Regular readers know that I have written quite a bit about the Ed Miller case and was also asked to write an Op-Ed piece in the Columbus Dispatch about cyclist/motorist tensions stemming from the case. Miller is the motorist who went out partying with his buddy, Columbus TV personality Gabe Spiegel, in July 2008. They drank and went to an all-night, BYOB strip club. Before leaving the club they did a self-assessment and, like many drunks, Miller decided he was “OK to drive” at 5:00 am or so… and off they went. A bit later, Miller came up on cyclist Steve Barbour, hit Steve from behind, and killed him.
His first criminal trial resulted in a hung jury. As the jury was being seated in his second trial, Miller elected to cut a deal. He plead guilty to a slightly less charge of causing a death while driving recklessly and to a DUI charge. This past week Miller was sentenced to three  years in prison on the felony and six months on the DUI.
As with every story about cycling that hits the papers, the comments are often more interesting than the story. In the case of Mr. Miller, his friends and apologists took up his cause. One said:
“… I know the defendant very well and I would like to respond by reminding you that this driver had the equivalent of about 3 drinks in his system. Yes, he was over the legal limit but this was hardly the same as someone who consumes a heavy amount of alcohol and drives. Have you never had a literally 2-3 drinks with friends after work or on the weekend and driven home thinking you were safe to yourself & others? If you can honestly say yes, I applaud you; however, if you are like the majority of people who drink alcohol from time to time, then you understand how this could happen to anyone…”
So what about that claim – that he had the “equivalent of about 3 drinks in his system?” Gabe Spiegel testified on Miller’s behalf in the first trial. He reportedly said Miller had consumed “…3 or 4 drinks over a 4-6 hour period…” and did not appear to him to be impaired… [Imagine that, one drunk says to the other drunk - "You don't look so bad... LET'S DRIVE!"]
Mr. Miller’s BAC was 0.109% when measured by police after the crash. Spiegel said “… on the morning of the crash, he had met Miller after work, at about 1 a.m., at Sloopy’s Pub in Hilliard. He said they each had two 20-ounce beers and a shot of alcohol before leaving about 2:30 a.m. and driving to Spiegel’s apartment….”
So, after downing 40 ounces of beer and a shot of liquor what did these two do? Why, they got into Miller’s car and drove to Spiegel’s apartment, of course. I guess they decided again they were OK TO DRIVE. We don’t know what they did at the apartment, but we can presume that they stopped in to pick up some liquor because their next stop was a BYOB strip club!
Spiegel said that ”… At about 3 or 3:15 a.m., Miller drove them to Vanity, a strip club on Bethel Road that had a bring-your-own-alcohol policy at the time. Spiegel said Miller sipped a vodka and tonic at the club, but he didn’t see him drink anything else before they left around 5:15a.m….”
So, drinking 40oz beer plus some liquor from 1am to 2:30 am, driving to the apartment to pick up some liquor then hanging out at a strip club for TWO HOURS “sipping a vodka tonic” – a club which has no records of alcohol sales, since it doesn’t sell alcohol.
Is that the “equivalent of about 3 drinks?” I don’t think so.
Forensic toxicology is the study of poisons, toxins, for legal purposes. Folks with a Ph.D. in Forensic Toxicology are often called into drug cases, DUI cases and cases involving alcohol, to give opinions on BAC levels and impairment.
Most such experts will testify that when you stop drinking your BAC continues to rise for about an hour. If you don’t drink any more, your BAC will peak around an hour after you stop and then began to slowly come down. [These are generalities, of course.]
The human body doesn’t like alcohol. It’s a toxin, a poison, which the body strives to eliminate. This ability of the body to eliminate alcohol has been studied extensively. For the “average” non-alcoholic a forensic toxicologist will generally testify that you can eliminate enough alcohol each hour to drop your BAC by 0.015%. So you if are at, say, the legal limit [0.08% BAC] at midnight, and have stopped drinking for an hour, by 1:00 am your BAC will be around 0.065%.
“Regular” drinkers, though, have taught their bodies how to eliminate alcohol much faster – as much as twice as fast. So an alcoholic who is at the legal limit of 0.08% BAC at midnight may be as low as 0.05% just an hour later.
We don’t know the sum total of Miller’s drinking on the night of this crash or when he started and stopped. Did he start at 1am or was he drinking before that? He allegedly had 40 oz of beer [3 1/3 12 oz cans] and a shot over 90 minutes initially, according to Spiegel, but what did they drink after? Sip on a single vodka? That doesn’t make sense.
We also don’t know if Miller was a regular drinker – was his body used to eliminating toxins so that it could do so quicker than the average guy?
If he stopped drinking at 2:30 am, drank nothing at the strip club and killed Steve Barbour at 6am, his blood alcohol would have peaked around 3:30am and then come down at a rate around 0.015% per hour until the crash at 6am. A person who peaks at 0.12%, for example, will take roughly EIGHT HOURS to come back to zero- to eliminate all the poison. That person will likely still be “impaired” for traffic law purposes two hours later as the .12% will have been reduced by 0.03% giving the person a BAC of around .09%. Such a person may well “feel” like he is fine to drive since he is less drunk than he was two hours earlier – but he is still “impaired.”
Miller, who allegedly continued to drink at the strip club for the two hours or so that he and Spiegel were there. Assuming that to be true, and that he stopped drinking when they left, Miller’s BAC would have continued to rise for an hour, peaking right around the time of the crash, before starting to descend.
Here’s a chart from a DUI lawyer’s webpage that helps understand drinking and BAC over time. Note that toxicologists view a shot of liquor, a 12 ounce beer and a 4 oz glass of wine as the same thing – basically taking in the same amount of alcohol. Note, also, that the weight of the drinker plays a significant role – a 200 pound man’s BAC is roughly HALF that of a 100 pound man when they drink the same amount over the same time. Note, finally, that this chart presumes an “average” drinker’s elimination rate – people who drink regularly will have to drink MORE to reach the same numbers since they get rid of the alcohol faster.
Miller’s apologists online would like folks to think that this is A-OK and that he should not be seen as a “bad guy” for drinking, driving and killing. Sorry… I can’t accept this. When you take in alcohol no one has a gun to your head. If you’re over the age of 9 years of age or so you are aware that alcohol can make you drunk. These BAC charts are everywhere. MADD has been on the “market” for more than 30 years now – telling everyone about the dangers of drinking and driving. The fact that people regularly drink and drive does not make it less stupid, less “bad” and less likely to cause death.
You know that the law considers you impaired at 0.08%. Why 0.08%? Because forensic toxicologists almost universally agree that virtually everyone is “impaired” at that point. Some are impaired with lower BAC’s but by the time you hit 0.08%, your brain is not functioning properly, your eyesight is impaired, your reflexes are impaired and your decision making is impaired.
Alcohol impairs every skill you need to drive a car safely. Add to that the fact that Miller LEFT at 1:30am to party and was driving home at 6:00 am and you have a man who HAS to be tired as well as drunk… so…no… no sympathy here for Ed Miller. He did the crime, now he’ll have to do the time.
The question of whether his “time” is appropriate for killing a man…well…. that’s a topic for another day…