Drunk Driving Laws – Wrong approach and a lot of wasted money

The popular (and perhaps populist) approach to drunk driving is increasing strict limits on blood alcohol content (BAC) and increasingly harsh penalties. This is the wrong approach.

Keep in mind when I say this that I’m a DWI lawyer in Albany, NY. I make good money off this system. If there were fewer DWI arrests, and if the consequences were less severe, I’d get fewer clients and I wouldn’t be able to charge as much money for what I do. I’m arguing for an approach that would cost me a lot of money.

DWI laws start (in NY at least) at a BAC of 0.05. You might think otherwise, but I have had clients who were charged with BACs as low as 0.05 (that one was dismissed). I’ve had a couple of others at 0.06 and 0.07 (both resolved with violations not a part of the DUI system).

0.05 is too low of a threshold. So is 0.08. Personally, I don’t believe much in the BAC system at all. If the person is impaired or intoxicated, then prove that. The BAC system makes it easier to convict people, even when they’re not a problem on the road.

I’ve blogged about this before in a DWI-related post on my Albany Lawyer blog.

From the policy perspective, there are other things we can do that would be more effective.

What can we do that would work better? How about a genuine mass transit system for the greater Albany area? Then you zone areas around certain stations for nightlife, with little or no parking nearby. Now drinkers have a way to get to their watering hole without driving. Inherent in this approach is the recognition that drinking is a normal part of human existence, instead of the prohibitionists mindset that drives current laws. Mass transit would save so many lives even beyond DWI.

How about changing local zoning codes so bars can’t have more than 1 parking space for every four customers (figuring # of customers for an average night)? Currently most towns require such establishments to have lots of parking. If we modify the zoning to reduce parking, that would encourage carpooling (with a designated driver, hopefully), mass transit, and taxis.

How about getting rid of speed traps on safe highways, and putting those cops on a detail to look for problem drivers? Remember the TV show CHiPs from years ago. Ponch and Judy (I forget the other guy’s name – John?) would sit on bridges watching the highway and when they saw a problem driver they’d check it out. Now we’ve got these highly trained Troopers sitting in U-turns with the mindless task of tagging safe drivers with a laser and then ticketing them for driving as fast as the Trooper drives on his own time.

All of these things would be more effective, less expensive, and less intrusive in the lives of regular people. DWI charges are devastating to the average Jane or Joe. Let’s stop wasting their money, and while we’re at it, stop wasting ours.

Byy the way, I’ve been accused on occasion of thinking outside the box. I think the ideas above are an example of that. My weakness is not being too good at thinking inside the box. I don’t really consider it a problem but others do.

Is Gillibrand chicken?

Here’s a line from Gillibrand’s website:
“I am not afraid to put out policy ideas and will discuss them in open forums throughout the district during this campaign and hopefully well beyond.”

I’m not sure what she means by an open forum. I offered to debate her (and I believe Eric Sundwall has extended the same offer). I’ll debate her anytime, anywhere, on any topic. She can choose the time, place, manner and topic or topics. I’m happy to have Sweeney, McNulty and Sundwall invited as well. If she wants the debate in her district, that’s fine with me. If she really wants to discuss policy ideas, then all she has to do is let me know when and where — she can even surprise me with the topic. Still no response after 3 weeks. Maybe a debate isn’t an open forum … but she did challenge Sweeney to a debate. Hmm.

I wonder why Gillibrand is dodging this. If she debates me and Sweeney doesn’t show, she gets good press coverage and Sweeney looks like a dope or a coward (not sure he’d look different if he showed). Except of course, maybe she’s not really ready to debate. She seems good at politics, but policy may not be her bag. She knows Sweeney can’t debate his way out of a frat party, so she can challenge him and not worry about it. I don’t think that’s really it. She probably would do okay in a debate (as long as she stays away from her idiotic position on CAFE standards).

The other problem is that if she agrees to debate me, I get good press coverage and that helps me against McNulty. She doesn’t want to step on his toes. Of course, everyone tells me he’s invincible so why would it bother him? Answer: Because he’s not really invincible if his challenger gets press coverage.

Gillibrand is smoking something

All this talk about medical marijuana, and now we find out Kirsten Gillibrand is smoking something.

Apparently she just took the position that the “corporate average fuel economy” (CAFE) for each car manufacturer in 10 years should be 60 mpg. If I’m not mistaken, there’s not a single car on the road in the US that gets 60 mpg. The Prius comes close, and the Insight is no longer being manufactured.

