To Sleep, Perchance To Dream

There was once a time when drunk driving prosecutions were based on a driver being drunk.  That meant that a driver was sufficiently impaired by alcohol that he could not adequately drive safely, and the tell-tale was his driving.  Then things got “scientific.”  Blood alcohol became the test, first at .10%, and later at ,08% when the former didn’t yield enough criminals.

The argument, initially, was that the numbers meant nothing. Alcoholics typically functioned just fine at .10%, as their livers were used to being filled with booze. Larger men and smaller women had very different physical reactions to two and a half beers. Then there was the notice question, how anyone was supposed to know what their BAC was at any given moment.

But in time, the science overcame reason, and absolute numbers answered all prosecution questions.  The only real problem was that it wasn’t actual science, but a quantifiable substitute for proof of wrongdoing.  Aside from criminal defense lawyers and a few drunks, nobody complained all that much.  Mothers Against Drunk Driving owned the public relations campaign, and nobody argued for the conduct that killed children. It’s a tough argument to make.

Now, there is a new kid in town, the next frontier of a life of perfect safety on the road: drowsy driving.

Roadside signs around the country have long warned drivers not to doze off behind the wheel with gentle catchphrases like “You Snooze, You Lose” and “Drive Alert, Arrive Alive.”

Now the campaign against so-called drowsy driving is moving to the courtroom, with law enforcement officials increasingly pushing to hold sleepy drivers criminally accountable when they cause fatal crashes.

It’s not a new concept, that people drive while tired, sometimes dozing off behind the wheel.  It’s not surprising that a person with his eyes closed, his mind disengaged, his hands on a speeding projectile, stands a decent chance of killing people. One of the points often missed by those who vilify certain dangerous conduct is that it exists alongside perfectly lawful conduct that’s every bit as dangerous. 

Drunk drivers have been made pariahs in our society. Drowsy drivers are sad, lacking the moral culpability of the drunk.  The people they hit, however, are just as dead.  No survivor takes comfort in the fact that the driver was asleep instead of drunk. It’s not a happier cause of death.

Ridding the roads of drowsy drivers isn’t a bad thing under any stretch of the imagination. Most people have driven when sleepy, some because of going days without sleep in order to make deadlines, a la long haul truck drives. Others, because they get sleepy after lunch and just can’t manage to stay awake. Again, who cares why? The fact that you’re tired doesn’t mean I’m happy to have you kill my children.

But a warning campaign, public enlightenment, isn’t where this road trip ends.

The shift from polite chiding to prosecution follows successful efforts to criminalize other dangerous driving habits, like speeding, drinking alcohol and using cellphones. But drowsy driving, which the AAA Foundation for Traffic Safety calls “one of the most significant, unrecognized traffic safety problems,” faces tougher legal hurdles. A blood-alcohol test can show whether a driver was drunk. Skid marks may betray a speeder. And cellphone records will reveal whether someone was texting right before a crash. But drowsiness is a personal and often fleeting state of mind that leaves no permanent record.

The next step will be the one that distinguishes a reasonable effort to make our roads safer from the one that facilitates criminalization, conviction and imprisonment.  Notably, we went from a time when a drunk driver was stopped because his driving was erratic and dangerous. Now, we have roadblocks to test people and police have been given the authority in some states to do involuntary roadside blood draws, an idea that would have been totally outrageous a generation ago.

It was a mere baby step in moving from eliminating the person driving dangerously because he was drunk to the person who was driving fine but had .08% BAC according to a magical black box.  If you squinted a bit, it made perfect sense.

So what kind of proof will be developed to show that someone engaged in drowsy driving? Beats me. But then, someone far more dedicated to the cause of eradicating this blight will think long and hard, and come up with some pseudo-scientific method that will be sold to the courts and public in some massive PR campaign and become the standard by which a new criminal industry is born. 

The push toward the courts has been supported by traffic-safety advocates, researchers and lawyers who say that when it comes to, say, driving without seat belts or driving while texting, educational efforts alone are rarely enough to change human behavior.

“The threat of criminal prosecution can go a long way to heighten driver awareness,” concurred Daniel Brown, a lawyer who is on the board of the National Sleep Foundation, a scientific and educational group in Washington.

When it comes to the rhetoric of changing human behavior, criminalization has long been the method of choice, a blind acceptance of the religious belief that deterrence works.  After all, look how well it’s eradicated drunk driving, murder and insider trading. 

But with such august scientific groups as the National Sleep Foundation aboard, how long before these brilliant minds come up with a methodology that will serve to conclusively prove guilt?  And since it’s under the rubric of science, mere mortals like judges and juries couldn’t possibly dispute or reject it.  Stand back, we’re doing science here.

Sharp lawyers are already scarfing up domain names like New York Drowsy Driving Lawyer, and advocacy groups are busy calculating how many inadvertent head nods are needed for a felony.  It’s coming.

14 comments on “To Sleep, Perchance To Dream

  1. John David Galt

    The per-se standard (percentage test) is just one case of a much larger problem: the ever-increasing body of criminal laws that don’t require intent, just to enable cops and prosecutors to get convictions even if they’re too lazy to prove intent.

    There ought to be some way to get courts to put a stop to the practice in all its forms, especially as applied to serious crimes.

  2. Mannie

    My worry, here, is that they will develop some bogus “Field Drowsiness Tests” that can be administered along the side of the road. Like the Field Sobriety Tests, they will be completely subjective and almost impossible to pass.

    Maybe it’s time to start de-funding police departments, and get rid of most of the roadside tax collectors. Jesus may have loved Tax Collectors, but I think we all see why they were generally hated.

