More on Abolishing Drunk Driving Laws

Over at the Economist's Democracy in America blog, E.G. takes issue with my call to end drunk driving laws in favor of punishing reckless driving, regardless of what causes it.

Arbitrariness troubles justice and should be avoided where possible. However, Mr Balko is overstating the arbitrariness of the situation. If a person with a blood-alcohol content of 0.08 is genuinely capable of reasonable driving, they're probably not going to be pulled over. (Even if obviously impaired, the odds of getting caught are low, given the ratio of cars to cops in most cities.)...

From the other direction, drinking is not the only activity that impairs drivers, but the appropriate response to that is to target dangerous behaviours as it becomes possible to do so. Texas is, for example, due to take up some bills that would outlaw text messaging while driving, as other states have already done. It's true that the public is hurt by the consequences of an elevated blood-alcohol content, not the BAC itself. However, the same drinking that elevates blood-alcohol levels limits a driver's effective judgment about his own capabilities; the existence of an external signpost, whether it's 0.05 or 0.08, can help clarify their thinking, and the possibility of sanctions can deter risky decisions. Given the potential costs of drunken driving to the people who aren't behind the wheel, I'm not especially bothered by the inconveniences incurred by the drinkers.

E.G. also writes that my complaints about checkpoints are complaints about checkpoints, not DWI laws themselves. But that's kind of the point. The fact that people between .08 and .10 aren't impaired enough to make the sorts of mistakes clearly impaired drivers make necessitates the need for the roadblocks. Which in addition to being constitutionally suspect, are more revenue generators than highway safety endeavors.

E.G.'s argument seems to be that because BAC is some way of measuring alcohol impairment, we should go ahead and use it, even if it isn't a particularly accurate method of measurement, and even if the cutoff point we choose is mostly arbitrary. It's really an argument against consuming any alcohol before driving. Maybe that's what he wants. I'm convinced that's what MADD wants. But let's then at least be up front about that.

To illustrate my point about impairment and recklessness, consider two scenarios: In the first, a driver is coming home at 2 am. Because there are few other cars on the road, he conducts a rolling stop. A cop hiding across the street sees him and pulls him over. The driver blows .081. He's looking at a pretty severe punishment, not for the rolling stop, but for having a level of impairment that's a tick over a mostly arbitrary legal limit. Contrast that to a driver coming home at 2am who hasn't slept in 36 hours and flies through a stoplight at 60 mph. He gets pulled over, but hasn't had a drop of alcohol. He's going to get a much less severe penalty, despite the fact that his infraction was more serious and that he's much more impaired.

E.G.'s endorsement of text messaging bans is another example of someone calling for laws banning allegedly dangerous activity with little regard as to whether those laws will actually work. As I've argued before, how exactly are police going to enforce this law? That is, when you're driving by at 65 mph, how can a police officer sitting in a cruiser tell if you're texting or if, for example, you've pulled up an application like GPS Drive on your phone, and are checking for your next turn? If you're going to argue that drivers shouldn't be using GPS aps on their phone, either, can you really argue that those aps are less safe than fumbling with a map or an atlas? Or reading directions printed out from Mapquest? Are we going to argue that maps, atlases, and GPS devices are all also too distracting and should be banned?

Sure enough, the first study of texting bans has actually shown them to make the highways less safe. Accidents and fatalities went up. The researchers who conducted the study speculate that in jurisdictions with highly-publicized texting bans, motorists lower their phones to avoid detection, which takes their eyes off the road. Ironically, the time you're most likely to get caught texting and driving is the time when it's least harmful—when you're stopped at a light, or driving slowly enough for a cop to see what you're doing.

I realize that "abolish drunk driving laws" sounds a bit like a parody of libertarianism, like arguing for heroin vending machines in elementary schools (E.G. calls it a "stunt argument"). But I'm not arguing in favor of a freedom to drive while obliterated, or that there's some right to drive drunk that outweighs the safety of other motorists and pedestrians. I'm arguing that public safety laws need to be clear, enforceable, and should actually achieve their intended purpose. I'm not sure our current DWI laws meet any of those criteria. (It's just a small sample from one city, but see this recent article from Nashville, where DWI arrests are down by a third due to budgetary woes—to no effect on actual DWI fatalities.)

