Cases of aggravated vehicular homicide or aggravated vehicular assault in which a child passenger is killed or seriously injured would be treated as violent felonies, with penalties ranging from 3½ to 25 years in prison.

In addition to tightening penalties, the proposed legislation would treat those caught on a first drunken-driving offense with a child passenger as “serious offenders” and require that they be subject to a mandatory interlock provision for one year. The provision requires the installation of a device that makes the car inoperable unless the driver demonstrates, via a breathalyzer test, that he or she is not under the influence of alcohol. Right now, the installation of interlock devices is left to judges’ discretion.

It’s a well worn equation: Death of a child + drunk driving = new law.  It’s always good for a political play, showing how our elected officials are “doing something” about the latest problem on our radar.  And, as usual, few consider its illogic, necessity or unintended consequences.

There are sound arguments for using child passengers as an enhancement factor, foremost of which is that the drunk driver knows as he cranks the ignition that he’s got children in the car, whereas having a child in the car to be hit or crossing the road is an unknown variable.  To impose an additional duty of care because of this makes sense.  Further, children aren’t in a position to take the keys away from a drunk adult, or to call themselves a cab rather than drive away with a drunken adult.  And finally, children may not have the capacity to recognize that Mom or Dad or Uncle Joey is smashed, or sufficiently “happy” to make them a danger on the road.

But on the flip side, the death of an innocent victim is still death, tragic and undeserved.  The family of Guy Bastardi doesn’t take comfort in the fact that he was an adult when he died.  His children don’t feel better about it.  Nor does 15 year old Joseph Marino, mowed down on his bicycle yesterday by Caroline Goss, with her 6 year old in the Jeep Cherokee, as he clings to life.

There is a difference between the driver with .08 BAC and .19 BAC.  But there is little difference between the driver on the cellphone whose neglect kills someone.  There is a difference, of course, for texting while driving, which is far more dangerous than drunk driving.  Twenty-three times more dangerous.

The difference here is that the death of a child produces a visceral reaction of horror, which blinds us to reason, and that there are few supporters of drunk drivers, to speak out for a rational approach.  On the other hand, conduct perceived as less morally culpable but as or more dangerous, is a much harder target.  As the drunk driving laws become increasingly harsh, mandatory and convoluted by new laws crafted in knee-jerk reaction to specific incidents, while the law simultaneously ignores impending tragedy by more socially acceptable weapons, we end up with a satisfying yet irrational state of affairs.

The law already criminalized the endangerment of children, whether by driving drunk or any other way one can imagine.  It’s one the books, and been on the books, for a long time.  Adding an enhancement from another angle to replicate existing law changes nothing and exposes people to inconsistent, and therefore arbitrary, punishment. 

On the other hand, the wrong that drunk driving laws seek to prohibit isn’t altered by the tragic outcome, but the initial turn of the key in the ignition.  Whether one makes it home safely or kills a busload of children bears no connection to the causal conduct.  Culpability should be driven by mens rea rather than fortuitous outcomes. 

Similarly, if the busload of children are killed by the driver texting rather than drunk, are the children less dead? Will their parents be less heartbroken?  But texting doesn’t have the moral culpability that we impose on a drunk driver.

And then there is the issue of blood alcohol content as the measure of the crime.  Criminal laws are supposed to be crafted in such a way as to give ordinary citizens notice of the prohibited conduct, but no person can determine his BAC, a scientific measure.  Rather, it’s a standard designed to facilitate prosecution, providing police and prosecutors with a brightline measure of guilt rather than a citizen of a brightline measure of prohibited conduct. 

And as the push to stop drunk driving achieved greater momentum, the BAC limit dropped, now at .08.  The number is arbitrary, and fails to take into account a variety of critical factors that distinguish between the drunk driver and someone in full possession of their faculties.  Compare the female, 105 lb. occasional drinker at .07 with the male, 237 lb. hard drinker at .10, the former being a danger and the latter being as good as he is when sober. 

While we use the word “drunk”, a pejorative term designed to impugn the driver, the law encompasses the absolutely ordinary diner who has enjoyed a bottle of 1961 Château Lafitte Rothschild with dinner as well, and then drives home from a very fine restaurant.  The line between the drunk and the fine diner is too unclear to offer guidance between the gourmet wine enthusiast and whiskey swilling animal.  We don’t know until we read the headlines the next morning who is who.

I’m neither a fan nor apologist for the drunk driver.  I don’t care much for the cellphone talker and really can’t stand the texter.  It pains me when a child dies in a tragic accident, and when an adult dies too.  Yet I’m a huge fan of rational, comprehensive, well-conceived, properly designed laws that are narrowly tailored to address the conduct at issue and meld appropriately with existing law.

Every time a tragedy strikes these days, the law suffers along with the victims.  We’ve got to stop letting the headlines drive legislation rather than reason.  It’s not that the problems aren’t real, but that the legal solutions aren’t sound.