Abby Wambach's arrest for a crime that makes no sense

Story highlights

  • Danny Cevallos says if we really want to eliminate drinking and driving, it would be easy, but government only pretends to abhor the crime
  • In cases where Uber or the equivalent is an option, it seems ideal as a way to avoid committing the crime, he says

Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his

(CNN)Retired USA soccer star Abby Wambach was arrested early Sunday on a driving under the influence of intoxicants charge in Portland, Oregon.

In a Facebook post, Wambach frankly addressed the arrest: "Last night I was arrested for DUII in Portland after dinner at a friend's house.
    "Those that know me, know that I have always demanded excellence from myself. I have let myself and others down.
    "I take full responsibility for my actions. This is all on me. I promise that I will do whatever it takes to ensure that my horrible mistake is never repeated. ..."
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    Police have indicated that Wambach was cooperative and polite. That's not surprising; after all, this is a case of driving while intoxicated.
    Whether it's Oregon or any other state, "drunk-driving" courtrooms are always different from other rooms in the courthouse. The judge, jury and lawyers are the same as in the homicide or robbery cases. The difference is the defendants.
    The defendants waiting for their cases in the DUI courtroom come from all walks of life. Don't believe me? Your grandmother probably never stole a car or mugged a college student. But your grandmother might have gotten a DUI she never told you about. DUI defendants can be CEOs, teachers, nurses, and yes, even other lawyers.
    Why? Why do people who otherwise would never commit a crime somehow get arrested for drunken driving? Sure, it's a question of personal responsibility, but why is it so much easier for upstanding citizens to refrain from all other crimes, except DUI?
    It's the mixed signals. Most other criminal activity unambiguously violates our social norms. There's no "gray area" when it comes to smoking meth at a cocktail party, for example. Most crimes are also social faux pas, such that you would neither engage in, nor tolerate the behavior from a peer.
    With DUIs, however, there are mixed messages. Most people are surprised to learn that it's not actually illegal to drink and drive. Technically, it's only illegal to drive while "impaired" by alcohol. What does "impaired" mean? Well, in most states, it means one of two things: 1) some scientific piece of equipment purports to identify, separate and measure the ethanol in your blood, e.g., by using a method called gas chromatography; or, 2) an officer, who has never met you before, just concludes that you are intoxicated by looking at you. Really. I'm not kidding. That's often what the law is.
    Either way, the lesson to be drawn from our laws is not "don't ever drink and drive." Instead it's "you can drink and drive until you are 'impaired,' which is an arbitrary concept measured by 1) a sophisticated piece of machinery and a scientific method totally unavailable to the average driver; OR 2) just the opinion of some officer with zero medical or scientific training whatsoever."
    Let's face it, our government, along with the nightlife and alcohol industry, only pretends to abhor drinking and driving. If our federal or state governments really wanted to end drinking and driving they would simply make it a zero tolerance crime. There would be no ".08" blood alcohol content wiggle-room.
    There's no permissible level of intoxication when it comes to driving on LSD, or crack. And every beer commercial during the Super Bowl encourages us to drink, but to "drink responsibly." What does that even mean?
    Alcohol companies can't tell us to drink responsibly and also sell beer in kegs at the same time. Sure, there are responsible uses for a keg, just not many. And any bar in America that serves shots, and also has a parking lot, is just pretending people don't drive drunk. Ultimately, drunken driving is only "sort of" illegal in this country.
    That's why DUIs are not automatically the end of a career the way other crimes are. They do adversely affect some jobs, like commercial truck drivers, or nurses. Fortunately for Wambach, she cannot lose her "emeritus soccer star" license the way she might lose her driver's license (for 90 days to a year in Oregon).
    Historically, a DUI conviction itself brought only nominal, feigned social censure. In the past, "What were they thinking?" really meant "That could have been me." Now, however, things are different. Now, the proper question is: "What were they thinking? Have they heard of Uber?"
    It's crazy when you think about it. Law enforcement, state legislatures, and the private sector's efforts to combat drunk driving— both sincere and obligatory — may ultimately be dwarfed by an iPhone app and some good old fashioned capitalism.
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    The market has spoken: Drinking and driving is dumb not because it's illegal, and not because of any cultural morality. Drinking and driving is now dumb because it's just more convenient to climb into a comfortably appointed UberX after the bar, and pass out safely in the back seat, for just seven bucks. Of course, not every place has Uber yet. But given how it has gone from an unknown to most people to a life necessity within a couple of years suggests that before long, Uber will be ubiquitous. Just like bars and liquor. Then, we can ask in good conscience: What indeed is someone in Wambach's position thinking?