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Limiting Drunk Drivers to Small Vehicles:

A friend of mine mentioned that he'd heard that in Austria, people who had some number of drunk driving convictions were allowed to drive only a particular kind of very small car. That struck me as an intriguing idea.

Naturally, to implement this, the legal system would have to decide what the threshold number should be, and also how long they should lose the license for altogether. At one point on the continuum, one might not want to constrain the driver at all. At the other extreme, one might insist on barring the person from driving altogether. Still, I take it that at some intermediate point one might conclude that

(1) someone is enough of a menace that their liberty to drive should be constrained at least for some time even once they're let out of jail, but

(2) it would be too much of an economic burden on them and their families to strip them of a driver's license altogether.

If that's so, why not limit the person to the kind of vehicle that would cause the least possible damage to others, if it is driven drunk? It's true that all motorized vehicles can kill people other than the driver, but some are more likely to do so than others. If the person is to be let out on the road, might as well minimize the risk to bystanders.

One possible mandatory vehicle is a motorcycle, though perhaps there the risk of injury to the driver in case of an accident (which can of course be a non-drunk-driving accident, or even one in which the driver is largely innocent). Another might just be a very small car. True, there's a tradeoff between risk to people in other cars and risk to the driver's passengers. But I take it that most adult passengers are more likely to have in some measure knowingly assumed the risk than are outsiders, since they know they're getting into a small and thus somewhat more dangerous car. I would have some concern for their welfare, but not as much as for the welfare of the drivers and passengers of other cars.

Finally, while this is obviously a restraint on liberty, it strikes me as a pretty justifiable one (assuming it works). Drunk driving is rightly made a crime; the legal system may well constrain a person's liberty for committing this crime, especially since he has shown himself to be something of a menace to others' lives. This solution may preserve more of the drunk driver's liberty than the alternative, since the alternative may well, at least in some situations, be a total ban on driving. One can also try this sometimes-useful (though of course hardly perfect) libertarian rule of thumb for deciding the proper rules for government-owned shared resources: If the resources were privately owned, would reasonable owners who had full information about their customers impose such a constraint on their customers in order to better protect other customers? The answer, I think, would be yes (again, assuming the proposal works), which would cut in favor of this proposal.

But that's just my quick and tentative reaction; I'd love to hear what others think. I'd also like to know something more than just a vague, unsourced rumor about whether any jurisdictions have indeed experimented with this.

cirby (mail):
We have a special vehicle for people who lose their license already.

It's called "the bus."

Or the alternate form of transport, "the bicycle."
1.2.2008 7:51pm
Cornellian (mail):
Heck, make them drive motorcycles.
1.2.2008 7:51pm
Just Saying:
Cornellian-- If only that point was addressed in the post.
1.2.2008 7:57pm
Waldensian (mail):
I have pondered a somewhat related matter recently.

We use age as a proxy for responsibility when drinking; i.e. you can't legally imbibe at 20, you can at 21. Rough justice, but not totally insane, and if you are going to draw a line it has to be drawn somewhere.

But why, oh why, don't we use prior conviction for drunk driving as a disqualifying characteristic when it comes to alcohol purchases? We already know those people have already done exactly what we're most worried about.

My proposal: demand ID from everybody, regardless of age, when selling or serving booze. If you're convicted of a DUI, you get a big stamp on your ID, and it's the same as if you're under 21 -- no sale.

Sure, the DUI offenders will just drink at home, or get somebody else to buy it, or whatever, but that risk exists for the 20-year-olds.

I just can't understand why we treat convicted drunk drivers better than law-abiding 20-year-olds.
1.2.2008 8:07pm
FoolsMate:
To enhance public safety and to mitigate potential property and medical damages, this policy should also require:
(1) prominent display on hood, side doors and rear of the words: "# DUI convictions " thus warning other drivers to be alert. Observers of such a car driving erratically would be likely to call 911, forming a sort of neighborhood watch against probationary drivers.
(2) the offenders to carry high liability (>$500k total ?) comprehensive insurance coverage, based on likelihood of future property damage and/or injury to others.

(1) or (1)+(2) could act on their own, without the special car requirement. I think (1) in particular would be very effective. All of these ideas seem appropriate for a repeat offender or a first offense that caused injuries or property damage. For a generic first time DUI conviction, such punishments seem a bit extreme to me.
1.2.2008 8:16pm
frankcross (mail):
Seems a little silly to me. The benefit would seem pretty small. And what if the drunk driver had a family, is there room in the car to transport them? What if his work required a truck? Indeed, what about work vehicles generally. I'm sure there are other practical reasons for needing a bigger car that I didn't immediately think of.

