DPS. The Court of Civil Appeals had already decided Roulston on October 9, so the cert-petition was a Hail Mary.
The question in Roulston was whether the affidavit issued by a police officer to a person arrested for DUI had to contain a sworn report that the officer had “reasonable grounds” to believe the arrestee was driving drunk. The on-point statute said it did, but the affidavit issued to Roulston hadn’t contained that language—and indeed, none of the affidavits used by any Oklahoma law enforcement agencies contained that language, and hadn’t for the past five years. So when DPS lost Roulston, it lost every single driver’s license revocation it had issued since 2008. And now DPS, as cash-strapped a government agency as any other, might very well owe millions of dollars in restitution, and to the very class of people the agency is charged with protecting the public from: drunk drivers.
DPS runs a lot of things in Oklahoma, and one of them is drivers’ licenses. Whenever you go to your neighborhood tag agency to renew your license, you’re dealing with DPS. When you took your driving test at 16, or got your learner’s permit at 15-and-a-half, it was DPS who said how high you had to score, and what rules of the road you had to prove you knew
Also, whenever someone gets arrested for DUI, it’s DPS who decides if that person gets to keep his or her license. In Oklahoma, a first-time DUI arrest triggers a license revocation for six months—but so long as the arrestee requests a hearing on the revocation (a “driver’s license appeal,” in lawyer-talk) within 15 days, he gets a shot at winning it back. If he loses the appeal, though, the only way to keep driving is to put a breathalyzer machine in his vehicle. That machine costs money, obviously, as does getting the license back after the six months is over (DPS calls it a “reinstatement fee”). So DPS is in a constant state of processing thousands of Oklahomans in and out of the revocation/reinstatement turnstile. It’s an enormous job.
Which makes it no surprise that the Court of Civil Appeals’ decision, and the denial of a second-shot by the Supreme Court, would sit poorly with DPS.
John Hunsucker met me in the conference room of his law office, a few hours before his firm’s Christmas party. Hunsucker is one of three lawyers, along with Bruce Edge and DeAnn Taylor, who were responsible for the result in Roulston. Both Hunsucker and Edge practice exclusively in the field of DUI defense. I asked Mr. Hunsucker what drew him to that work.
“I think it’s the one area of the law where the highest number of innocent people are arrested,” Hunsucker said. By way of example, he explained that when a person is arrested for DUI, he’s told he has the absolute right to refuse a blood-alcohol test. If he does refuse, the only information the officer has on which to make the arrest is his or her subjective observation—that the person seemed drunk. Hunsucker challenges those arrests.
“We’ll pull the Intoxilyzer results for every test that officer has given,” he said. “Well, some of these officers are wrong 45, 50 percent of the time, where they arrested somebody and they blew under the legal limit. So are 40, 50 percent of the people who refuse the test actually innocent?
“It’s also a political crime,” Hunsucker said. “People are not drunk at .08; that’s absolutely ridiculous. When [the Oklahoma Legislature] went from a .10 to a .08 [in 2001] I thought, ‘Oh great, I’ll be able to buy a new pool!’ ” Hunsucker shook his head sarcastically. “No. The only .08s, .09s we see are the DUI jocks that are hanging outside the bar at two o’clock in the morning, pulling somebody over for a taillight out, which has absolutely nothing to do with whether they’re impaired.”
Almost by default, a lot of the people pulled over under circumstances like this end up being college kids. “If someone comes into my office who’s been arrested in Norman, I would say the chances are probably 75 percent that they were pulled over leaving Campus Corner between 1:30 and 2 o’clock in the morning,” Hunsucker said. “Pulled over for not using a signal taking a turn—again, some minor infraction.”
I asked Hunsucker how many cases like that he sees. “Quite a few, because there’s so much political pressure and so much money involved, as far as overtime shifts and grants, that they’ll try and work up the numbers, because they’re trying to get more federal money.”
You take a step back from all this, and a disturbing picture emerges: Law enforcement agencies are given financial incentives to target young people (college kids being the proverbial barreled fish for DUI arrests). Some of those kids will be able to afford a lawyer and get the slate wiped clean, while others (many more, in fact) simply won’t.
