Eugene Ellis is a forty-nme-year-old San Diego lawyer specializing in defending drunk drivers. He recently agreed to speak with reporter Neal Matthews about the changing nature of drunk-driving enforcement
Matthews: In the city of San Diego, it looks as though there will be about a fourteen percent increase in drunk-driving arrests this year, compared to last year. But the population will increase only about three percent. We're either a bunch of drunks, or the cops are being more aggressive in enforcing drunk-driving laws.
My question is, have you seen the demographics of the typical drunk driver change over the last few years?
Ellis: Yes. but only in the sense that more and more people being brought into the loop are middle-class people, ordinary people. That's the key. They're not criminals. Technically. I have a criminal practice, but my clients are not criminals. There are professors, medical doctors, lawyers and their dependents, waitresses, young navy guys, salesmen.
It cuts all across, but none of them are criminals. When I first started drunk driving. I expected to see some horrible people coming in, but in came these professors and doctors. Because you see. they're not being stopped for drunk driving. The judge will tell the jury that. They're being stopped for being under the influence, and it's totally different. Put this in caps: You can be arrested for drunk driving on a prescription drug. The law reads, driving under the influence of alcohol or drugs,
First of all. you should understand that there's a presumption in the law that at a blood alcohol level of .10 or greater you're under the influence. There's no presumption from .06 to .10. From .05 to below, there's a presumption that you're not under the influence. So what the judge is doing is pointing out to the jury, the very first thing, he's saying. "Ladies and gentlemen, this lady right here is not being accused of being a drunk driver. She is being accused of driving under the influence." And there is a big difference.
It's two or three glasses of wine, taken in the wrong sequence with no food, and you can be in the slammer. What's happened is that the legislature is frustrated, so they widened the loop [of potential criminals by broadening the definition of drunk driving],
Matthews: Isn't that attitude abetted by the lynch-mob atmosphere these days? MADD and SADD and all these groups that want to hang drunk drivers who've killed their husbands and their daughters?
Ellis: That's right, but that's why an individual person who's connected to the subject personally is probably the poorest choice to be making decisions for the best of everybody. Look, if my daughter or a member of my close family were killed by a drunk driver. I'd probably be out there wanting to hang him and personally do something to him and go check on the judge to make sure the guy got everything that was coming to him...
Matthews: Shouldn't judges respond to that?
Ellis: They have to respond to that, but they also have to and do take into consideration the larger picture. And the larger picture is that although the carnage on the road has to be stopped, getting a bigger hammer every year isn't necessarily the way to stop it. Looping more and more people into the loop isn't the way to stop it. The legislature has a knee-jerk reaction, basically. So [in 1982] they brought down the blood alcohol level from .15 to .10. and now they're talking about going down to .08. In fact the feds are putting pressure on the state to get it down to .08.
So what's happening is this: you're increasing the loop to cure a problem, it doesn't work, more people are killed on the road, the constituency is getting madder and madder, so the legislature keeps lowering the level at which you can be convicted of drunk driving. And that has a very interesting side effect. The loop gets bigger, and when you're down to .08 — see. there are prosecutors that will tell the jury that the AMA (they love to use that AMA) says everybody's under the influence of alcohol with a .08 or better. The point is. you can get up to .10 with three glasses of wine, under the right circumstances. You can get to .08 with two glasses of wine, with the right drinking pattern, no food, and then tested as soon as the absorption is complete. Two glasses of wine, theoretically, will get you high enough to where the city attorney's office will not want to drop the case.
Matthews: How drunk is .10? Hasn't everybody, including cops, who party as hard as anybody, driven while they were legally drunk?
Ellis: The law is that you can't have .10 or greater of alcohol in your bloodstream and drive. And police officers are human, legislators are human, district attorneys are human, judges are human, and in every group there are people who have had .10 or greater in their system when they were driving. Under the right circumstances, you can get to .10 with three beers. The point is, that's not a question any longer. The .10. by judicial fiat, says you're guilty. But the question the [defense] attorney raises is. What level were you when you were driving? Because you were .10 or .11 or .12 when you were tested, but what were you when you were driving, thirty minutes or an hour before they tested you?
