Feigned Outrage
I’ve been accused of feigning outrage before, but I won’t do it here because I am not outraged. In fact, I am not even sure I can generate outrage, feigned or otherwise, about another’s feigned outrage.
Reading the ‘left side’ of the blogosphere, though, one finds the breathless ‘coverage’ of the Denny Rehberg accident to border on the silly. These people pluck ‘facts’ from news stories and rumors and extrapolate all sorts of perceived misdeeds on the part of our Congressman, all while we really know nothing about the fundamental fact in issue. And all while a young man lies in a hospital bed.
Let’s review the basics, here. First, there is no “legal limit” for intoxication. The .08 contained in the law merely allows a judge or jury to use an inference, fully rebuttable by competent evidence, that a DUI defendant’s ability to safely operate a motor vehicle is impaired. If someone’s blood alcohol is .081, the jury can infer that the the person couldn’t safely operate a vehicle. The jury could freely decide, though, based on other evidence such as testimony or videotape, that the person was driving just fine. In fact, I have seen it happen. (Likewise, I recently received a civil suit assignment where, after a two car accident, the officers refused a DUI ticket for someone who blew a .0679.)
Further, the level of inference was .10 up to a few years ago. Did we somehow change the level of blood alcohol concentration required to intoxicate someone? No, this was simply a policy determination made by the legislature (at the urging of MADD) to make it easier to convict people caught driving after drinking. There is no number, outside of a criminal case, at which we can point to a person and say “Aha! You were drunk!”
Which brings me to the 3 hour meme. This has been repeated so much by the left-wing blogosphere, that even the Montana press is biting into it. It goes something like this: Sure, Congressman Rehberg was a .05, but that was 3 hours after the accident. In order for him to have been a .05 so much after the fact, he must have a) drank a whole bunch or b) been waaay over the “legal limit” when he got in the boat or c) been really, really drunk when he got in the boat. The latest to fall victim to this assumption is Matt Singer.
Can’t do it.
First, there are a myriad of factors that come into play when trying to determine BAC. I don’t claim to be an expert on the subject, but I can tell you that I have deposed a few of them over the years and have learned enough to know that the simple tables often used don’t tell the whole story.
What is the person’s weight? Male or female? What did the person drink? When did the person drink? When did the person drink each particular drink? How much did the person drink? What is the person’s individual capacity for absorbtion and elimination of alochol? Did the person eat? When? What? Is the person tired? What test was utilized to determine BAC? All of these factors and more come into play in determining what a person’s BAC was at any given time.
Further, alcohol absorbtion is not immediate. For example, it can take up to 2 hours for the maximum absorbtion to occur. In other words, if you drink 5 drinks, your BAC may continue to climb for 2 hours after your last drink and then, assuming you stopped, start to fall off. Your BAC may plateau for up to 2 hours as your absorbtion and elimination rates coincide.
Do we even know the timelines here? I have not been able to find Congressman Rehberg’s BAC report online. Thus, we really do not know when his blood was drawn (as opposed to the time of the test) to know how long the time lag was. We do not know what time he drank. Without this basic information, it is virtually impossible to determine BAC levels at any time of importance. He said he drank a beer or two with dinner. How long before he stepped into the boat was his last beer?
According to Left in the West, the “math does not add up.” Malarky. Congressman Rehberg says he had a pint and part of a second with dinner. He said he drank Kettle House Cold Smoke Scotch Ale, which is 6.5% alcohol by volume.
Go here and look at this BAC calculator. (I chose this one because it allows you to include many variables. As noted above, it’s just an estimate.) If a 180 lb. man drank 1 and 3/4 pints of 6.5% alcohol beer over 5 hours, that puts his BAC at .06 using a low absorbtion rate. Congressman Rehberg was a .05 at some point, at some undetermined time after an accident.
Have I made my point yet? All of the whining and gnashing of teeth trying to pin some sort of wrongdoing on our Congressman are, at best, silly and, at worst, simply craven. A man had a couple beers with dinner, and got in a boat and was injured in a crash. What kind of people try to blame him for something?
Yet, the 3 hour meme is not the worst of it. We also have this laughable assertion from 4 & 20 Blackbirds:
This is bad judgment, and when it comes to getting into a motorized vehicle with 4 others – and using the thing to transport yourself across a lake that also has other innocent people transporting themselves in their own motorized and non-motorized boats – wouldn’t you want to think that your lone congressional representative in Congress had enough judgment to know that not only should he not be getting in that boat with someone who’s been drinking – but that the drunk driver shouldn’t be getting behind the wheel of any vehicle and filling that vehicle with passengers?
That poor judgment resulted in some pretty serious injuries to 4 of the 5 people involved. It’s a shame that our Representative Rehberg didn’t have the good old common sense to say “Hey – wait a minute here,” and stop what has turned out to be a pretty tragic thing for one family.
