No crime is good. That, by and large, is why it’s denominated a crime, with certain exceptions relating administrative convenience. Yet every once in a while, one emerges from the pack to become a “different” sort of crime, a crime of particular evil, a scourge of society. The Scourge du jour is drunk driving.
What is it about drunk driving that has caused so many to decide that it’s “different”? Is it that it’s committed by ordinary people, rather than the evil, malevolent caricature of a criminal? Is it that it’s so unpredictable, and affects those who have no reason to suspect that they will be its victims seconds later? Is it so pervasive, so ubiquitous, that it causes massively disproportionate harm? None of these things appear to be the case, while they all seem true.
It’s impossible to tell exactly what the significance of drunk driving is, mostly because the data is notoriously unreliable, having been deliberately skewed by advocacy groups like MADD, who will claim a drunk driving angle in every car accident and attribute the slightest fender bender to the gravest tragedy to demon liquor. The media and politicians certainly melodramatize every drunk driving crash, and a death in any way connected to intoxication is at least a 3 day story. It doesn’t matter if the person causing the crash was sober, and the victim barely inebriated. Drunk is drunk.
The New York Times editorial the other day lauded California for its initiative in the “war” against drunk driving:
An enlightened measure signed this month by California’s Republican governor, Arnold Schwarzenegger, will require those convicted of drunken driving — including first-time offenders — to install special devices that prevent cars from operating if the driver is drunk. The large pilot program, which covers the 14 million people living in Los Angeles, Sacramento and two other counties, adds important momentum to the national campaign by Mothers Against Drunk Driving to expand the use of the life-saving technology.
Mandating the ignition-interlock devices for all drunken-driving offenders is smart safety policy. Once installed, the vehicle will not start until the driver first blows into the device and registers an alcohol level below the legal limit. Offenders who commute to work by car can keep their jobs, but they cannot drink and drive.
Even local prosecutors, like Nassau County, New York’s District Attorney, Kathleen Rice, has used drunk driving as her election campaign foundation. Rejecting the laws determined to be appropriate by the state Legislature, she routinely charges Murder 2 when a death results from drunk driving, claiming the extant laws inadequate to stop the scourge, apparently unaware that the crime is committed when the drunk driver turns the key, not dictated by fortuitous outcome.
In the odd-bedfellows category, the “drunk driving is different” is similarly shared by no less a staunch defender of the innocent than Chief Justice John Roberts. As Gideon at A Public Defender explains:
Is it true that the “imminence of danger posed by drunk drivers” is worse than others? Worse than someone with a gun pointed at another person’s head? Worse than an armed robber or carjacker? It may be true that drunk driving is always dangerous, but it fails to address the question of whether anyone is, in fact, driving drunk. Yet Chief Justice Roberts, joined by his associate Scalia, is prepared to waive away the inherent absence of credibility in the anonymous tip, long known to be a worthless cause to interfere with an individual’s constitutional right to be left alone in the absence of verifying evidence, to permit law enforcement the authority to act immediately.In an odd little dissent from the denial of cert in Virginia v. Harris, Chief Justice Roberts essentially argues that anytime police receive an anonymous tip that someone is driving drunk and they find that person, they should be able to pull them over and conduct an investigatory stop.The imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases. In a case like J. L., the police can often observe the subject of a tip and step in before actual harm occurs; with drunk driving, such a wait-and-see approach may prove fatal. Drunk driving is always dangerous, as it is occurring. This Court has in fact recognized that the dangers posed by drunk drivers are unique, frequently upholding anti-drunk-driving policies that might be constitutionally problematic in other, less exigent circumstances.
Why? Because drunk driving is different.
Stopping the criminal before they do harm is a pipe dream of those who elevate security over freedom. In a perfect world, perhaps it would. No one, least of all me, wants to see harm befall anyone. But when a crime is elevated to scourge status, and takes on attributes of such massive consequence that all reason is overcome by hyperbolic visions of the demise of society.
It is a tragedy when an innocent person is struck down by a drunk driver. It is a tragedy when an innocent person is struck down by a bullet. It’s a tragedy when any person is harmed. The family of a crime victim takes no comfort in saying, “well, at least she wasn’t killed by a drunk driver.”
Some believe that there is a calculated campaign to manufacture fear of particular crimes to whip the public into a mindless frenzy, willing if not demanding that the government take away their rights to stop the scourge. This was largely accomplished during the war on drugs, and then the war on terror. Is it’s replay in the war on drunk driving nothing more than an example of a tried and true tactic, working its way through our criminal law until there’s an exception for everything?