What about the in-car breathalyzer technology that prevents one from ignition unless it is passed. Makes a lot more sense.
1.2.2008 8:19pm
halliwell:
Sure, and let's mandate that drugs dealers drive Cadillacs instead of Bentleys (oh, the shame!).

Or that midgets may'nt drive unless they convince ten or more of their fellows to pile into a Smart car, Cinquecento or Goggomobile.

Perhaps we should insist that drunken portly half-wits operate no businesses other than casinos.

Break dancers and rap singers must expend 200% of their incomes (before taxes) on jewelry, prostitutes, and drugs.

Perhaps others can add to this list.
1.2.2008 8:19pm
Richard Gould-Saltman (mail):
I like it, but the SmartCar is WAY too nice. I'm thinking they should bring back the Messerschmidt and Isetta for these folks. I like the sign idea, too!
1.2.2008 8:36pm
hsh:
Even a small car driven at a very moderate speed can cause a lot of damage, particularly to a pedestrian. The solution, it seems to me, is to restrict those with DUI convictions to riding lawnmowers and only mowers with government approved speed governors. There would be no need to label these vehicles as being operated by drunks. If you were to see some guy driving his Snapper on the shoulder of the I-5, you could be pretty sure of how it came to pass.

Many years ago in a small farming/ranching community in Nebraska, one of the local characters lost his driver's license because of DUI. At the time (and probably still), a license was not needed to operate a tractor on the road. He went from driving a Ford to the bar to driving a John Deere.
1.2.2008 8:49pm
Alan Gunn (mail):
Nobody, including me, is going to defend drunk driving. But we may have gone past sensible legislation by reducing the standard for drunkenness to .08, just as we sometimes try to fight excessive speeding by imposing ridiculously low limits. The result of this sort of thing is to increase the number of violators while making once-serious violations into things that may or may not be that serious, depending on the circumstances. To make things even worse, we then interfere with the insurance market by establishing assigned-risk pools, which end up enabling really serious offenders to afford the insurance they mostly couldn't buy in a world without regulation, while making less-serious violators in the same category (like the .08 first-time offender) subsidize the truly dangerous.

So, while this proposal looks pretty good on paper, I wonder how it would emerge from an actual political process, and whether it might open up whole new realms of regulation. Shouldn't you libertarian types hesitate before coming up with new ways for the government to prevent people from interfering in their own lives?
1.2.2008 8:52pm
Chaf:
hsh: Excellent. I'm all for it.

For safety reasons, of course, we'd want to remove the mower BLADES, though, wouldn't we?
1.2.2008 8:55pm
Mark Bahner (www):

A friend of mine mentioned that he'd heard that in Austria, people who had some number of drunk driving convictions were allowed to drive only a particular kind of very small car. That struck me as an intriguing idea.


Why not simply have a breath analyzer interlock on the ignition (and require them to use that car only)?
1.2.2008 8:58pm
Donald (mail):
I think Frankcross has it right. The much simpler solution (already widely in use) is to require an offender to use an interlock device. (Search wikipedia for more info.) As frankcross points out, you have to blow clean in order for the car to start. What many people don't realize, though, is that failed attempts at ignition are logged (along with the level of alcohol detected), permitting the court that imposed an interlock requirement in the first place to revoke driving privileges all together.
1.2.2008 8:59pm
Mark Bahner (www):
Oops, Frank Cross, sorry I missed your comment on the breath analyzer interlock.
1.2.2008 9:01pm
Mr. Liberal:
I think Waldensian has a very interesting proposal. I do not think it would do too much to reduce drinking at home, but it might do something to reduce drinking at bars. And I presume that drinking at bars is probably more related to DUIs due to the need to transport oneself home after closing. I personally think we should get rid of out dated laws requiring bars to close at 2 am. How many people have to be killed by drunk drivers before we do away with this puritan relic?

There are some other problems with the idea. If I am throwing a party, am I supposed to check everyone's ID before letting them have a beer? Nowadays, you can have a big case of beer in a center area where everyone serves themselves. This is perfectly reasonable, as long as everyone at the event is over 21. It seems that under your proposal, anyone who is hosting an event would have to strictly regulate the consumption of alcohol.