Alcohol burns off at a steady rate. You were either higher when you were driving, or you were lower because you hadn't absorbed it yet. See. the alcohol goes in your mouth, goes into your stomach. The stomach walls are thick; very little alcohol is absorbed through the stomach walls. It has to wait for the pylorus valve to open, before it gets into the small intestine. That's when it gets absorbed very fast into the bloodstream. The pylorus valve will open relatively quickly if there's nothing in your stomach, or it will open very slowly if you've got a meal in your stomach. So consequently in order to determine what was in your brain and your blood when you were driving, you've got to know much more than what the person drank. What they drank, when they drank it, what they ate with it. and what times. These are absolutely essential to know whether the alcohol was in here [stomach] where it's legal or in here [brain] where it's not legal.
Matthews: So if you're under the influence at .10 but you're not drunk, does it necessarily follow that you could kill somebody? Are your driving skills impaired?
Ellis: Well, science tells us that some people are impaired for driving purposes at .10. some people are impaired at .06. and some people are not impaired at .15. These are what the different studies have told us. Now. you can get into a real technical quagmire here: the definition of impaired, and so forth. But most of the experts will say that at .15, everybody is impaired. But two glasses of wine, at .08? Impairment is unlikely. My personal opinion is that at .10, the majority of people are not impaired.
Matthews: But don't people have to exhibit some funny driving in order to be pulled over?
Ellis: No. Bad driving is not a requirement for finding you guilty of driving under the influence. And judges will tell the jury that. "Bad driving is not a requirement for finding you guilty... "
Matthews: Then why does the cop pull you over?
Ellis: Because after 11:30, 12:00 at night, the police know that the majority of people have had something to drink. That's a given. The statistics show that after midnight it gets geometrically higher until something like eighty percent of everybody on the road have had something to drink. The police also know that they cannot stop you without a reason, so after 12:00 all of a sudden you'll find a tremendous number of people being stopped for expired stickers, a little tiny crack in the tail light, umm, went through a red light when the person swears it was yellow, speeding five miles over the speed limit. They're using it as the probable cause to stop the person and to get close enough to smell their breath.
Matthews: Is that usually the first tip-off?
Ellis: Yes. and they'll use the eyes and they'll ask the guy. See. a lot of them will Just come up and ask the person, "Have you had anything to drink7" The average person's honest, and he says. "I've had a couple." If he says that, guess what? He's going downtown. If you admit that, you're going to do a field sobriety test, but the field sobriety test in my opinion. based upon the number of cases I've seen, is not designed to give you a test and release you. It's designed for one purpose only: to give the police evidence in court. So nobody should take a field sobriety test, because it's not required in the state of California.
Matthews: Well, should people lie and say they haven't had anything to drink?
Ellis: No. and this is important. If the person has had something to drink and they want to protect themselves, they should say that I'm exercising my Fifth Amendment right not to make any statements other than that which is on my driver's license, or basic biographical information. That's all the information the police are entitled to. But you have to be extremely careful. Number one. never, ever be fresh. Always say yes sir. no sir. or you can get beat up. Never ever tell them what you drank; never ever tell them what you ate: and never ever tell them when. As soon as you say "I'm exercising my Fifth Amendment right not to speak except as to the basic information," they are not supposed to ask you any other questions.
Matthews: Doesn't that piss 'em off and make 'em want to get you even more?
Ellis: You are going downtown for the chemical test anyway, in almost every case. Look, there's three ways they convict you for drunk driving in California. Number one is bad driving, number two is the field sobriety test. The law doesn't require that you do one or that you tell them what you had to eat or drink. So why do it. because you're convicting yourself.
Matthews: You mean you can refuse the field sobriety test?
Ellis: Yesl And you should refuse it. Because when you reach that point, in the vast majority of cases you're going downtown anyway All you're doing is providing evidence against yourself. And the third way they can convict you is the chemical test, which you are required to take. If you refuse that, the DMV revokes your driver's license.
Matthews: Can't you ace the field sobriety test if you've only had a couple of beers?
Ellis: No. The field sobriety test is composed of a series of trick tests. And this might shock you. but it's not just me that says that —
Matthews: Trick tests? What do you mean?