What tripe. Congressman Rehberg got in a boat with someone who has allegedly been drinking. We don’t know how much, or for how long. (See above) Now, we see the false assertion that “that poor judgment resulted in some pretty serious injuries to 4 of the 5 people involved.” No it didn’t. Whether or not Rehberg got in the boat had no causal relationship to the accident.
What the author is trying to say (well, not really, because this doesn’t sound nearly as incriminating) is that she alleges Congressman Rehberg had some duty to stop the whole trip. Based on what? We don’t know what Barkus’ BAC was.
Were there minors on board? If not, does Congressman Rehberg have some authority to dictate to an adult how that person will or will not return to their lodging?
This accident was caused because the boat’s driver hit the shore. Alcohol was probably involved. (Not every accident where people have been drinking occurred because they were drinking.)
Then, in this comment, the author tries to shoehorn Congressman Rehberg’s conduct into the boating statute, MCA 23-2-523. She suggests that it is a crime for someone to “knowingly permit” someone to operate a boat negligently, and then implies that Rehberg “knowingly permitted” Barkus to do so. To permit someone to do something clearly implies that the party has the power to withhold permission. If Barkus owned the boat, and he did, how do we hold Denny Rehberg culpable for “permitting” him to drive his own boat? We don’t.
Before you spend too much time trying to sort out the author’s gobbledygook assertions about what the statute means (here or here, for example), you might want to note that the author asserts on several occasions (here or here) that Title 23 of the Montana Code does not lend any guidance as to what “under the influence” means in MCA 23-2-523.
The near-attorney on the left might want to review MCA 23-2-535 which, ta da!, applies the driving under the influence presumptions from, you guessed it, MCA 61-8-401, the same statute that applies to driving.
So, let’s review, shall we? There is no “legal limit.” Based on the facts available to us, we do not know what Congressman Rehberg’s BAC was at the time he stepped in the boat and, for what we know, he might have been legally able to drive the boat, let alone ride as a passenger.
We do not know what Greg Barkus’ BAC was at the time of the crash, and we do not know if he did anything illegal or not. We do know that Congressman Rehberg did nothing wrong by climbing into a boat and getting his leg busted up.
We also know that there are certain bloggers on the left who are willing to disregard the limitations of their own knowledge (I am not calling them stupid, just lacking in factual support for their conclusions) and are willing to speculate, guess and accuse Congressman Rehberg of all kinds of horrible things, many of which have come right out of their a$$es.
To the extent any newspaper or other journalist decides to rely on the left-leaning blogs for his or her facts, I strongly suggest you look elsewhere lest you end up with egg on your face.
Heard any good Chappaquiddick jokes lately?
Gregg: After commentators like that defended the Clintons and Teddy Kennedy for so long (or remained silent) despite the Clintons’ and Teddy’s faults in personal behavior, you’d think no one would pay attention to them anyway. But given the fact that things are as they are, you were wise to explain that their criticism on this occasion is way overwraught.
Nice post, Gregg-
I’ve said from the beginning that Rehberg engaged in behavior that 90% of us have at some point (having a few drinks and then being a passenger), and that harping on him for that makes people look like fools. It’s obvious that Barkus deserves some blame here – whether he was drunk or not, it was not smart to be going 40mph when there was low visibility.
But going after Rehberg here is a dead end, morally and politically.
Steve, did you and I just agree on something?!!?
Why is Denny’s BAC at all relevant? Is there any statute preventing a passenger from being drunk?
Anyone who drinks responsibly uses a designated driver. While Barkus’ BAC is a legitimate area of concern, I do not understand how anyone could criticize Denny from riding (not driving) drunk.
I have no idea of Denny was drunk or not when he was riding. In any case, it just isn’t relevant.
Apparently it’s not a good idea to drive fast on a dark lake and be looking at your GPS in some possible attempt to derive your position on the lake. In any case, Denny’s reported blood alcohol of 0.05 would have passed him to drive, though he was only a passenger.
The only reason we know Rehberg’s BAC that he volunteered the information! He wasn’t under any obligation to reveal anything that happened – from descriptions of injuries to medical reports, but from the beginning he has been open about the events of the evening. That’s not a convincing case that he’s lying.
Impressively thorough and conclusive take-down. Perhaps Parson Barry’s righteous-indignation shtick is rubbing off on his drones
But we still don’t know who washed his bloody clothes! Not much new with this story just another example of ideology trumping good sense.
Steve T’s right on the money.
Now, I’m going to be sick.
Swede, when a liberal gets things “right” they are encouraged if they get a ribbon.
Steve T has been right on the money lately more than you may have noticed.
Barkus will take one for the team and wind up in a six-figure job, just like Shane Hedges.