Maybe drunk driving will be different. Different in the sense that we won’t be fooled again. Even if the New York Times and Chief Justice Roberts have already raised their glasses in a toast.
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CT’s DCF Commissioner was convicted of DUI……..no job suspension yet DCF will take chidren from parents guilty of such crimes. Disgusting how the ‘system’ protects their own
I work with jail booking data and I see large numbers of first offense, 2nd offense and 3rd & subsequent offense DUI charges. I see a similar pattern with repeated drug violation. The pattern for DUI and drug charges for prison inmates is similar except the charge is the same and what changes is the number of prior incarceration up to nine for drugs and about seven for DUI.
When the repeat DUI offenders in prison were interviewed it was found that half had never been treated for alcohol abuse. Treatment cannot work if it is never started.
The relapses are responsible for the frustration and retributive overkill applied to alcohol and drug abusers. We have thousands of years of experience and hundreds of years of research that show that relapses are a common feature of addictive behavior (smoking for example).
We approximately double the sentence for each repeated offense, two days, a week, two week, a month and so forth. Imagine what it would be like if we did that for smoking. How much retribution can we afford?
For many state and county court systems, DUI is a cash cow for the fees it generates, especially for first and second offrnders. Beacuase the bar (no pun intended) is set so low (.08) in most states, it is very easy top secure a conviction. In some areas, law enforcement just waits for the bars to empty out, nails 90% of the patrons, pads their stats and raises a lot of money for their office. Is money the prime reason for strict enforcement, especially borderline cases, I don’t know. I do know human nature a little bit.
I don’t agree that drunk driving is different in the way that Justice Roberts refers to, and he’s right at, if not well over the precipice of the slippery slope. Substitute gun crime for drunk driving, and you’ve got another area where the wait and see approach is fatal- you think someone has a gun, you follow him, and then you confirm he has a gun after he takes out the gun and in half a second shoots someone. So Justice Roberts is talking nonsense.
That said, I think there are several things about drunk driving that make it different and explain some of the hysteria/outrage over it. First, regardless of the actual theories that they get prosecuted under (e.g. intentional murder, depraved indifference, etc.) most people recognize that drunk drivers are not “bad guys” the way murderers, rapists, etc. are. They’re usually regular, decent people, who lose track of time while relaxing after work or watching a ball game. And that’s what makes it so frustrating- society accepts, or at least recognizes that there are bad people. Drunk drivers are generally not among them, but their mistakes can occasionally have the same result as that of a real bad guy. Because they’re not really bad, rightly or wrongly, people seem to think that this is a problem that acutally could be fixed, with enough education/enforcement/shouting/hysteria/etc., whereas other crimes will exist no matter what.
Second, I think people see the victims of a drunk driving accident as innocent in a way that few other victims are. Nobody deserves to be a victim of gun violence, domestic violence, robbery, etc. But I think people harbor an inner sense, right or wrong, that people have a certain degree of control over their environment. Beaten by your husband, well, you shouldn’t have married such a jerk. Victim of a random burglary in a crime-ridden neighborhood, well, you should work harder to move to a better neighborhood. Hit by a drunk while driving hom on the highway- I think most people are at a loss on that one.
Not to mention that “drunk” is not really drunk. .08% BAC is not drunk by any rational standard. And since the bar has been set so low, “drunk” drivers can now be favorably compared, and in fact are so compared, to people who drive while “texting” and drive while talking on the phone.
As you say, it’s the slippery slope. Right now the argument is that drunk driving is “different”. But once that debate is settled with yet more draconian rules we’ll have to move on to texters and cell phone talkers, following our own logic.
Perhaps the problem is that driving itself is so dangerous. You know, I’ve never seen this criterion examined, but I would guess that a very high percentage of fatal accidents occur on rural, high speed, two lane roads at night. Think how much safer we could be if we just prohibited such driving?
Hey. If you can’t stop the slide down the slippery slope, at least you might be able to change the direction of descent just a bit.
It’s gotten very weird. Here in Illinois, the drunk driving statute (including revisions) runs to 30,000 words, and that doesn’t include the administrative section’s procedures for suspending, revoking, and reinstating licenses.
DUI is such a big business that some lawyers, and even some law firms, do nothing but DUI defense. There’s even an ABA accreditation for it.
Throw in substance abuse counselors and the companies who make breath testing interlocks for cars, and you have a lot of people who can profit by lobbying for stronger DUI laws. That makes a difference.