Ellis: The tests can only be done with practice. Saying the alphabet backwards, or the heel-to-toe test, the popular one. Now they'll have a woman, and they'll tell her to take off her shoes, her high heels Now she's in bare feet. But in order to make that test work you've got to click, click your heel into your toe. Otherwise you lose your balance, and they'll comment on it. They'll tell you at first to put your heel to your toe, but the person's excited, she's tired, she's scared, but if you leave some inches between your heel and toe. which is natural because you're barefooted, they’ll write it down. "She has three inches between each foot." It's a trick test.
Now how about the finger-to-nose test? The trick is, the arm has to be rigid and only bend at the elbow. otherwise you'll miss your nose. If you bend at the shoulder, you can miss your nose. It's a trick because the person very often doesn't hear or isn't told that they have to keep their arm out straight and bend at the elbow. The person is under a tremendous amount of stress at the time. So by allowing them to bring their whole arm around like this, it encourages them to miss, so then the officer writes down, "He missed his nose" which is evidence he was under the influence of alcohol.
The other test is. you walk a line, and you keep your hands at your sides. But every professional dancer will tell you that if you keep your hands at your sides, you can lose balance very easily. There's only two people who can do a field sobriety test very well. It's not an acrobat or an athlete as you might imagine: even they have to have some practice. It's drunks who practice in the bar. and it's cops.
The cops will get right in front of a jury, and they'll do that click heel-to-toe so perfectly. So I told one jury. I said, "You try it. You try it in the back room and see." And the judge became angry at me and said that's not a fair instruction, don't try it. He wouldn't let them try it. I looked it up. and he was right. But the point is, I understand one of the jurors tried it and she almost fell over, and we won the case.
Look, the intent of the test is honest enough. It's designed so that, taking all of the tests together, the officer can get a feel for whether or not the person is under the influence. But in actuality, the tests are such trick tests that the officer can not. in my opinion, really tell whether a person is under the influence unless they're staggering or seriously inebriated.
I'm not talking about that kind of a person; I'm talking about the person who's had two glasses or three glasses of wine, the little schoolteacher. Three glasses of wine, and she's stopped down on Broadway. Scared to death. All the drunks staring at her hooting and howling at her. the cars going by. and she has to do this line walking, taking her shoes off, walking on pebbles. This is not a fair test.
To some degree, it's a rough and ready system. There's two kinds of people in our society. There's the ordinary people that work all day. and they sweat and they're tired and they come home and shower and put on a meal and watch the TV and take care of the kids and go to sleep. And then there's another relatively large group of people that live by fang and claw. They come out at night. And anybody that tells me they don't exist, tell 'em to come to me and I'll drive 'em around at 11:30 at night, and they'll be so damn scared to get out of my car they won't even move.
Matthews: These two groups come together in the jails now. because of the drunk-driving push.
Ellis: They come together in the jails, but the problem is. the police forces traditionally for years only had to deal with this fang-and-claw group. Now, if you're polite to this group, you might get smacked in the chops. These types live in and understand only one thing: brute physical force. They traditionally have been going to jail, the police have had to deal primarily with these people, so the police have developed an attitude towards dealing with criminals that is, Do what I say, or sometimes a head gets cracked on the hood of a car. That hasn't changed for years: it's been that way since the first big Irish cop was picked for his size, just so he could intimidate the criminals.
But what has changed is. the criminal justice system's loop is now bringing in schoolteachers, doctor's wives, professors who come into my office and say they have been slammed against the wall, their eyes blackened One of the most common complaints is. the person will say to the officers, being an American middle-class person. I want to know my rights. And they'll be told. "You have no rights. You have no rights!" Now. they've told me this enough times that I believe it. That the police officers and the jail personnel routinely say. "You have no rights"
See. the officers are used to dealing with this criminal element, this hard-headed element that only understands when you raise a fist in their face and then will only move back a couple of inches. And the police are now dealing with more and more genteel people, ordinary people, who believe. "I'm paying for them; my taxes pay their salaries; they're my servants, there to protea me" Then they get thrown into this cauldron because of being under the influence — not drunk — and what do they get? A matron that walks up and grabs a young waitress who asks about her rights, slams her against a wall so her eye gets totally black, they pull her down and tear her clothes off and throw her down on a mat. I tried to convince her to sue. but so few of these middle-class people will sue because they're so humiliated.
