BEWARE: FEWER OUI ARRESTS BUT INCREASED RISK OF ARREST IF STOPPED

According to statistics available from the Secretary of State, Bureau of Motor Vehicles, statewide OUI arrests in Maine have declined markedly in recent years.  In 2000, there were a total of 9,878 reported arrests.  In 2011, there were 7,275.  This represents an overall decline of 26% over this period.   Most of the decline has occurred in the past 6 years.  Between 2000 and 2006, the number of reported OUI arrests remained relatively stable, as the number bounced between a high of 9,878 (in 2000) and a low of 9,411 (in 2005).   Since 2006, however, annual reported OUI arrests have declined each year, falling from 9,617 that year to a total of 7,275 in 2011, for an overall decline of 24% during this period.    This is a very significant decline in arrests.  Viewed from another angle, it would take a 32% increase above the total reported number of 2011 arrests to match the total arrests reported for 2006.   The BMV reports these statistics as far back as 1998.  That year, there were 10,690 reported OUI arrests.  It would take a 46.9% increase above the 2011 arrest total to get back to that 1998 number.   This sharp decline in reported OUI arrests must be an indication that fewer people have been driving under the influence in recent years, right?  Not everyone would agree.

There are some in the law enforcement community who argue that the decline in OUI arrests is caused by their having fewer dollars to spend on OUI enforcement.  In other words, the decline is not caused by fewer people driving drunk but by inadequate funding to allow police to catch more drunk drivers.  So, which is it?  Are police departments working themselves out of a honey pot of funding by assisting a cultural shift away from drunk driving, or is the apparent decline in the rate of this crime an illusion caused by the honey pot not being large enough?  If the latter, how can we ever know if law enforcement is accomplishing its mission by reducing drunk driving?  It would be interesting to know whether there has in fact been any significant decline in law enforcement funding that might account for a decline in arrests.  I don’t have access to the funding figures, but I strongly suspect that funding for OUI enforcement has remained robust throughout this period.   And there is another statistic that can be gleaned from the BMV’s data that indicates the decline in overall arrests is due not to the hampering of law enforcement but to an actual decline in the number of people driving under the influence.

BMV data on annual OUI arrests includes the number of those arrested whose alcohol level was below .08%.  Included within that rather large annual number are those who refused an alcohol test and those who were driving on either a provisional or conditional license.   Drivers under age 21 have provisional licenses and are not allowed to drive with any alcohol level, and drivers who have had their licenses restored from an OUI suspension operate under a condition that they not drive with any alcohol level for a prescribed period after reinstatement.  The BMV’s statistics separately report the number of those who failed or refused an alcohol test and the number of those under age 21 who took a test and produced a result below .08.  The only sub-category of the overall number of those reported as below .08 who are not included as a separate reported statistic in the BMV’s data are those operating on a conditional license.  But there are only a small number of people annually who are tested for a conditional license violation who produce a test result below .08.  Therefore, by extracting test refusals and provisional license holders who were tested below .08 from the total number of drivers reported as having been arrested who were below .08, we are left with a fairly representative number of the people who were arrested for OUI but who tested below .08.

It is interesting to take a look at this annual number of non-provisional license holders, who are arrested and take an alcohol test, whose test results are below .08.  In the year 2000, this sub-group accounted for 419 arrests within that year’s total of 9,878 arrests, for a total of 4.2% of overall arrests.   By 2010, this sub-group accounted for 1,496 arrests within that year’s total of 7,834 arrests, for a total of 19% of overall arrests.  In 2011, this same sub-group accounted for 1,293 arrests within that year’s total of 7,275 arrests, for a total of 17.7% of overall arrests.  What does this tell us?  I suspect it tells us that fewer people who were arrested for OUI in recent years were operating with an alcohol level of .08%, that police have become more inclined to arrest people on a lower quantum of proof, and that even with the bar lowered on the threshold for arrest the number of the arrested who were actually driving drunk continued its marked decline.

We reached a point in 2010 when nearly 1 out of 5 of those reported as arrested for OUI were tested below a .08, and in 2011, nearly 18% of the reported arrests fell into this category.  It looks like the police are getting a lot of false positives.   Now, I know that law enforcement would argue over the conclusions I draw from these numbers.  They would say that some of the numbers of reported OUI arrests were actually from Intoxilizer breath tests that were given as part of law enforcement training exercises.  The BMV’s numbers for  completed alcohol tests are taken in part from electronically recorded Intoxilizer test results, so when an Intoxilizer is used in a training exercise, that result ends up lumped-in with OUI arrest data, even though the breath sample was submitted by an officer who had not been drinking.  Granted, some such tests are mixed into the BMV’s data, but these artifacts hardly begin to explain the phenomenon.  The same was true of the data gathered by the BMV back in 2000, and yet we went from a total of 4.2% of overall reported arrests with test results below .08 that year (exclusive of refusals and provisional license holders tested below .08%) to a total of 19% in 2010.   Again, that’s a lot of false positives.  It indicates that police are much more willing to pull the trigger on an OUI arrest, yet still they are making far fewer arrests.

People are driving drunk less than they used to.  It’s a good thing.   We don’t need to increase funding for police so they can chase more phantoms.  That’s also a good thing.   For those who drink alcohol and then drive, although not under the influence, what should the numbers tell you?  The numbers say, if you are stopped by a police officer, you are more likely than ever to be plucked off the roadway in handcuffs and informed of your duty to submit to an alcohol test.   And for that reason, you want to be very sure you haven’t overdone it, because as much as it will pain you to be subjected to that indignity, it will be much worse if the arrest sticks because your test result is .08 or more.  Happy holidays!  Don’t let the drink make you stupid.

 

Ed Folsom, Biddeford, Saco, Portland, Maine Criminal Defense, OUI, DUI Attorney.  York County, Cumberland County.



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