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For Revelers Behind the Wheel, 'Only 2 Beers' Is an Unwise Line

By Paul Duggan
Washington Post Staff Writer
Saturday, December 31, 2005

Tonight's the night, the big celebration, ringing in the new. Ten! Nine! Eight! . . . champagne toasts and kisses. And in the wee hours, after the bars empty, most revelers will make it home fine.

For others, though, the party will end with the whoop of a siren and a sudden burst of blue light in the rearview mirror.

Good evening, sir. Do you know why I pulled you over tonight?

Of course you know: because you were driving 30 mph on the interstate, trying, with intermittent success, to stay between the lines.

No, officer . . .

You're squinting up from the driver's seat, blinded by the black-metal Maglite shining in your eyes.

All right, sir. Have you been drinking tonight?

At this point, you might as well put the handcuffs on yourself. You're busted. You just don't know it yet.

You think maybe you can talk your way out of this. And here's what your panicked brain comes up with, five words guaranteed to do you no good:

I only had two beers.

The "two beers" line has been uttered so often that it's a joke among police officers. In 20 years of patrolling highways, Virginia State Police Trooper L.L. Parker has heard that slurred lie more times than she can remember.

"I don't know of any officer out here who, if you tell them you only had two beers, they'll tell you, "Okay, then, have a nice night,' " Parker said, chuckling. "But drunks, for whatever reason, they say it all the time."

What you don't understand is, you've already been sized up: the erratic driving, the odor of booze wafting from your Hyundai. You say, "two beers," and the report will read, "The operator admitted consuming alcohol." It's further justification for what comes next.

Okay, sir, would you please step out of the vehicle for me?

* * *

Bartenders call tonight "amateur night," when the stay-at-homes come out to howl. Like Super Bowl Sunday, like the weekends of Memorial Day and Labor Day, it's a time to be wary on the roads, to look out for weaving Toyotas and pickups.

The police will be watching. It's time for beefed-up patrols and sobriety checkpoints -- double duty for the station's breath tester, that little white box with the mouthpiece, the Intoxilyzer 5000.

It's the busy season for Sudeep Bose, a biochemist by training who argues that the Intoxilyzer and machines like it aren't reliably accurate. Bose gave up a science career for law school and, in 1998, founded a Northern Virginia firm that defends those accused of drunken driving by challenging the veracity of blood alcohol readings.

"It's 85 percent of my caseload," said Bose, meaning that 40 to 50 of his clients are accused of driving under the influence of alcohol.

"We expect that between Halloween and January 31st, we will take in almost three times more DUI cases than the rest of the year," Bose said Wednesday. "After Christmas -- today, for instance -- we're getting calls on all the cases that came in over the weekend. And I expect another spike in the first week of January from all the New Year's parties."

The nonprofit Washington Regional Alcohol Program reported this month that police in the area made 14,092 drunken driving arrests in 2004, about the same as in 2003. But for the first time in several years, the number of drinking-related traffic crashes went down (from 5,474 to 4,840), as did injuries (3,602 to 2,878) and fatalities (122 to 110).

Bartenders in the area say patrons generally are showing more restraint these days, even on New Year's Eve.

"I've seen a full-on change in the last 15 years," said Rick Baldwin, bar manager at Rock Bottom Restaurant & Brewery in Bethesda. "Not drinking and driving is way out in the forefront of people's thinking. People do all kinds of things: buses, or they take cabs, or they have designated drivers. . . . Absolutely, they're more aware of the consequences."

Ah, the consequences.

Even a low blood alcohol content can lead to a drunken driving conviction if authorities prove in court that a motorist was impaired. And in Maryland, Virginia and the District, drivers with levels of .08 percent or higher are legally presumed to be impaired, regardless of how well they are able to handle their booze.

In the District, drunken driving is punishable by up to 90 days in jail and a $300 fine for a first offense. Virginia's penalty is up to a year behind bars and a $2,500 fine. In Maryland, driving with a blood alcohol level of .08 percent or higher carries up to a $1,000 fine and a year in jail, while the penalties are lower with a lower blood alcohol content.

Lawyer fees? They are likely to run in the low to mid-four figures. Add to that a jacked-up insurance premium or cancellation of coverage. Then there's the hassle of catching buses and bumming rides for months while your license is suspended.

"I will say this," Bose said. "It is not a pleasant experience."

* * *

I only had two beers.

Should have kept your mouth shut, defense lawyers say.

"I guess they think two is the magic number," said Trooper Parker, chuckling again. "If you had three, you must have a drinking problem or something. . . . But if you only had two, then you must not be all that drunk."

Think of this traffic stop as a mini-investigation. Weaving at 30 mph gave the officer a legally sufficient reason to suspect you're intoxicated. "Probable cause," it's called. That smell in your Hyundai is more probable cause -- and so is your lame "two beers" line.

Would you please step over here, sir? Now I'm going to ask you to please . . .

Walk nine steps, heel to toe, then turn and walk back. . . . You stumble. Stand on one leg and count to 30. . . . You stumble again. Follow this pen from side to side with your eyes, but hold your head still. . . . You can't.

So much probable cause now.

What the officer doesn't tell you is that you're not required to take these sobriety tests. Legally, he can't order you to take them without explaining that you have the right to refuse -- a constitutional right against self-incrimination.

But, of course, he didn't order you to do anything.

He was merely asking. And you went along with it.

Now he's ordering:

Turn around and place your hands behind your head.

With all this probable cause, you can't legally refuse to take a breath test at the station. If you do, it's a separate, civil offense with its own sanctions. And the refusal can be used against you at a drunken driving trial as evidence of your "consciousness of guilt."

"Two beers," said Elizabeth Wingo, a supervisor in the D.C. attorney general's office. "Everyone says that. Then they come in and blow a point-one-four."

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