Matthews: So this is where the jail scandal comes from?
Ellis: This is where the basic jail scandals are coming from, in my perception. It's not that the people who work in the jails are getting worse; they've always had to act like this in order to deal with this fang-and-claw element.
Matthews: So you're suggesting that people suspected of drunk driving should not take a field sobriety test, should not give the police any information about what they ate and drank, and should generally cooperate very little in their own drunk-driving arrest. But aren't you really working against justice, keeping dangerous drivers on the road by giving such advice?
Ellis: Don't make the mistake of refusing to take any test, because you have to take a chemical test or else you lose your license. But people need to understand that they're not required to take the field sobriety test, and they cannot pass it. Why cooperate in your own demise?
No. I'm not working against justice. This is primarily to help the people that have had two glasses of wine, three glasses of wine, things like this. The police officer is happy to bring these people in. because he gets a credit, in a way. but these people aren't drunk. Yet they have to hire a lawyer, and pay a bunch of money, and perhaps get assaulted in jail. The jail abuse happens more frequently than you know.
Look, every drunk who comes into my place gets treatment. I don't care if I do get him off on one of these technicalities, he's getting treatment because I don't want to run into him on the wrong side of the street myself and get killed. So I don't have any feelings of guilt whatsoever, because if I break the case on a technical basis, he's in there getting the kind of treatment the jail will never give him.
You wouldn't have to lower it to .06 or .08 if you got a handle on the problem drunk drivers and stopped the killing. The problem is the killing, the serious drunks. The schoolteacher with two glasses of wine, getting her and harassing her is not the answer to the problem. The killers are driving with .20, and .28. and .39. and they're human beings too. but if you strip them of everything, put them in jail, they're going to come out and kill. Sooner or later they're going to run into you and kill you. So you've got to solve them, and then the pressure on the legislature will ease. It all fits.
Look, probably one of the reasons a person drinks to start with is he has a low self-esteem. Well, jail strips you of whatever self-esteem you may have had left. It takes your family away, strips you of your friends, it strips you of any back-up you had from society, and the only friend you've got when you get out of jail is in that bottle. And that's right where they go.
Matthews: You've seen this?
Ellis: Of course. I had one guy who was put in jail on a second-time offense for a year. This is unusual. Normally, the sentence is ten days. But his background was bad enough that the judge in the El Cajon court put him in jail for a year. He got out in nine months with good-time credits and immediately was in our office with a third one. He went straight to the bottle for his strength and support. We put him in programs, and for a year he hasn't had a drink and is still going strong. The point is, if you put them in jail and strip away everything from them, when they come out, you've created a killer on the roads. Because, see, the way it is now you can only put 'em in for a year at a time. So you destroy 'em just enough to make 'em dangerous. That person is going to be on the road again, maybe without a license, but he's still gonna drive because in San Diego County you can't get anywhere without driving. Everybody knows this. They take the license away from these people, knowing the likelihood they're going to drive again against the law is eighty percent and they're either going to get caught and put in jail again or they're going to hurt somebody...
Matthews: But you don't run a counseling outfit, you're an attorney. Is it your job to make sure these people get off the bottle?
Ellis: It works both ways. If you're a good attorney, you want to produce a product that you can show a judge that this person's not going to be a danger to the court and the society. The judge has to make that evaluation. He has a range of sentencing that he can give to your client and your job is to either break the case technically or do something for the gentleman in the meanwhile so the judge can look at this man and say. "This is not a danger to me as a judge, this is not a danger to society, and so I can give him a lesser sentence and not worry."
It's called packaging. The guy is in front of the judge for three minutes. Four minutes. The calendars for these drunk drivings! It's something like eighty percent of the cases down there in trial setting. One after the other after the other. Humungous amounts of cases. It's your job as an attorney to provide something for the judge so he can see that this person is doing something. Because on paper from the court record, he looks real bad. If you can show the judge that he's actually done things between getting arrested and going before the judge that he didn't have to do ... This is third- or fourth-timers, serious guys.... Not every case can be broken, I don't care how good you are... I’m a lawyer. I'm not a priest.
But we need more funds for programs like this...