Yet at the same time, within the ranks of college kids driving home on a .08, there are no doubt several driving home on a .12, .15, .25—numbers that actually are dangerous. Cast a wide enough net, and you’re going to mess things up for a lot of kids who probably don’t deserve it—and who definitely don’t deserve a worse outcome than some other, identically situated kid, whose only advantage is money. But inside that net, odds are decent to strong that you’ve also caught a few manslaughters before they were able to happen.
Stated like a debate proposition, mixed with a little algebra: It is justifiable to hamper the future of x-number of young people in order to save y-number of lives.
Solve for x. Solve for y. Because as cold, as brutally cold, as it might seem, that’s the problem.
My grandfather, my dad’s dad, was a body man. He died when I was three years old. The earliest thing I can remember, actually, is seeing his casket, draped with an American flag, in a funeral parlor in southeastern Oklahoma. He died of throat cancer, a condition probably related to standing in a closed garage and breathing the fumes of Detroit steel for several decades running.
He ran for county sheriff twice—got close the first time, blown out the second. As a young man he’d enlisted in the Army right after Pearl Harbor and got sent, eventually, to Europe. His unit made him the cook. He had a habit of stealing cows from the French countryside, butchering them, and serving up steaks.
My dad told me that on his days off, my grandfather liked to take a little bottle of whiskey and drive around the back roads in his old pickup truck. Driving, sipping. Getting out to occasionally relieve himself.
“Those were good drunk-driving roads,” my dad said. “But you couldn’t do that sort of thing anymore. They have completely lost their sense of humor about drunk driving in this country.”
There’s something shocking about an attitude like that, to modern ears. As long as I’ve been alive, drunk driving has been a problem defined by body counts. At the same time, while my dad’s perspective seems hopelessly, perhaps even offensively, out of tune with how we talk about drunk driving, it doesn’t conflict at all with how people act. Drunk driving still happens, all the time. So much so that in May of 2013, the National Transportation Safety Board recommended lowering the legal blood-alcohol concentration limit again, from .08 to .05. The move met stiff resistance (including the opposition of Candace Lightner, one of the original founders of Mothers Against Drunk Driving). Interestingly, one of the facts cited by the NTSB in support of their push was that “[s]ince the mid-1990s, even as total highway fatalities have fallen, the proportion of deaths from accidents involving an alcohol-impaired driver has remained constant at around 30 percent.” So precisely as we’ve been getting tougher and tougher on drunk driving, the fatality numbers have stayed the same.
I had a talk with my dad about this, actually, while I was working on this story. I explained the story I planned to tell, about he and my uncle and the trip out to Frank’s house.
He chuckled. “Now, what did I say?”
I repeated the line about “the fine art of driving drunk.”
“I said that?”
“Yeah… I’m also going to use that line you used to say.”
“The one about there not being any sense of humor about drunk driving anymore.”
“Well, that’s just true.”
“I’ll have to take your word for it.”
“What do you mean?”
“I was born in 1984, man. I was never alive when there was a sense of humor about it.”
A short, dense silence.
“No, son,” he said, in the same gently exasperated tone he’d have used if I’d proposed, I don’t know, putting diesel into a gasoline engine to save on fuel costs. “It’s not that people used to laugh about it or anything. We just didn’t think it was a big deal. We didn’t know to think it was a big deal. We didn’t think about it at all. Same thing nowadays with texting and driving. You know they say that’s worse, really, than drinking and driving—in terms of how it actually affects you? And there’s barely any way to stop people from doing it. Remember that kid who died out here?”
There was a young man in my hometown who died just last year, right by my parents’ house. Tapping out a text message while driving his pickup.
“Hell,” he said. “What do you do?”
And that’s just it. The story of the law, of manners and conventions—the whole epic comedy of human history—is about our progress, or lack of it, in just trying to get people to do right, to do what’s obviously right, and usually what’s glaringly in their own best interests. Part of that struggle lies in coming awake to those things. The dangers hide from us, in plain sight. Look around you. Before the day is out, you will see, endorse, and probably engage in some form of behavior that a hundred years from now will seem as morally atrocious as toddlers smoking cigarettes.
And the people of the future? Who knows what terrible things they’ll be up to.
Originally published in This Land, Volume 5, Issue 3, February 1, 2014.