As to the idea of requiring smaller cars, I do not think it is so great. The idea is that this is some sort of intermediate punishment, perhaps because the economic cost of taking away a driver's license is too high. But really, if you do not have another small car and you can afford one, you probably are not in such a dire economic situation. I do not like this punishment, because it seems as though it roughly translates into allowing those who have the financial resources to escape a situation of where they are banned from driving altogether, but not those with lesser resources.

I think the better remedy is the one we already have.
The in-car breathalyzer technology mentioned by frankcross. In my county required installation of a breathalyzer that prevents you from starting the car if it detects sufficient alcohol in your breath appears to be a standard penalty in DUI cases.
1.2.2008 9:04pm
Elliot123 (mail):
I've often wondered if a special day-glo orange license plate would have any effect. Such cars could only be driven during hours determined by the court in setting probation. Reds could drive from 5AM to 7PM. Greens could drive from 6PM to midnight, etc. Any time the car was on the street outside its prescribed hours and within the period of probation, it would be subject to being stopped by the cops. It should be easy for the police to spot such plates; they have no trouble spotting the one square inch decal that tells them my registration is expired.

It would also let the rest of the drivers stay clear of the car if they came up on it at 11pm on a Saturday night.
1.2.2008 9:12pm
John Neff:
In my state the medical and dental commissions will suspend a medical/dental license for repeated incidents of alcohol/drug abuse and require the licensee to enroll in a residential treatment program and then they are placed on probation for a lengthy period of time under strict supervision. If that does not work they revoke the license and they may also recommend criminal prosecution.

A friend of my son's went through that and we all thought he was going to be revoked but he finally got-with-the-program and has been dry since. Revocation of medical/dental license is a mighty big hammer and it appears this program has been effective though costly (the subject pays all of the costs by the way). OTOH what would be the cost if the subject lost their license and kept on drinking and driving?

There are other similar and less rigorous/costly programs that have fairly low relapse rates but not as low as the medical/dental remedy.
1.2.2008 9:12pm
Dr. Weevil (mail) (www):
At my last job, I had a backup plan if my very old and unreliable car died on me. Work was 1.75 miles away, with several hills in between, so walking and bicycling didn't seem attractive, particularly in the 97-degree North Carolina summers (no shower at work). There was no convenient bus route. I figured in a dead-car emergency I would buy the cheapest motor-scooter available, preferably used, to get to work and the grocery store until I saved up enough for an actual car. The only hitch: my friends told me that everyone would assume that I'd lost my license for drunk driving, because at least in North Carolina small scooters are the only motor vehicles allowed when you've lost your license, and convicted drunk drivers are just about the only people other than teenagers who drive them.

The only motor vehicles except for ride-on lawnmowers, I should say, but I don't think it's legal to drive them on the road for any distance. For years, people have told a story about George Jones driving 8 miles to the liquor store when his wife (Tammy Wynette) took away his car keys, and being pulled over for drunk driving on the way back, since he couldn't wait until he got home to start drinking. Many have thought the story 'too good to be true', but he confirmed it in his memoirs a few years ago.
1.2.2008 9:12pm
Zathras (mail):
I have a legal question for the Austrian/EV proposal. Suppose a state passes such a rule, so that someone convicted of DWI/DUI has to drive one of a list of cars. Would such a rule be enforceable in another state if the laws of the second state were silent on the rule?
1.2.2008 9:19pm
swg:
How would the offender get the small car if he didn't already own one? I guess he'd have to rent or purchase one? That's a pretty serious expense on top of all the other costs of a drunk driving offense. Of course, people who lose their licenses must pay bus or taxi (or whatever) fare, but that's much less than the cost of renting a vehicle for six months. Maybe many offenders, if given the choice between loss of license and small-car-only privileges, would choose the latter despite the costs; but wouldn't many people have a problem with the fact that only the wealthy could afford a very useful benefit (personal transportation) that has only a marginal effect on the threat posed by drink driving (small cars are still pretty dangerous if driven by drunk people)?
1.2.2008 9:26pm
swg:
*drunk* driving
1.2.2008 9:27pm
Mr. Liberal:
Elliot123,

The only problem with your idea is that cars are not always closely associated with the person who gets the DUI. Are you going to require these license plates to be installed on every car registered to the offender? What about people who do not have any car registered to them, because they drive a car belonging to a family member? What about other people who use a car so registered? I think you are not considering carefully enough the problem of people sharing their cars.

If Joe gets a DUI, does that mean that his wife loses her job working the night shift because the family car gets tagged with one of your license plates? And who exactly picks up their rebellious daughter when she ends up stuck across town in the middle of the night. Joe can't even lend the car to a friend or his wife to pick her up.