Rehberg was faultless in this, but the imagery of him riding along in a very expensive boat as it smashes into a rocky shoreline with a drunk at the tiller pretty much sums up my opinion of the Republican party these days.
Thanks for pointing out the absurdity of “Drunkenness by the Numbers.” It’s just a giant con to inflate state revenues and pump up insurance company profits. It also gives the Mothers Against Drunk Driving an opportunity to work out their emotional problems in front of polite legislators and captive high school audiences.
Most 0.08 drivers never even damage any property much less kill anybody. According to several university studies, veteran police officers can’t tell if a driver is too drunk to drive until his BAC is in the range of 0.12 to 0.16.
DUI is just a giant con based on an arbitrary number. Slide the number down from 0.10 to 0.08 and you can instantly criminalize a whole new group of law-abiding people, turn them upside down, and shake the money out of their pockets.
Expensive Boat???
When was the last time you visited a major port city? That boat wasn’t large enough to be a tender.
JAYoung: Hum……. A very expensive boat? I was not aware only Republicans own boats. I feel a whole lot better knowing every boat (expensive) on any waterway only belong to Republicans. I guess all these years Ted Kennedy was a “closet” Republican considering he owned several really, really expensive boats. I really feel bad for all of those poor (but very, very, very wealthy) Democrats in Congress who despite being millionaires evidently cannot own a boat since only Republicans can own an expensive boat. I encourage you to take a very long look at who in Congress are the wealthiest. You might be shocked to learn the vast majority of Democrats in Congress will never have to worry about where their next meal comes from as they constitute the wealthiest members of Congress. And dare I say, some, perhaps many, of them own a expensive boat. I also have to assume your definition of an expensive boat is any boat that doe not require the use of oars. Silly, silly, silly……………….
Well done Gregg. Although I could go into even more depth on the errors of those on the Left, what’s the point. They have no principles nor scruples, save to savage a Republican at the earliest opportunity, all the while ignoring any Democrat failings.
Overall, I have come to the conclusion that their input is useless for anything of substance, and have pretty much given up on them.
If anything changes on that front, would someone please let me know?
I know the Electric City is one of the few cities that leans more right than Billings but really now, what does the left, right, R, or D, have to do with Senator Greg Barkus jumping into his boat drunk or even buzzed driving 40 mph+ into the shore injuring 4 others? This guy is a menace to our state, not just because of his actions, rather because of the example he is supposed to set for our youth as a “leader” in our state Senate.
And to those of you saying MADD is behind the DUI laws, get real! There are only 2 chapters in the whole state. One in Bozeman and one in Billings, thats some driving force. Our DUI laws are well known to be the weakest in the nation.
Drink all you want but don’t get behind the wheel of anything! C’mon, what if your relatives were camping on that shore and got whacked by the boat? would his actions be alright then?
“This guy is a menace to our state, not just because of his actions, rather because of the example he is supposed to set for our youth as a “leader” in our state Senate.”
Ask 50 Montana kids if they know who Barkus is and what he does. My guess is 5% might know. Personally, I’d be more concerned about his behavior if he wanted to talk to my kids while they were in school. Very concerned if he was going to back up that conversation with a NEA/AFT approved lesson plan.
How about this radical idea, wait for the police report before you look for a tree to hang the rope from.
Jon Gaustad, did you really just say that Great Falls leans right? It’s hard to take you too seriously after that.
Beacon read your story. Wonder if anyone from Lee or the Tribune will bother…
http://www.flatheadbeacon.com/articles/article/speculation_on_rehbergs_alcohol_level/12942/
Speaking of the Beacon they have the latest thanks to Dan Testa: http://www.flatheadbeacon.com/articles/article/barkus_recovering_from_crash_remembers_little_of_circumstances/12957/
Mr. Smith, I found your web site for the first time and have to say that I agree with much of what you wrote. I’m uncomfortable with people who try to find fault with Mr. Rehberg in this accident. It seems akin to scrutinizing the passengers on the Titanic before it sank and trying to blame them. I’m not a big Rehberg fan, but I believe he has been transparent in this tragedy and give him a lot of credit. To be honest, it has made me admire him. So don’t be hasty to imagine that a lot of us lefties are out to demonize Rehberg just because he put his trust in an unworthy man that night. Many of us have done that. But to be fair, just as hysterical as the people who care what his BAC was or look to find some fault with Rehberg are the righties who have been howling about “Kennedy, Chappaquiddick, Democrats, waaaah!” I really long for the post 9/11 days when this country was no divisive.
Very good analysis. Too much arm chair detective work going on here by politically motivated amateurs.
[...] I completely agree with Gregg over at Electric City Weblog regarding his post entitled, “Feigned Outrage” about the silliness that is being posted from the left side of the blogosphere about the boating [...]