And she’s talking about 60 mpg being the average. That means some cars would have to do better than 60 mpg, and few cars would be viable if they did much worse than 50 mpg.

I don’t know what she’s smoking, but she’s smoking something, and it must be good. Maybe she was sitting in the garage too long with the engine running and the Carbon Monoxide went to her head.

CAFE is just plain stupid policy. Regulations like CAFE are not the real answer to raising fuel economy (which we should do). Take a look at Japan and Europe. They have no CAFE standards. But they use much less gasoline overall and fuel efficient cars are much more common. Gosh and golly gee whillickers, how do they do that?

Big gas taxes. Gas in Europe and Japan costs between $4.50 and $6 per gallon these days there, and their prices have been high for a long time. Our prices only recently got to $3/gallon, and just a few years ago were near $1/gallon. If gas cost $5/gallon consistently here in the US, people would drive more fuel-efficient cars. It’s that simple.

But let’s be very, very clear, I do not for one second support increased gas taxes unless there is a corresponding reduction in other taxes. If the typical driver does 12,000 miles a year at 25 mpg, that’s 480 gallons a year. A $2/gallon gas tax would cost that driver about $1000 a year. So we need to give the average person a $1000 reduction in taxes somewhere else — preferably in lower income taxes at the bottom of the scale.

Think about it. In this scenario, if you want to pay less taxes, now you have some choices. You can drive less (carpool, mass transit, etc.). You can drive slower (using less gas). You can get a more fuel-efficient car.

And if you don’t change your driving behavior, don’t come crying to me. You know what you have to do. I would be affected more by this since I drive about 20K miles a year, mostly for work and therefore unavoidable.

And if a lot of people change their behavior, we’ll have less revenue. But then again, we won’t have to waste money monkeying around with the Middle East anymore either.

McNulty – Wasting Money on Pork – The Flake Amendments

Congressman Jeff Flake of Arizona recently tried to do something to slow the porkfest in Washington. He put forward 19 amendments, each of which would remove certain earmarks — pork barrel spending usually targeted to an individual congressman’s district. Flake’s effort is being watched by many, including the Club for Growth (clubforgrowth.org).

While Flake didn’t make much progress on slowing the pork, he did force all member of the House to vote on the record. The incumbent in our district (NY-21), Mike McNulty, voted against all the amendments — in favor of every single pork item. None of the items were for pork in our district. Nice to see he’s bringing home the bacon for others.

Keep in mind that McNulty has consistently rated among the biggest taxers and spenders in Washington. Not too long ago he was ranked the second-worst member of the House by the National Taxpayers Union. Even if you think those rankings are partisan (they are), he was still worse than all Democrats but one.

Second worst! I’ve said it before and I’ll say it again — you don’t want me batting for the Yankees and you don’t want Mike McNulty batting for you in Washington.

As a side note in the Sweeney-Gillibrand chronicles, one of the 19 votes concerned an earmark in Sweeney’s district. He voted against all of the amendments too. How can either of these guys be called a conservative??

I support Congressman Flake and would vote to eliminate all earmarks. While we’re at it we should eliminate their parallel in the NY legislature — member items.

Sweeney and Gillibrand fight over who’s a bigger whore

The Times Union’s Capitol Confidential blog has a great post about 20th district insider candidates Sweeney and Gillibrand fighting over who has raised more money from outside the district. The answer is that they’re both whores for special interests.

Next they’re going to argue about who started it.

Is Luther Forest a waste of money?

Interesting op-ed piece in today’s Times Union supporting the proposed chip plant in Luther Forest (which is in the neighboring 20th congressional district). This follows on a previous op-ed piece that opposed the plant, or rather, the $1.2 billion subsidy going to the plant.

I’m sorry to say I don’t know enough to say whether the $1.2 billion is a good investment. By that I mean that I’m not sure how much of the $1.2 billion is government spending as opposed to a break on future taxes that would have been paid by the plant. If it’s just tax breaks, then that’s money we wouldn’t have gotten anyway, so I don’t see a loss there. If it’s taxpayer money going in, then it’s a boondoggle.

