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by Peter Moskos

October 12, 2010

Abolish Drunk Driving Laws?

So says Radley Balko: "If lawmakers are serious about saving lives, they should focus on impairment, not alcohol." I'm not certain where I stand on this, but it does make some sense. Plus, I always appreciate counter-intuitive thinking.


Anonymous said...

Well, Radley admitted that it sounded radical, but I mostly agree with his sentiments. The .08 BAC is likely motivated more by politics and pressure from advocacy groups than it is by science and concerns over public safety.

If the focus became reckless driving, officers would still need to treat chemically impaired people as a special case. In other words, officers would still need to have the power to say, "you can't drive home" after the drunk or drugged driver is cited for reckless driving. That is about the only issue I had with what Balko proposed.

Dave H.- IL

Anonymous said...

The BAC limits just need to be put back up where they belong.

Bob G. said...

The current BAC limits don't accurately reflect (and never really have) exactly HOW alcohol affects every person.
Seems more arbitrary thatn anything.

Some people CAN have higher tolerances and are not REALLY impaired, while others merely have to SMELL booze, and they're flying!

But that's just my thoughts.

CPM said...

I just read the article and at first read, I think I agree. I just looked up VT statutes for DUI and we all ready have language to that effect, read (a)(2). although I can not recall any being processcuted for (a)(2). We have used negligent operation which is another offense Vt for some under .08%

Peter, I put another post under "On writing" about a book to read hope you saw it.

Title 23 VSA 1201

(a) A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway:

(1) when the person's alcohol concentration is 0.08 or more, or 0.02 or more if the person is operating a school bus as defined in subdivision 4(34) of this title; or

(2) when the person is under the influence of intoxicating liquor; or

(3) when the person is under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of driving safely; or

(4) when the person's alcohol concentration is 0.04 or more if the person is operating a commercial motor vehicle as defined in subdivision 4103(4) of this title.

(b) A person who has previously been convicted of a violation of this section shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway and refuse a law enforcement officer's reasonable request under the circumstances for an evidentiary test where the officer had reasonable grounds to believe the person was in violation of subsection (a) of this section.

(c) A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway and be involved in an accident or collision resulting in serious bodily injury or death to another and refuse a law enforcement officer's reasonable request under the circumstances for an evidentiary test where the officer has reasonable grounds to believe the person has any amount of alcohol in the system.

(d) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state shall not constitute a defense against any charge of violating this section.

(e) A person may not be convicted of more than one violation of subsection (a) of this section arising out of the same incident.

(f) For purposes of this section and section 1205 of this title, the defendant may assert as an affirmative defense that the person was not operating, attempting to operate, or in actual physical control of the vehicle because the person:

(1) had no intention of placing the vehicle in motion; and

(2) had not placed the vehicle in motion while under the influence

Anonymous said...

The present laws are about setting an unambiguous tone. The tone is that driving after having drunk results in the death and crippling of innocent people for a stupid reason. Don't do it, even a little, even if you think you're the exception and you can handle your drink.

You can agree with all of Radley's points (even though many of them are shady and ill-reasoned, ironically, especially the one about checkpoint use causing a spike in DWI fatalities; I still have no idea what his logic is and I've read that part five times) and still support the .08 limit. It's about zero tolerance, and zero tolerance has its uses in moderating clearly destructive practices.

My worry is that libertarians like Radley, if you pry, might admit that their quest for personal freedom really does mean the freedom to allow people to make stupid choices that hurt other people.

The .08 limit sets a tone, nationwide, that you should stop drinking long before there's any doubt about your impairment if you plan on driving.

Radley wants us to be free to test our limits and push ourselves. If we guess wrong a kill a mom and her son on the way home from band practice, then at least we knew we were free.

Anonymous said...

Radley must also think it's okay for a person to have drawings of naked little kids as long as the person doesn't actually touch naked little kids.

Or maybe, if he sketched out an argument for why even the drawings are not tolerated, he would inadvertently make the argument that sometimes its best to draw a line far on the safe side just to set a clear tone about a very dangerous practice.

PCM said...

I think that's a little unfair to Balko. First of all, I think both Balko and I would hate the government telling anybody what they can and can't draw.

[And there might be benefits in giving people with horrible sexual desires a harmless outlet. (Better to have a creep get off looking at pictures than rape a little boy.) But I'm more comfortable making this argument with adult porn, where at least one much more violent-porn-permissive country, Japan, has very low rates of violent rape.]

But my point isn't to defend pedophilia but to bring attention to the law of unintended consequences. So back to drunk driving.

I am naturally suspicious of the anti-drunk driving movement because I think it's indelibly linked to the anti-alcohol prohibition movement. (My favorite example, which is from a while back now, was when MADD came out against Amtrak having wine tastings on one of their long distance trains).

