I thought this a joke when I first heard of it - but wasn't. In case you haven't heard, Tostitos produced a special bag for the Super Bowl. The bag is designed to detect alcohol, so the theory is you blow into it to see if you should drive. If alcohol is detected, the bag will light up, and the message "don't drink and drive" will be displayed.

This special bag was  produced with the assistance of both Mothers Against Drunk Driving (MADD), and Uber, which might give you some insight into the reasons for marketing it.

Maybe I'm missing something, but I fail to see the usefulness. The sensor in the bag doesn't measure your alcohol level; it only tells you whether you have alcohol in your system. Hopefully you already know that - if not you may have some other issues.

It's not illegal to drink and drive

While it's always good advice to not drink and drive, it's not against the law. It's only illegal to drive when you are intoxicated, and this bag doesn't tell you that. It only tells you if you've been drinking at some point in time. You might be perfectly fine to drive home, but this test isn't going to tell you that.

The hidden message

I see two motivations for this campaign, maybe three if you count Frito Lay which gets a ton a free publicity, and probably a few extra sales to people who simply want to try out the bag. And you have to eat all the chips first, so you might end up buying two bags.

All you have to do is to look at the sponsors to see where the motivation comes from. MADD is an organization dedicated to eliminating DWI injuries and deaths. I'll be the first to admit that's an admirable goal, and one I support. However, they do so by pushing the message that driving after drinking is against the law, which it's not. It is great adivce, and a good rule to follow. I seldom drink, but if I do I'm not going to get behind the wheel. I've seen far too many cases of people where weren't intoxicated, who got arrested anyway. If you have alcohol on your breath, you are already well on your way to the jail before the investigation even starts. So why run the risk?

The problem I have is with the success MADD has had in pushing the message to not drink and drive. Every time I try a DWI case, most of the jurors raise their hands when asked if they believe it's against the law to drink and drive. Many have a hard time believing me when I tell them that law only prohibits driving while intoxicated. The more entrenched the message becomes, the harder it is going to be to get jurors who can agree to follow the law.

Follow the money

The other motivation is pretty easy to identify. When I was a young lawyer, I was involved in a complicated mult-defendant drug case. An experienced federal prosecutor told me that his strategy was always to follow the money. Sure enough, that holds true for a lot of cases, and a lot of situations in life.

If the Tostistos bag lights up, you get a message offerering a discount on an Uber ride. It would be interesting to find out how many of those discounts were claimed. I'm sure Uber got a lot of business they wouldn't have otherwise received, they also got some new customers.

The benefits

I can't say there probably weren't benefits to this campaign. If there was just one accident avoided, that's a win.

If you are arrested for DWI, you have to be aware of, and address the attitudes that most people have about drinking and driving. Just because you were arrested doesn't mean you're guilty.

If you want more information on DWI law, request a free copy of our DWI survival guide.

Walter Reaves
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Criminal Defense Attorney Walter Reaves has been practicing law for over 35 years.
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