One other thing. Some commenters here and elsewhere argued that removing the de facto BAC threshold would put more discretion in the hands of police officers. I'm not sure that's true. Reckless driving is already a crime. And police in most jurisdictions can already arrest you for DUI even if you're below .08. The .08 threshold is merely the point at which you're de facto assumed to be intoxicated. Now that most police departments use dash cams, it should be pretty easy to show with video evidence that a motorist was swerving between lanes, driving at excessive speeds, cutting people off, or otherwise driving recklessly. And that is what makes the roads less safe, whether it's caused by too much to drink, sleep deprivation, medication, or disciplining your kids in the back seat.

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  • avsteele||

    Now that most police departments use dash cams, it should be pretty easy to show with video evidence that a motorist was swerving between lanes, driving at excessive speeds, cutting people off, or otherwise driving recklessly. And that is what makes the roads less safe, whether it's caused by too much to drink, sleep deprivation, medication, or disciplining your kids in the back seat.

    All true. And besides, even if there werre no speicifc law against drunk driving, the BAC would still be a legitimate piece of evidence to support a charge of reckless driving. Taking the DUI laws themselves off the books wouldn't prevent the fact that you were drunk from being evidence of misconduct.

  • federalista||

    All only partly true. Driving is not an inherently safe activity and when something untoward occurs all drivers need to take avoiding action. An impaired driver makes the roads less safe by having reaction speeds that are so slow that they are unable to avoid crashing.

  • Apogee||

    An impaired driver makes the roads less safe by having reaction speeds that are so slow that they are unable to avoid crashing.

    I'm curious as to why all the 'concerned' commenters fail to bring up the fact that licenses to drive are given out like candy. Pass a lame test and get your license.

    If, as you insist, driving is not 'an inherently safe activity', one would think that raising the requirements for driving proficiency would at least get a passing mention.

    Again, forced to ride with either a 90 year old stone cold sober or Danica Patrick at a .12 BAC?

    Sorry, but I'll choose the professional driver, even though she's 'technically' drunk.

  • BakedPenguin||

    ...Danica Patrick at a .12 BAC?

    She'd probably have to have a couple more drinks before I had a shot. I'd still try that over the 90-year-old, though.

  • Zeb||

    Calling DWI roadblocks "constitutionally suspect" is a bit too charitable, I think.

  • squarooticus||

    This is why I go apoplectic when I hear about the respect for stare decisis: what some group of dumbasses in black robes thought the Constitution or codified laws meant at some point in the past should be utterly irrelevant to new decisions. E.g., there should be no discussion regarding stare decisis when the Constitution starts off a clause with, "Congress shall make no law...": just because some gang of nine thought that clause didn't mean what it clearly says doesn't mean that misjudgment should be preserved and extended in perpetuity.

  • ||

    I agree. I read once that the idea of "precedent" is that at some time in the past, some group of judges, some of whom may currently be dead, somehow knew more about the current question before the court than the current members of the court do.

    I recall when Roberts was being confirmed he mentioned that "long standing" precedent shouldn't be overturned. What immediately popped into my head was the question: How long do we have to get a bad decision overturned before it becomes "long standing"? Since there is no such thing in the US Constitution, I suppose the appropriate time limit is something that exists only in the minds of the judges on the court.

  • West Texas||

    And don't get me started on the "no refusal weekend" bullshit that they're doing now on the big holidays.

    By-fucking-god, they're going to get that de facto evidence come hell or high water.

  • jester||

    "heroin vending machines in elementary schools"

    I somehow feel cheated by my educational experience.

  • Ska||

    I couldn't even smoke cigarettes inside my high school!

  • jester||

    DWI laws have increased my level of alcohol consumption. When I am drinking socially out at a bar, I drink less. At home, I can get blotto while posting on H&R.

    DWI laws have turned me into a pathetic drunken homebody with no friends.

    (note: the irony-deficient shouldn't read too closely, but there is underlying truth to Radley's assertion that these laws do squelch a lot of the joy in life like going to a superbowl party)

  • LarryA||

    And that is what makes the roads less safe, whether it's caused by too much to drink, sleep deprivation, medication, or disciplining your kids in the back seat.

    The ones I’m most afraid of are those that are just pissed off.

  • Jess Pystov||

  • Invisible Finger||

    If a person with a blood-alcohol content of 0.08 is genuinely capable of reasonable driving, they're probably not going to be pulled over.