Matthews: Orange County judges send first-time drunk drivers to morgues and trauma centers to view victims of drunk driving, and it seems to have some effect. Do San Diego judges practice any kind of innovative sentencing like that?
Ellis: San Diego judges have a set pattern. Normally on a first-time deuce, you'll get somewhere around a thousand dollars fine, a first-offender's drinking and driving school two nights a week for two weeks, or four Saturdays in a row from nine to twelve, you'll get summary probation for five years, you'll have a license restriction for ninety days or two days in jail. In the Cajon courts, they're very often not giving the choice and giving the two days in jail. Sometimes you can do it in an honor camp. But it's pretty much a set sentence wherever you go. Vista, Chula Vista, San Diego, or El Cajon. By the way. it's on your record for seven years as a prior, and it stays on your record for ten years for insurance company purposes.
Mind you. liability insurance normally increases to $1000 a year. And if you've got your car on lease or you're making car payments to a lending institution, you can figure on somewhere between $2000 and $4000 a year for comprehensive coverage after a deuce.
I know a lawyer who lost his Mazda because he couldn't afford the insurance. And it also affects everybody in the household, so you can't do the car switching deal anymore. Your family's rates will go up if you drive their cars. So just one deuce becomes a financial nightmare.
Matthews: So why don't I just save all this grief and lie to the cop. say. "No I haven't been drinking" if he asks7
Ellis: In reference to the trial that may ensue, you never want to lie to the officer, because it's going to come out. He can still take you down and test you. and then the jury's going to see that, and there's a jury instruction that says something to the effect. Once a liar always a liar. So lying really hurts you. And besides that, lawyers aren't in the business of advising people to lie.
We're officers of the court. But by exercising your Fifth Amendment right, they can't even tell the jury you refused to talk. If they do. it's a mistrial. See how beautiful it is? Why lie when you have a fantastic tool that's part of your guaranteed constitutional rights?
Matthews: Have juries been pretty sympathetic to the schoolteachers? Jurors drink, too.
Ellis: By and large, a jury, in my experience.... This is corny but true: If what you're saying has the ring of truth, and there are ten witnesses against you but only one for you. the jury will decide for you. The only thing is. jurors are so conservative in San Diego, they're retired people, with relatives on the police force, and they tend to believe a police officer will never lie. I used to feel a police officer would never lie. But then I realized that there are a certain number of officers with what I call the Ollie North Syndrome, they'll lie for a higher good. (And I was for Ollie North, mind you.) They want to defeat the tricky lawyer. And they want to bring this person to justice, so they will exaggerate. They will make inaccurate statements in court. But whether it's because they're lying, and I've had them almost smirk at me when they've said something I knew was a fabrication (you could almost feel them say. "Prove it"), or it's because the officer was just real busy and got confused, it's hard to say. At 6:00 a.m. he and two buddies are in Denny's conversing and filling out their police reports from their notes. They've had four and five different cases, and they get mixed up. My ribs are sore from getting elbowed in the side by my client who can't believe the cop is saying certain things on the witness stand that just didn't happen.
The officers are in court all the time. They're professional witnesses. The people, the jury look to the officer as their protector. ''They would not lie. because they're the law.” But I don't know how many times a client has told me he was in the back seat of a police car on the way to the station, and the officer stops at a red light, then says. "Ah hell. I am the law." and he zooms through it. I've heard that from clients numerous times, the same words, "l am the law.''
But to be fair all around. I've known a large number of officers who wouldn't lie when they were coaxed to lie. Who got right up and looked the prosecutor in the eye. and the prosecutor's saying, ''Didn't this happen?" And the officer says. "No. it didn't happen that way" The perplexed look on the prosecutor's face, and the judge's face, and the officer's stuck to his guns saying no. You gotta understand, the officers are sent down to work in a jungle. Now. with the drunk-driving laws, they're coming into civilized country and some problems crop up. and to be able to change like a chameleon from what's required to handle one group to what's required to handle another is superhuman. I've known a large number of officers, probably the majority, who remain gentlemen all the time.
Matthews: You mentioned the penalties for first-time offense. What about the second time?