Today’s writer compared the chip plant to the Erie Canal. The theory is that the plant will create benefits beyond the jobs inside the plant. That’s baloney. They say the same thing about stadiums, and Jerry Jennings’ proposed civic center for Albany. I wonder if anyone’s figured out how much money has been lost so far on the Pepsi Arena — which used to be called the Knickerbocker Arena until it lost so much they had to sell naming rights. Or is it going to be the Times Union Arena next? I heard a local personal injury law firm was in the bidding.

The Erie Canal created benefits beyond itself because it created a new avenue for the (literally) flow of commerce. My pet project, a mass transit system for the Capital Region (funded privately and not with taxpayer dollars), would also create such benefits. The first op-ed piece also suggested mass transit.

If we are going to fund chip plants, I don’t think Luther Forest is the best place for the money in this region. Fulton County was once home to a thriving leather and glove industry (that’s what it’s called Gloversville). Those industries have withered, leaving tremendous water capacity behind them. There’s enough on tap (again literally) for two microchip plants. They have all the other infrastructure necessary. And while Saratoga already has a thriving economy, Fulton County is struggling and the plants would be a much bigger boost there. So why not develop chip plants there? Maybe because it’s not in Joe Bruno’s district.

A huge waste of money – the War on Drugs

I have been a critic of the drug war for a long time. I like to say it’s what got me off the couch. I mean that quite literally. In a short span of time I watched two documentaries on PBS, one about the drug war (named “Snitch”, from the Frontline series) and another about Elizabeth Cady Stanton and Susan B. Anthony (by Ken Burns). So I see these two women who fought for 60+ years for suffrage and it didn’t happen until after they had died. Then there’s this great societal wrong in our time – the drug war. And there I was, sitting on the couch watching it.

I got up. I joined some groups. I created repeal.net, a website critical of the drug war and advocating the repeal of drug prohibition. Eventually I decided that the various groups I had joined were not accomplishing enough (a bit like the problems the suffrage movement had), and I had to do more, so I started getting active in politics. Then I decided to run for office and talk about this issue.

I’m not some phony who vaguely says he supports drug policy reform without having any substance behind it. Our DA ran on this issue and continues to prosecute drug offenders even more aggressively than the last guy. On Unlawful Possession of Marijuana cases, his office is particularly bad, trying to impose illegal conditions on routine dismissals.

I genuinely support reform. Prohibition doesn’t work. The incarceration of drug offenders is wrong, even unconstitutional (I wrote an article on substantive due process and the drug war – warning – the article is pretty boring, even for lawyers).

The incumbent in my race now says the war in Iraq is a colossal failure and the biggest blunder in the history of warfare. Aside from his utter ignorance of history (at least he could watch The Princess Bride), one has to wonder what he thinks of the War on Drugs. Isn’t it a colossal failure? How about the biggest blunder in the history of pseudo-wars (War on Poverty, War on Terror, …)?

But let’s get to wasting money. The War on Drugs costs about $100 billion a year. This includes money wasted spraying RoundUp on peasants in Colombia and Afghanistan, border efforts that manage to catch about 1% of the drugs coming into the country, and a heck of a lot spent on police, prosecutors and prisons. So there’s about 500,000 non-violent drug offenders behind bars in the US. Check my math, but at $40K/year that’s about $20 billion right there. Add in the other stuff and you get to $100B pretty quick.

Is it working? When I was in high school (graduated in ’84), the only drugs I saw were alcohol and marijuana. I had the sense that there were other drugs around, but never saw them and the use was limited to a few people. Most of us just drank a lot and some of us smoked marijuana occasionally.

Now, drugs are commonplace in high schools and not at all rare in many middle schools. As I like to put it, any kid in any school can get any drug they want. I used to add “if they try hard enough,” but then some teens told me I was wrong. The two quotes I remember are: “all you have to do is ask” and “the drugs come to you”.

Another way I like to put it is to ask a high school kid what would be easier for them to get in 30 minutes without leaving school grounds — a marijuana cigarette or a six-pack of beer. They always answer marijuana.

In 2004, the incumbent attacked me for my views on the drug war. Of course he avoided stating his own position on the issue. No surprise there. That’s smart politics.

I often get asked what my answer is to the drug problem. Do I want to legalize drugs?

In 1933, alcohol prohibition was repealed. The repeal did not include any solution to the alcohol problem. And just about everyone agrees that repeal was the right decision in 1933. So why do I have to have a solution to the drug problem now? Repeal of drug prohibition is the right answer now, just like repeal was the right answer in 1933. What we’ve learned in the past 30 years is that the current policy is worse than not having a policy.