  3. Ron Miller

    Is this really an issue? Has someone been convicted of drowsy driving alone? Even if because the law of the land, the evidentiary challenges would be through the roof.

  4. SHG

    Is it an issue? Of course not. No reason to concern oneself until after the damage is done. And it’s not like anybody could come up something as ludicrous as a magic black box with a secret source code that would be accepted as evidence in courts across the country. What a total waste of time.

  5. John Fembup

    Speeding is neither uniformly nor adequately enforced anywhere I’ve seen – despite being unarguably quantifiable.

    So, what are the the odds that any imaginable measure of “drowsiness” can or will be enforced as well as speeding is enforced?

    I say, zero.

  6. David

    I assume that dark rings around the eyes or a yawn during a traffic stop or Drunk-driving spot check will be evidence enough. Then all an enterprising officer will need do is to fake a yawn and let nature guarantee his quota.

    The scary part is how drowsiness gradually creeps in and one rarely even realizes it until the second after one nods off & wakes with a start. Now, that is admittedly of no comfort to the dead if something happens and plenty of people try to struggle though it when they shouldn’t, but this is essentially criminalizing the subtleties of human biology. The transition from law-abiding citizen to criminal menace can happen with the person ever realizing it.

    Also, our society’s seemingly unslakeable thirst for punishment is pretty amazing. It seems like we’ve rejected “accidents” as a plausible explanation for tragedy in favor of criminal negligence. Any ideas about how we got here, Scott? Or am I reading the trends wrong?

  7. SHG

    I’ve been seeing that trend for quite a while as well. It’s outcome driven, every tragedy needs a villian so that people don’t feel their lives are threatened by the whims of nature, but rather the product of an evil wrongdoer.  Plus, it makes for good political fodder when a politician can propose a law that will rid us of the evil.

  8. SHG

    Deep, yet pointless. This one is hardly a stretch. But no reason for you to worry. There are people who prefer to hope for the best but prepare for the worst, and should the worst happen, they will protect you even if you find anticipation of the obvious too much trouble.

  9. Ron Miller

    The world is grateful for people like you. It is a tragedy we don’t have more with your vision. Thanks for getting out on the forefront of this critical issue.

  10. SHG

    That’s because I’m a great humanitarian and visionary, even if the personal injury bar doesn’t get any monetary benefit from the lack of a new, “scientifically” demonstrable cause of action.  But hey, you wouldn’t be the sort of fellow to put pecuniary self-interest first, right?  I’m sure you’re a great humanitarian and visionary too.

  11. Ron Miller

    Listen, I can spar with you all day. I have time, all I’m doing is chasing dollars apparently. But I feel guilty taking up your time with you doing God’s work and all.

    Do you guys even take fees anymore or did you decide that cheapens your endless pursuit of justice?

  12. SHG

    So you can’t bear the thought of not getting in the last word to salvage your dignity? Time for a reality check. Your issue at the outset is that you didn’t think this was a big deal. Fair enough, as time will tell, though it likely didn’t occur to you that nobody here has much of a reason to care about Ron Miller’s subjective opinion. Still, it’s yours and I had no problem giving you the space to state it.

    Obviously, I disagreed, since I wrote the post to the contrary, and, equally obviously, this is my blawg, so my opinion trumps yours here. You don’t have to like it, but as long as you’re in my house, standing on my soapbox, you don’t get to call the shots.

    But that wasn’t enough for you. Not only do you want to say your piece, but you want validation, a concession that your subjective opinion prevails. And so you persist. And persist. Pushing me to the point of having to give you a little smack for being disingenuous. Why is this issue so important to you that you come back, day after day, to fight for your dignity? Perhaps your perspective is colored by self-interest.

    Rather than deny it, you try your hand at snark. Hah! Like you criminal defense lawyers work for free! Dumb move. Our self-interest would involve more crimes, more people getting arrested and more people needing criminal defense lawyers, resulting in more criminal defense lawyers getting paid.  And yet, this point not only doesn’t serve our self-interest, but is completely contrary. So basically, you’ve now demonstrated to anyone who reads this that you can’t argue your way out of a paper bag. Happy now?

    On top of that, you’ve proven that you don’t get how this whole blawg thing works. This is my home, not yours. I have the keys to the front door, and you get to come in only because I let you. You want to shout from a soapbox? Get your own. This one is mine. You’re here on my dime and at my tolerance, but think you get to run the show? Nope. You lose.

    So now you’ve conclusively proven two critical points: You can’t argue worth a damn and you’re a moron. Does that make you angry?  Swell. Start a blog of your own and call me mean names. If you’re as brilliant as you think, and people give a damn about your opinion, it will be a huge success and you will overwhelm me with your genius and forcefulness. As for here, I’ve given you all the rope you needed, and you hung yourself.  You’re done here.

    Addendum: Done here, perhaps, but not by email. This received from Ron Miller:

    I actually have a blog. It has a higher Alexa ranking than yours. And I don’t have to sit around and post to it 40 hours a week to get to that point. But who cares about that? I don’t get self esteem in this life by having a blog. My gosh, get a real life.

    I never realized he was so important, and I was so pathetic. No, it’s not my job to explain Alexa to him, or why, even though it might take him 40 hours a week to do what I do, it’s not quite so time-consuming for me. You can’t make this stuff up, and anybody can get internet access and a keyboard.

  13. Steve

    I was wondering how long SHG was going to tolerate this crap. He gave yuo far more latitude than I would have expected. I would have bitch slapped you after your first reply. Scott must be getting old. Older.

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