I don't think this idea is administrable.
1.2.2008 9:31pm
Skyler (mail) (www):
So if the person forced to drive the tiny car gets into an accident that is not his fault and is killed or maimed because it is such a tiny car and not as crashworthy as the car he or she would have chosen for themselves, should the government be liable?

Nah. The government never takes any responsibility for its silly policies.
1.2.2008 9:35pm
Richard A. (mail):
Statistically SUV drivers cause more fatalities to innocent people than are caused by drunken drivers in cars. So I fail to see the argument for banning drunk drivers in small cars when they are less of a hazard than sober drivers in SUVs. Banning SUVs would save more lives of people in other vehicles than banning drunken driving. The typical drunk driver in a car kills only himself while the drivers of SUVs, whether drunk or sober, have a nasty habit of taking out lots of other people.
1.2.2008 9:39pm
Dave Narby (mail) (www):
Great idea.

Let's do the same thing for aggressive drivers and incorrigible speeders as well.

And while we're at it, make them display a bumper sticker saying: "The court ordered me to drive this because I'm a drunken/aggressive/dangerous/lousy driver!"

We'll have the safest streets anywhere in the world, ha hah ha haaa!
1.2.2008 10:12pm
DeezRightWingNutz:

Nobody, including me, is going to defend drunk driving.


I will. Not that driving drunk doesn't impair the driver, just that I could out-drive most sober drivers when I'm drunk.

I'm still not certain why the tort system isn't sufficient to address this issue. At minimum, the penalties should be much more graduated. Something like:

Ticket for driving between .05-.08
Misdemeanor punishable by fine/3 days in jail for .08-.12
Increase the penalty for increased drunkenness thereafter

I'm not sure if those are exactly right, but it seems dumb that I can drink three beers and I have to worry about driving home when I know I'm able to drive, because a DUI is a life-changing event.

Also, MADD sucks.
1.2.2008 11:04pm
DeezRightWingNutz:

The in-car breathalyzer technology mentioned by frankcross. In my county required installation of a breathalyzer that prevents you from starting the car if it detects sufficient alcohol in your breath appears to be a standard penalty in DUI cases.


I don't know squat about interlock devices, but it seems to have a pretty big flaw if it doesn't know who is blowing into it. Most of the time I go out to a bar, I'm with people I know. One sober person is enough to get a bunch of interlocks started.
1.2.2008 11:10pm
Eugene Volokh (www):
Richard A.: Can you point me, please, to the statistics showing that "Statistically SUV drivers cause more fatalities to innocent people than are caused by drunken drivers in cars"? Many thanks.
1.2.2008 11:13pm
FoolsMate:
The effectiveness of breathalzyer ignition interlocks is questionable as they are easily defeated with say, a $10 can of compressed air.
1.2.2008 11:13pm
Houston Lawyer:
The breathalyzer ignition interlocks are more sophisticated than most people realize. You have to blow into them every time you start your car. They don't just record when you are over the limit, they record every time you start your car. If you blow .04 at 8:00 am, you're going to have problems with the judge.

In the hood I see people on the street in motorized wheelchairs of various types. The government underwrites the cost of those things.
1.2.2008 11:27pm
Frater Plotter:
I'll also defend "drunk driving", at least as it is defined in many state laws.

"Drunk" is increasingly defined as "having any measurable alcohol in your breath". Under-21 drivers are cautioned in some jurisdictions that they would be in violation of the law if they drove after gargling with a mouthwash such as Scope or Listerine. Although this would not raise their actual BAC (or impair them), it would cause a Breathalyzer to indicate a BAC above the legal limit for under-21s. In some cases, having just eaten freshly-baked bread can achieve this level of alcohol on the breath.

The point of drunk-driving laws was originally to keep drivers off the road if they are impaired by drink. However, as Candy Lightner, the original founder of Mothers Against Drunk Driving (MADD), has documented, increasingly the impetus behind "drunk"-driving laws has been to discourage any drinking at all. They have become not about discouraging impaired driving, but about stigmatizing drinking.

Wikipedia article on MADD and Candy Lightner
1.2.2008 11:33pm
Mark H.:

I will. Not that driving drunk doesn't impair the driver, just that I could out-drive most sober drivers when I'm drunk.



DRWN, You've either brilliantly or inadvertently stumbled upon the real problem. A person that turns 21 and chugs down a six-pack in short order, is likely impaired beyond the ability to drive (or walk) safely; whereas a 31 year old with 10 years of drinking experience could toss that down with impunity and drive circles around that 21 year old even when sober.