I’m not suggesting that heroin be provided as part of the school lunch program, or put on supermarket shelves. There are many ways to deal with the drug problem. I have my personal view, but I don’t think my way is the only way. As long as we end the stupidity of the current policy, I’ll support anything reasonable in its place (including no policy at all).

My personal take is that marijuana should be treated generally like we now treat cigarettes and alcohol, since it is less harmful than those drugs. Most of the other currently illegal drugs should be available by prescription — doctors should be able to prescribe heroin for heroin addicts, for example. This is done in England, Switzerland, and Holland. Heroin addicts there commit far less crime, have fewer social problems, and are more likely to maintain a steady job.

I don’t like using the word legalization because it has been demonized for decades. If legalization means a really horrible policy that will encourage children to take heroin and cocaine, then of course I don’t support legalization. If legalization means doing the same thing we did with alcohol in 1933 (bringing about a huge reduction in violent crime and many other benefits), then yes, I do support that.

Anyway, we’ve been wasting $100 billion a year for a while now on this stupid pseudo-war. Let’s stop wasting that money.

ps: After writing this I was looking at something else and noticed a report from Citizens Against Government Waste called Wasted in the War on Drugs. They don’t go far enough, but they make some good points and show some of the waste.

No response from Gillibrand

Just a quick note that Kirsten Gillibrand, the 20th district Democrat challenger, has not responded to my debate challenge. She had challenged Sweeney, the Republican incumbent in her district, to a debate. I thought her challenge to him was not genuine and was just a political ploy. Looks like I was correct.

There’s a bit more to the story. I was contacted by one local television personality who offered to host the debate and contacted her campaign. Still no response. That’s because she has no interest in a substantive debate. She’s playing the traditional political game of building positive name recognition while saying nothing controversial, and at the same time going negative on the incumbent.

Gillibrand is just another political insider who brings nothing of substance to the table. So far she’s showing a lot of political smarts and she’s raised a lot of special interest money. Sadly, that’s already what we have in Washington.

Media bias in elections

We often hear about media bias, usually in the form of accusing the media of a liberal bias. I don’t pay too much attention to that kind of bias. There’s probably ideological bias both ways. I read the Wall Street Journal and love most of it, but the op-ed page is a little too blindly pro-Bush (though they do go after him on economic issues from time to time — for being too liberal).

What I find most troubling is a combination of pro-incumbent and anti-challenger biases. These biases are common in various institutions. For example, when I ran in 2004, the Fulton County YMCA had a dinner and had the incumbent in my race as the keynote speaker. I was not offered a chance to speak. When I contacted the head of that YMCA, a guy who I know fairly well, he would not give me any opportunity to speak at all. I don’t mean to single out the Y. The Albany-Colonie Regional Chamber of Commerce did the same thing.

In first confronting this, you might think there’s nothing wrong with this. But there is. The biggest problem for most challengers is name recognition. Incumbents already have it and want to reinforce it. Challengers want to get it in the first place. By having an incumbent politician speak at your event, and further by refusing to give a challenger equal time, you are helping the incumbent in that race.

Let’s turn to the media. First, it’s very difficult for challengers to get covered at all. In my 2004 race, only the Times Union gave my campaign significant coverage. Other major papers in the district (Troy Record, Schenectady Gazette, and the Fulton County Leader Herald) ignored me. The Gazette and Leader printed a couple of letters to the editor mentioning me, but between them I think they wrote one article mentioning me. The Record attended a debate but wrote no article about it, and then endorsed the incumbent shortly before the election, misstating one fact in a way that favored the incumbent and exaggerated something about me in a negative way. TV and radio news coverage was almost non-existent. A couple of channels did about 30 seconds on the debate. Channel 13 gave me the best soundbite in that one and I still fondly remember the newscaster who called me to check on it before it was aired. Alan Chartock and Fred Dicker interviewed me on their shows, and they were both fair and pleasant. One popular radio personality openly refused to mention me, even refusing to let me speak at an open mike event he had set up at Crossgates. He told me I’d have to pay for airtime. I should also mention that the Metroland gave me decent coverage, and the Amsterdam Recorder mentioned me a few times.

I’m going to focus on the Times Union though. While I will be demonstrating their bias, it is still among my favorite news sources in the area. While their approach was biased, it was the least biased of all media in the area. The Troy Record was the absolute worst.