At worst, simply having a gun is kind of like drinking too much to drive — there’s no particular reason it should be a crime (and isn’t a crime in most states, most of the time, assuming you’re an adult. While there are some states — NY among them — that require explicit governmental permission to own or possess a gun, most don’t, although most do require some explicit governmental permission to carry one in public).
Simply drinking too much to drive? Unexceptionable and not uncommon for many adults; almost all observant male Jews, for example, drink far more than that on at least two holidays every year — Purim and Simhas Torah.
I’m sure that I would have blown more than .08 last night — after I got home, I had a few grappas, in celebration of the 212th anniversary of the first successful parachute jump.
Which, by a long route, leads to my orthogonal point: drinking (like the gun stuff) is different, not just the drunk driving stuff: the thought drives some people crazy.
Which is how you get the MADD folks not just wanting to reduce the numbers of drunk drivers on the road (hard to argue that that’s not an end to be wished, I think, although the means isn’t at all irrelevant) but going all Carrie Nation over the idea of some recreational teen drinking, as though, say, a kid having a beer at a party is the same thing as some alcohol-crazed seventeen-year-old barrelling down the road guzzling their second bottle of MD 20/20.
I think it cuts both ways a little bit. On the one hand, I agree that if we could chill out towards drinking in general and do things like tell college kids under 21 you can get as sloshed as you like within this particular area where there are no roads and thus no risk of driving, that would help. On the other hand, MADD types will tell you that to make drinking more ok, you make it more acceptable to do a perfectly acceptable activity plus driving. I don’t agree with them, but I’m not really sure why.
A roadless area is often prime bear habitat so I think you are proposing a mixture of drunks and bears. I bet on the bears.
As Sancho Panza might have put it: whether the bear hits the drunk or the drunk hits the bear, it’s going to be bad for the drunk.
The alcohol should dull the pain.
Scott wrote: “Maybe drunk driving will be different. Different in the sense that we won’t be fooled again. Even if the New York Times and Chief Justice Roberts have already raised their glasses in a toast.”
You know Scott, a big part of what I love about you is your optimism. You truly believe that slippery slopes can be conquered by conceptual ledges, and that the courts, legislatures and the people in general will eventually stop the inexorable march toward total government control.
I just wish I could believe it.
I dunno. Maybe somebody is having me on, but I read that as the equivalent of and maybe I’ll get a pony!. Except that Scott could, if he’d like, probably get a pony.
Then again, I have such a keen eye for irony that I often spot it when it’s not even there.
You’re both right. I’d be loopy to think that one day, we’ll all snap out of it, figure it out and everything will be hunky-dory.
On the other hand, it’s just too easy to be cynical, but then there would be no point to any of this. You gotta hang on to something.
Yeah, but how is the bear going to get the cork out?
Daniel, I think you’ve hit on something here. I’m ashamed to say I never thought of it myself, but it makes perfect sense. All other victims are to blame, to some degree or another, for the reasons you point out. But you can’t be to blame for just driving your car on the road.
So the victims of drunk drivers are absolutely “pure” victims, and that’s what makes drunk driving “different”. It’s not the conduct of the offender, but the size and quality of the potential victim pool.
Put another way, the drunk driving crusades are part and parcel of the increasing voice of victims in the criminal justice system.
I’m not saying I like any of this. I don’t. But I think Daniel may have nailed this one, as far as explaining things goes.
Well, that’s certainly the perception that MADD is selling and they hope everyone is buying in their quest to make it “different”. But is that reality, or the marketing image?
Mileage varies. I definitely feel too impaired to drive after a couple of small beers — although I’m sure I’m not near .08. By about four, I feel sharp as a tack, and am more than mildly confident that the two additional beers did nothing to improve my reflexes. At .08, I’m sure I have no business driving, although I’d love to try one of those tests that the cops sometimes do, where volunteers get to drink and then drive on a test track, and see if I’ve actually turned into Dr. Johnny Fever.
Might I suggest you try this test, and please, PLEASE, videotape it for us.
The booking deputies at our jail will release about 10% of the people charged with DUI after booking because they are not that drunk. OTOH they seldom will release a person arrested for public intoxication and then only to the custody to a sober relative or friend.
The clinical results are that hand-eye coordination is impaired at a lower BAC than the level associated with obnoxious behavior. The clinical results have to be treated separately for naive, social and heavy drinkers and they are not very reproducible.
I think that the low BAC level for DUI was set low because of the clinical results for naive drinkers.