    E.G. is sucking state cock here because speeding isn't the same as reckless driving but is used as the PC for field sobriety tests.

  • Ska||

    Not to mention saying that the law should be applied like some sadistic lottery.

  • ||

    Our legal system has a huge bias in favor of letting motorists off the hook for driving like asses. One good thing (the only good thing?) about the DWI law is that it overcomes this bias in the case where the driver is a drunken ass.

    An example is the case of Tracy Sorum, who killed Jessica Bullen on a Wisconsin road in 2005. Tracy couldn't keep his car going in a straight line because he was too busy looking at a boil on his throat in the rear-view mirror; in court, he admitted taking his eyes off the road for 12 seconds.

    The jury, perhaps thinking "there but for the grace of God go I", didn't think that rose to the level of driving like a criminal ass and Tracy got off scot-free (not for the first time, as he had a history of driving like an ass).

    We're never going to have a law against gazing at your neck while driving. Unfortunately, I'm also not too confident that we'll ever get to the point where driving like asses isn't considered to be just something that innocent people do. The only solution I see is cars that drive themselves.

  • ||

    That's right around the corner commercially. I give it 10 more years, tops. I suspect the insurance industry will be a driving force for this, no pun intended.

  • ||

    Imagine a system of self-driven cars as mistake-free as current GPS systems. If that doesn't scare you off the idea, then YOU scare ME.

  • BakedPenguin||

    The story about how author Stephen King got hit is pretty similar. Some dumbass dropped a candy bar while driving his van, and decided to hunt for it @ 40 mph.

  • ||

    As if to illustrate your point, I have been pulled over at least three times in what were clearly attempts to curtail drunk driving; twice for exceeding the speed limit the third timefor having a tail light out. In each case, the questioning was geared toward determining if I had been drinking and in each case I was released without being cited - even in the two cases in which I quite clearly had been exceeding the speed limit by at least 10 to 15 mph. I guess if they couldn't get a dui collar out of the stop, I just wasn't worth their time.

    Ironically, the time I was pulled over for the tail light being out I had been drinking and was probably over the legal limit, but was able to pass the field sobriety tests.

  • ||

    Too many words.

    It's really an argument against consuming any alcohol before driving. Maybe that's what he wants. I'm convinced that's what MADD wants.

    That's better. Also:

    The .08 threshold is merely the point at which you're de facto assumed to be de jure intoxicated.

    You're welcome.

  • Rrabbit||

    Technically, Balko is wrong - at 0.8, most drivers are impaired.

    However, at 0.8 they are not as impaired as at 1.1, or at 1.5. Some states have laws where driver face mandatory jail time for the first DUI at 0.81 already. That is absurd.

  • squarooticus||

    Technically, Balko is wrong - at 0.8, most drivers are impaired.


    Technically, at 0.8, most drivers are dead.

  • Poppin' Caps lock||

    +500

  • Poppin' Caps lock||

    At that level, most people aren't even drivers, as they didn't have the chance to assume that role.

  • ||

    the existence of an external signpost, whether it's 0.05 or 0.08, can help clarify their thinking,

    Complete and utter bullshit, since the individual does not have direct knowledge of his BAC moment to moment.

    When was the last time you heard about a cop saying, "Well, just be more careful, next time"?

  • Binky||

    Oh, about 1975.

  • Neu Mejican||

    Complete and utter bullshit, since the individual does not have direct knowledge of his BAC moment to moment.

    An interesting piece of this is the fact that 0.08 was chosen because that was the level at which people report feeling drunk, for the most part. The "arbitrary" level is set at the BAC that would correspond to a subjective sense that "I should let someone else drive" (for most people).

    People are measurably impaired at lower BAC. At 0.08, the number of people who are not is vanishingly small. The main problem with his argument is the suspect premise that BAC is a poor proxy for impairment. It is, actually, pretty good as a proxy of impairment.

  • robc||

    And yet, .08 BAC drivers are rarely responsible for DUI deaths. Those are generally the result of .14+ drivers.

    So, while .08 drivers are impaired, they dont appear to be over dangerously impaired.

    Personally, I wouldnt drive at .08. And maybe that is why -- most people who are impaired at .08 realize it, those who arent seriously impaired are the only ones driving at it? While at higher BAC levels, people lose the ability to make that judgement.

