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Anita Ramasastry

A D.A. Puts Drunk Drivers on Twitter: Why The Policy Probably Won't Deter Future Offenders


Tuesday, January 12, 2010

During the December 2009 holiday season, and especially on New Year's Eve, law enforcement personnel are understandably concerned about increased levels of drinking and driving after holiday parties and other festivities. This past holiday season, a District Attorney and a vehicular crimes prosecutor in Texas tried a new strategy to address the problem –announcing that they would post on Twitter the names of people who have been arrested for a DWI (driving-while-intoxicated) offense between Christmas and New Year's, as a way to deter drunk driving.

And indeed, a look at the Montgomery County District Attorney's Twitter page shows that arrestees' names are listed. Moreover, the Houston-area county will also publish DWI arrestees' names on Twitter during future holiday periods when drinking is expected, including the Fourth of July and Memorial Day weekend.

But will the page's existence deter future would-be drunk drivers? Unfortunately, at least for now, this name-and-shame effort is unlikely to be very effective, for reasons I will explain. Indeed, Twitter may prove, overall, to enable drunk driving more than it aids in fighting it – for Twitter is also being used by young partygoers as a way of evading police roadblocks designed to detect DWI offenders.

Why Tweeting the Names of Those Charged with DWI Is Likely Legal

To begin, what the D.A. is doing is likely legal. Criminal charges are a matter of public record. Accordingly, it is commonplace for local U.S. newspapers to name and shame those who are charged with DWIs or soliciting a prostitute.

Some defense attorneys and civil libertarians argue that such postings go too far – because those who are named have been charged, but not tried or convicted. And indeed, some of the arrestees' charges may be dropped; some may plead guilty to a lesser – and less embarrassing or stigmatizing – offense; and some may ultimately be acquitted at trial. Yet, defense attorneys contend, even for those who are ultimately acquitted, the reputational damage is already done, once the initial posting is made. A job seeker may find, in the future, that his or her DWI charge was found by a prospective employer on a Twitter page, despite his having had the arrest thrown out in court.

There have been challenges to similar programs. In Nassau County, New York, for example, 81 people who were arrested on suspicion of DWI during Memorial Day weekend 2008 had their names and their mug shots (arrest photos) published on a website by the County Executive. This web page was referred to as a DWI "Wall of Shame." A judge later found that the online publication of the photos and the names of the individuals violated their due process rights. The judge ruled, however, that the names and photos of persons convicted of DWI or who agreed to a plea bargain could be posted.

But in the end, these arguments relate to the issue of what, exactly, can be publicized -- arrest versus conviction. The ultimate issue remains: Will the publication of a DWI arrest, conviction or even a plea bargain really serve to prevent other drivers from making the same kind of mistake?

Will Tweeting DWI Arrests or Convictions Deter Others From Driving Drunk?

The attorney who conceived of the Montgomery County, Texas program has been quoted as saying, "There is definitely a deterrent effect in the potential public humiliation people may face when they get arrested for DWI."

And New Mexico has an online "DWI Offender History Search" that anyone may search, by name or Social Security Number (with the SSN search likely assisting employers and potential employers -- especially those hiring, say, drivers or security guards). The search retrieves DWI convictions, as well as pending cases.

The site notes that a search yields "all DWI cases that are available in the AOC Central Repository." The data retrieved include the individual's name, date of birth, driver's license number, his or her number of DWI cases and convictions, and for each case, the court, docket number, charge and disposition. It is also possible to click through to the case summary or court docket from many of the database records.

But will someone who is about to drive while intoxicated really stop to think that his or her name might be broadcast on Twitter or posted on a website, and decide not to? Probably not; after all, being intoxicated means that one's thinking is impaired. Moreover, a friend or family member who notices that a person is about to drive drunk is much more likely to intervene with a loved one's – and other drivers' and pedestrians' -- safety in mind, than with the loved one's reputation in mind.

Finally, to my knowledge, there has been no solid proof that newspapers' publication of drunk drivers' names, or states' maintenance of drunk driving databases, has had the desired effect of stopping drunk driving. (Databases may be valuable, though, to stop the hiring of past drunk drivers for jobs it is too dangerous for them to do.) And if these measures can't be proven effective, will Twitter be superior?

Overall, Will Twitter Stymie, or Enable, Drunk Driving?

Twitter and other forms of instant messaging may also prove detrimental to the fight against drunk driving. News reports from the recent holiday season indicate that police are finding that young people avoid their sobriety checkpoints by "tweeting" the checkpoints' locations to each other.

This has occurred, for instance, in Fresno, California -- where Sergeant Dave Gibeault, the head of the traffic unit, told a reporter that his daughter had texted him the location of checkpoints that had been publicized via Twitter.

In sum, D.A.s' tweeting may embarrass some people and harm their careers in the future, but it is unlikely to achieve the public-safety goal of keeping drunk drivers off the roads – and there is even a risk that tweeting may enable drunk driving, rather than contributing to its prevention.

Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns.

Ramasastry is currently on leave from the University to work for the federal government. The views expressed in this column aresolely those of Ramasastry in her personal capacity anddo not necessarily represent the views of any of her employers, past or present.

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