But this doesn't take away from the dangers of drunk driving. But I see Balko's point as this: the problem is impaired driving, not necessarily drunk driving as measured by an arbitrary blood-alcohol content. By linking the law to BAC, we make life tougher for law enforcement. When drunk drivers kill people, usually their BAC is absurdly high. In other words the problem isn't people with a BAC of 0.8 but with people so blotto they drive the wrong way down a freeway. How do we reach them? Certainly not by lowering the legal BAC level even more.

Radley makes an interesting point, and assuming it's true, shouldn't be overlooked. When the BAC limit was reduced from .1 to .08, fatalities went up. So at its core, the new law failed. Failed laws should be repealed or at least reexamined.

Passing stricter laws can make us feel like we're doing something good, but if the goal is to save lives, there might be better ways to do it. Too often "getting tough" doesn't work.

Balko believes that police are wasting their time trying to enforce the new lower BAC limit at checkpoints rather than concentrating on dangerous drivers.

Look at the problem of binge drinking among college students. It became worse after raising the drinking age from 18 to an absurd and unrealistically high 21. The law didn't reduce drinking, it increased stupid drinking. So when colleges cracked down on beer kegs, students switched to harder stuff that was easier to hide. But what's wrong with college students drinking beer? It's certainly better than drinking from a mystery bowl of spiked punch.

As always, the answer isn't more crack downs but to encourage a culture of responsibility. In terms of kids drinking, it might involve lowering the drinking age to 16. In terms of saving lives on the road, it probably involves a greater focus on all forms of dangerous driving.

PCM said...

And Dave, I think cops would still have the discretion to tell people they can't drive. I certainly did. We didn't have an easy way to test BAC, but I knew when someone was smashed. That's when the keys get locked in the trunk and the person walks home.

Anonymous said...

"When the BAC limit was reduced from .1 to .08, fatalities went up. So at its core, the new law failed."

Peter, are you serious? You know full well there is no way, whatsoever, to draw this conclusion with nothing more than this data, which is all the data I can find around here.

Maybe, for example, cultural and economic forces were set to drive the drunk driving fatality rate to triple, but this new law came to the rescue and they only doubled.

Maybe fatalities went up, but not to a statistically significant degree.

Maybe they went up in total, but at a slower rate than the increase in the population of drivers, or miles driven by the population.

Maybe the law went into effect at a time when federal COPPS money stopped coming in, and the national police officer headcount started to fall, so there was less enforcement going on out there, and so more people were able to drive drunk unapprehended and kill people.

If you have ever invoked a slippery slope argument to make a point (I think you did in your flogging draft above), then you might agree that a .08 stops people before they get near the slope of thinking it's okay to test the limits if their ability and see how much they can drink if they're impaired.

Cars are death machines unless they are under control, and we can't signal that people can roll the dice in judging their impairment. We need a law that draws a line well short of impairment and sets a clear cultural tone.

The key is for society to echo this sentiment and invoke informal social control mechanisms as well. I see this happening more and more and it's a good sign.

Car accuidents kill more people than terrorism, blah blah blah, so it seems that the simple rule that you will absolutely not drive (a privelege, not a right or freedom) if you've had more than one drink as a woman or two as a man is a sensible, important way to stop innocent people from getting killed for no good reason.

Jack O'Lantern said...

I'll make an economic point. It is similar to the effects of pigouvian taxes. The reason you tax some activities is because you do not like the behavior or the effects of the behavior -- negative externalities. DUI laws versus driving while impaired is similar.

So one may place a tax on the stuff coming out of the smokestack of a factory or the blue goo flowing into the river because those activity negatively impact other people. DUI and impaired driving have significant negative effects, including death.

The real question we should be asking is how much we care about drinking or drugs as the cause of the impairment. If we only care that the driver is impaired, whatever the cause, then DUI laws are pointless and arbitrary. If we care about the source of the impairment -- age and senility; legal vs. illegal drugs; sleepiness; drinking, then we have disparate sanctions for different types of impairment. And that is why we persecute drunks and druggies, tell the sleepy to take a nap, and politely ask the little old lady to be less careful. This is despite the equivalent outcomes from the circumstances.

Anonymous said...

"And that is why we persecute drunks and druggies, tell the sleepy to take a nap, and politely ask the little old lady to be less careful. This is despite the equivalent outcomes from the circumstances."

Perhaps it's because everyone gets old and sleepy whether they want to or not, but whether you drink or do drugs and drive is completely within your control. One of the reasons we care about the source of impairment is because there are different degrees of blameworthyness for different types of impairments.