Anyway, the TU had about 15 pre-election articles in 2004 mentioning me related to the campaign, including a couple of articles that were pretty favorable. The best was about my appearance in a Japanese newspaper. I met a reporter from the Yomiuri Shimbun (one of Japan’s largest papers with a huge readership) during the Republican convention, and she wrote an article about me. I called the TU and said that if my campaign was newsworthy in Japan, you’d think it would be newsworthy here. The reporter was not interested in my campaign, but thought the appearance in a Japanese newspaper was worthy. While I was disturbed by his values, the article was great. There were several other articles, most of them good.

But compare their coverage of the incumbent. Doing a search in their archives shows over 150 articles with his name (searching for michael AND mcnulty in 2004). So he got roughly 10 times the coverage. And this was mainly because I made a big effort to get them to cover me. The 2002 challenger got virtually no coverage.

Beyond the difficulty getting covered, one also sees another kind of bias. I actually mentioned this in a letter to the editor to the TU on August 23, 2004 (which to their credit, they printed). When they do mention challengers they often use subtle (or not-so-subtle) negative terms to describe them. In that letter I referred to their use of “relatively unknown” or “little-known”. In the last couple days the TU has twice referred to my 2004 campaign as “unsuccessful.” Yes, I do know I didn’t win the election. But one could easily say that I had a better than usual campaign. I got 30%, while the past 7 challengers got 25%. When you consider how little money I spent, getting a 5-point increase was actually quite an accomplishment. Of course I hoped for better. But the point here is that they’re associating me with a negative word — unsuccessful.

They’ve covered the incumbent’s flip-flop on the war in Iraq. They mention that he voted for it and now calls it a colossal failure. But they don’t describe it as a flip-flop or put any other kind of negative spin on him. Look at his quote: “the Iraq War is one of the biggest blunders in the history of warfare.” How about attacking him for voting in favor of the war?? Where’s the negative spin? The TU blog post mentions that he “voted in favor of the Iraq war”. How about saying he “foolishly voted for the war”, or some other negative take? I’d pick the word cowardly, since chickenshit is too coarse for a newspaper. How about calling him up and asking him to explain why he voted for the war in the first place. Here’s a guy who calls his own vote “one of the biggest blunders …” and they’re not calling him on that. Incumbents get a free pass.

Unless, of course, they get challenged by a special challenger. In the 20th district, Kirsten Gillibrand has been anointed somehow as a worthy challenger. The TU has made an editorial decision (consciously or subconsciously) to cover that race. Is it because Sweeney gets caught drunk at frat parties, or because Gillibrand raised a million dollars from PACs and New York City liberals? Probably both. I don’t mind them covering that race. But why the editorial decision not to cover the race in the 21st – or at least not give it as much coverage? Why not cover the Libertarian candidate in the 20th district? Even if you think he doesn’t have a chance of winning, he might get enough votes from one side or the other to make a difference in the race between the two others. He might force them to talk about issues they don’t want to discuss. Do a search in 2006. 46 articles mention Gillibrand. Sundwall (the LP candidate) is mentioned once (in an article where Gillibrand is in the headline with Sweeney). But don’t think Gillibrand is getting such a great deal. Sweeney (sweeney AND john) is mentioned in nearly 250 articles.

Despite this criticism, I want to emphasize that the TU was by far the least biased of all major media in my 2004 race (with the possible exception of the Metroland, and I guess also the Yomiuri Shimbun). I say this both to credit the TU for its effort to be fair and to note that the media bias is actually worse than what I’ve described above in most media outlets.

The Democratic primary

I was honored to be invited by Tom Raleigh to his campaign announcement. This was today at the Italian Community Center (next door to my office), so I had to go.

He did a very good job of getting media to show up. Channels 6 and 13 were there, along with reporters from the Gazette and the Informed Constituent. There might have been one or two others.

I don’t think he’s got a snowball’s chance in Haiti, but I’m rooting for him in the primary. It’s an insider-outsider thing. The incumbent, along with Sweeney, Gillibrand, Pataki, etc. … they’re all political insiders. On the other hand, Raleigh, Sundwall and myself are outsiders. I’m the most inside of the three of us and I don’t feel like I’m on the inside.

Of course, if he wins the primary, I’ll have to stop rooting for him. :-)