Ellis: The second time, you get a thousand dollars fine, a choice of thirty or sixty days in the jug, or the SB-38 program, which is a year and a half long. They want you to do the program. Legally, if you do that, you can get as little as two days in jail, but in San Diego they usually give you ten days.
The SB-38 program is an arduous program, as difficult as a college course. If you don't take it, your license is suspended for a year. If you take it — and it costs between S750 and $1000 — then your license is conditionally suspended, you can drive to and from the program, to and from work, to and from school, but you can't drive for pleasure. Plus your insurance goes crazy.
Do you see this sea of misery that's been created? And nobody touches the liquor industry. Multimillion-dollar industry. And nobody touches the tavern owners. Multimillion-dollar industry. Isn't that where you should logically start? Does it make sense that you've got this gigantic hammer on one side, where you're smashing people's lives into smithereens, and on the other side you say, "It's free enterprise, come drink all you want'?
Matthews: WEll, they finally hit a gas station, did you see that? They busted a gas station for selling gas to someone who was obviously drunk, who went out and killed two people? i
Ellis: [Laughter] There's so much that needs to be done, so many misconceptions. Starting with a jury who believes an officer would never embellish the truth. And the legislature has to understand — and I have no great hope for this — that they can't keep lowering the level at which they haul people in. What could they do? They could pour more money into treatment programs that have an eighty-five percent non-recidivist rate and help that way. But let's say you want to get revenge on the individual, let's get even with him. okay. But if you still get him in the programs, you help so many other people, the people he didn't kill, and all the relatives. If you just helped one person, if you saw the army of people around that person that are affected: his mother and father, his wife, who leaves him when the going gets rough, the relatives of the victim that he's going to kill one day —
Matthews: But the legislature isn't going to change its spots overnight. They're in a revenge mode now.
Ellis: No, that's why I don't think change is going to come through legislative action. The only way I can conceive of something happening is if the pressure groups themselves, Mothers Against Drunk Drivers and so forth, get past their revenge and ask. What is there available to treat these people when you have an indication there's a problem drinker?
Let's separate the first-timers. He comes in contact with the system, gets hurt by it, leaves, and may never come back again. These aren't the dangerous ones. The ones doing the killing are the second- and third-timers. I can hear the retort: "Well, that little schoolteacher in this particular case killed a nice family that didn't have anything to drink." I'm not talking about that I'm talking about what normally happens. Being in court where two very high-priced experts are arguing whether two glasses of wine has inhibited some inner function of the human body so that you might under a hypothetical circumstance have run into a hypothetical person.
Matthews: How do you separate the first-timers? They're all thrown in together now, right? They all suffer.
Ellis: They all suffer equally, but if you want a place to start working, you can take the second-timers and the third-timers and start to increase the treatment programs and put the news out to the defense attorneys and the bench. Look, we don't have a diversion program for alcoholics in California.
Matthews: That's incredible to me. We've had diversion programs for drugs for a long time.
Ellis: Because the legislature believes that an alcoholic can't be rehabilitated, unless he himself voluntarily goes to get the treatment.
Matthews: A diversion program puts the charges in abeyance until the person goes through some sort of counseling?
Ellis: Right. But we don't have one in California, and the judges are not apt to create one. It's the legislature who would create one, but the judges are not willing to go out on a limb and allow for any really creative sentencing.
Matthews: That's because they think you can fix a drug problem but you can't fix an alcohol problem?
Ellis: Yes. Experts have told them basically that before a person can be rehabilitated for alcohol, he must go voluntarily to the source, he cannot go there because he's afraid of being sentenced. I'm telling you that's wrong, based upon the people that I have seen who've come out and never drink again. I've seen a number of them. I've even brought them to judges to show how it works. See. a judge sees only the failures. The ones that repeatedly don't make it, that repeatedly do injury to other people. And so do the legislatures. Dealing constantly with these recidivists, the legislature and the bench become hardened to the very thought of rehabilitation. There's a prevailing attitude among some members of the bench that you can’t cure a drunk until you've smashed him into the ground and remade him over. And that means a long jail term.
But good programs exist, and they can have a very beneficial effect on the drunk-driving problem. I can tell you one thin§ for sure, the jail won't. The jail won't. Oh, you'll beat him up a little, and maybe he'll lose his job and his family. You'll get revenge, but you won't get results.