The ACA Opportunity

By Arnold N. Fishman

The Affordable Care Act is constitutional, but not as an exercise of the Commerce Clause. It was saved by the Robert's pretzel twist maneuver. He found that the individual mandate is not a tax within the meaning of the Anti-Injunction Act, but it is a tax for the purpose of constitutional analysis. As the dissent describes it, "[t]hat carries verbal wizardry too far, deep into the forbidden land of the sophists." But I digress. Of the holdings of the Court, the one I find most significant to my practice area is that the Congress overstepped its authority to withhold federal dollars from states that don't comply with federal standards. As the plurality put it, the threatened loss of those funds "is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion."

Looking back I can remember when machines did not find people guilty of DRUNK DRIVING! The deal was closed by a DOCTOR who would conduct an examination, formulate an opinion as to whether the suspect was unfit to operate a motor vehicle due to intoxication. That testimony was subject to cross-examination, and that witness evaluated as to credibility. Now we have an offense, the critical element of which is determined in a method not subject to any such scrutiny. The importance of that missing challenge can only be understood and is exacerbated by the awareness that we are dealing with an offense that traps people, many of whom believe they are not violating the law. They are not drunk and they have no idea when their BAC reaches the prohibited level. The punishment of people who don't recognize they deserve punishment is an ethical issue. It is bad public policy and fated to breed resentment.

I recognize that this state owes its citizens its best efforts to provide streets that are safe. However, both the New Jersey and United States Constitutions require the due process right to a fundamentally fair trial. If the state has done all that it could, then, almost by definition, it has been fair. There are, however, some things that can be done to make the playing field a little more level.

The simplest recommendation is to redesign the "Standard Statement"* so as to contain a place for the date and time of the reading of it and a place for the soon-to-be-charged to sign it. That way the importance of the reading would be made clear to the officer, and it would have a much greater impact on the defendant. Of all the clients who tell me it was not read, some of them have to be right. Without a way of distinguishing the form actually read to a particular defendant the temptation to include a generic form into the discovery package is palpable. A requirement that all police cars and police stations be equipped with video recording equipment and those recordings preserved, as discoverable information would go a long way. As I tell my clients, "If there is a video and you look drunk on it, you need a better lawyer than me." The courts presently require certain confessions to be video recorded. Why not condition the admissibility of the results of the psychophysical tests and the administration of the breath test in a DWI prosecution on video recordation? Also, why is it that in order to insure the judicial independence of Supreme Court Justices and Superior Court Judges tenure is required, and for municipal court it is not? Are they made of sterner stuff? They should be vetted by County and State JPAC Committees and after one or two terms attain tenure.

Let's get back to the ACA. When the Federal Government was trying to reduce the prohibited breath alcohol concentration from 0.10% to 0.08%. New Jersey established a Commission to determine the question. The Attorney General testified that the Department of Justice opposed the change for fear that it would ensnare the social drinker. They did not want to prosecute those people. And strikingly there was no real evidence that the lower level would save lives. The commission decided to keep the existing level, and we stuck to our guns until the loss of federal highway dollars was imminent. To save those dollars we capitulated.

Since then I hear no crowing about the lives saved; I can tell you about some lives severely wounded and a lot of suffering. I have cases where my client tells me they were not in any way feeling drunk and perfectly able to operate the vehicle. They may have been involved in an accident clearly the fault of the other driver. They may have been stopped for some reason having nothing to do with any bad driving such as an equipment violation. Sometimes they are in parked cars. The conviction can result in the loss of one's job and perhaps his happy home. The charge alone imposes a financial burden that is always painful and sometimes unbearable. Let's get the per se level back to where a person has a better chance of realizing his condition and acting responsibly by refraining from driving. Let's see if the Federal Government can punish us for restoring fairness to these prosecutions.

*The Standard Statement is the required implied consent form that advises a suspect of his or her rights and responsibility to provide an acceptable breath sample. The failure to give an unequivocal positive response results in an equally or even more serious charge of Refusing to Submit to a Breath Test.

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( Barrister - September 2012)