  • Rrabbit||

    At .08, reaction times are about 30-50 per cent longer (with reaction times on warning signals using red lights increased a bit more), peripheral vision is reduced, the ability to concentrate has been reduced, and the ability to make good judgments is impaired, too.

    How much that increases the risk of creating an accident, or a deadly accident, depends on a large variety of parameters. Overall, at 0.08, the
    risk or creating an accident seems to be between four times and ten times compared to unimpaired driving. At 1.1, it is approximately double that.

  • Coeus||

    .08 was chosen for purposes of revune generation and to further MADD's prohibitionist agenda. When doctors were asked to set the limit, they set it at .1 or .12.

  • Neu Mejican||

    Doctors are not the ones that do the research on this. See Rrabbit above. Doctors typically are not experts on this kind of thing.

  • Coeus||

    If you find that significant, than I've got bad news for you. Driving reaction time (I looked up driving specifically, the discrepancies are greater when using other tests) between 20 and 65 decreases between 20% and 30%, and the differences between gender at any age are between 15% and 25% (the numbers have a range because I looked up several studies).

  • skr||

    plus the whole alcohol judgement issue.

  • ||

    I'm not especially bothered by the inconveniences incurred by the drinkers other people.

    I think we have found the real nub of his argument.

  • Binky||

    Are we going to argue that maps, atlases, and GPS devices are all also too distracting and should be banned?

    Yes! Yes! Fucking ban all this stuff. Mandate all cars in the US have a device that cuts off the ignition for a hour unless both hands are on the wheel. *Then* you'll see some distracted driving!

  • ||

    Dear Glenn Ammons-

    So what?

    If the guy was guilty, the prosecutor obviously failed to prove it to the jury beyond a reasonable doubt. Why would you think passing a completely unrelated law would make things somehow better?

  • Ivan||

    DUI vs cell phone use while driving.
    http://www.unews.utah.edu/p/?r=062206-1

  • ||

    0.08 was chosen because that was the level at which people report feeling drunk, for the most part. The "arbitrary" level is set at the BAC that would correspond to a subjective sense that "I should let someone else drive" (for most people).

    Well, that certainly settles it; how could you possibly argue with that?

  • Neu Mejican||

    Are you saying that this is a poor proxy for determining the "drunk" in drunk driving?

  • Coeus||

    He doesn't have to. Just repeating that crap makes it obvious (for most people) that it's a piss poor proxy.

  • jester||

    Let's not forget that one of the lame-o arguments against the legalization of recreational marijuana in the state of California was that there was no way to measure marijuana intoxication.

    In the words of Nurse Diessel: 'We're dealing with disturbed people, heeere!'

  • Rachel||

    I'm curious what you would say to a sentence enhancements or increased punitive damages based on intoxication as an aggravating factor?

  • jester||

    Punishment should fit the crime. An amazing standard, isn't it?

  • JB||

    The average performance behind the wheel of a 65-70 year old is likely in the range of a 25 year old at .04-.10 BAC.

    It's time to ban the old fuckers.

  • jester||

    The avg. of course. Good job JB in showing the ludicrousnes of our current std. I would argue that my mother and step-father as well as my father are still competent drivers. My grandmother driving at the same age (25 yrs ago) was a menace. It's funny how license renewal revolves around either automatic or maybe a vision test but little else.

  • jester||

    On another note, the truck I drive belonged to an 80-yr.-old who did not lose her driver's license but was taken off the streets by her daughter after she drove the druck off the road in a dementia-caused accident.

  • ||

    The web site http://www.duiblog.com/ is an excellent source of information about DWI laws and methods.

    For instance:

    Most field sobriety tests are actually designed to make you look drunk, rather than determining if you actually are drunk.

    the ratio between the amount of alcohol in your breath and blood is called the partition ratio. It can vary from person to person, and for a single person, from minute to minute. It varies from 1,100 to 1 to 3,600 to 1. All breathalyzers use 2,200 to 1. So if, at the time of your breathalyzer test your partition ratio happens to be 1,110 to 1, the breathalyzer will return a value double your actual BAL.

    Breathalyzers do NOT measure alcohol, they measure the methyl group, which exists in many substances other than alcohol.

    The preceding is just a short list of items I have learned via this site. I strongly recommend it to anyone that wants to learn more about the effects of DUI laws, how flawed DUI tests are, etc.

  • دردشه عراقية||

    Thanks

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