What's really needed is a brainwave measurement device vs. a BAC detector as everyone is affected differently by alcohol; thus an arbitrary BAC limit is not reflective of real world abilities on an individual basis.
1.2.2008 11:33pm
Mike Keenan:
I read the following on wikipedia (on "Microcar"): "in some countries, microcars with a certain maximum weight are considered motorcycles and therefore no car driving licence is needed (Austria, France, Germany, Spain, Portugal, Italy). This assures a certain market for elder people who did not want to pass a car driving licence. More negatively, at least in Austria, such cars are sometimes derided as a solution for people who had their licence revoked because of drunk driving."

So, the idea seems to be that the license of a drunk has been revoked and they are reduced to driving a microcar.
1.2.2008 11:46pm
DeezRightWingNutz:
I wasn't kidding about the whole, "I'm not as think as you drunk I am" comment.

Here's a real world application:

I watch football at my parent's house across town on New Year's Day. I spend about seven hours there, and have four beers and a scotch (making me a binge drinker in some people's estimation).

Like many activities with negative externalities, drunk driving also has internalized costs that would at least discourage (maybe not sufficiently) the undesirable activity. Like many government policies, the unintended consequences of offsetting externalities are overlooked.

Finally, Bob Stoops in bowl games = teh suc
1.2.2008 11:48pm
Elliot123 (mail):
Regarding Scarlet Letter license plates:

"Are you going to require these license plates to be installed on every car registered to the offender?"

Yes.

"What about people who do not have any car registered to them, because they drive a car belonging to a family member?"

They could only drive a car with such a tag. If the owner refusd to allow such a tag, then the convicted wouldn't be able to drive it. If he wanted to drive, he would have to get a car and tag it in one of the rainbow of offensive colors.

"What about other people who use a car so registered?"

1)People would look at them in disgust and presume they were drunk drivers. 2) Fathers would not let their daughters near the teenaged son of a DD, 3) The teenaged daughter would not want to be seen in the car anyway, 4) non-DD drivers of the car would be inconvenienced by frequent police stops. The car they were driving would have the tag because it was either a)registered to the DD, or b)voluntarily tagged by another owner so the DD could drive it.

"If Joe gets a DUI, does that mean that his wife loses her job working the night shift because the family car gets tagged with one of your license plates?"

No. It means Joe can't be driving during prohibited hours. His wife can go to work, and she can drive. She would just be even more pissed at Joe because all her friends not only see her driving the family DrunkMobile, they also see her being stopped by the cops with her hair in rollers.

"And who exactly picks up their rebellious daughter when she ends up stuck across town in the middle of the night."

Anyone other than Joe. She probably doesn't have a boyfriend because of the social stigma attached to the family. So, I guess Ma gets to do it on the way back from the night shift.

Sorry if I gave the impression the car couldn't be out on the road at all. It can be on the road, just not with Joe careening from one median to the other.

But, I suppose Joe could just opt for losing his licence.
1.2.2008 11:53pm
pbundy (mail) (www):
New Year's Eve, I drove a friend home around 2AM. On my way back on the Interstate, I was following someone obviously drunk. I kept my own speed to around 40MPH, as I was afraid to get in front of this vehicle, or even try to pass it. The driver was literally weaving across 3 lanes of traffic.

It would appear to me that whether the driver had some extra-large monster or some teensy mini, he could still do a lot of damage to someone driving like that.

As for drinking and driving - I'd like to do what they do in many European nations: designated drivers when people go out.

Nothing like having had a friend get killed by a drunk driver to not worry too much if .08 is too low or not.
1.2.2008 11:53pm
Elliot123 (mail):
On a more serious note, one of the TV mags did a show a few years ago contrasting driving while drunk, sleep deprived, and talking on a cell phone.

First they took the sample set and had them drive a narrow and challenging closed course. All did well, but it obviously took attention and concentration.

Then they gave the subjects some number of drinks. I forget how many, but in interviews immediately after consumption, they did not appear at all impaired. They took to the wheel and ran over all sorts of things on the closed course.

Then they restricted sleep to five hours per day for five days. They drove, and the results were just like the drinking test.

Last, they let them rest normally for a few days and set them off on the course again. They called them on cellphones and asked distracting questions - square root of 2314, what's in the glove compartment, can they dial the radio to a hard rock station, get out their wallet and read their driver's license number, etc. Driving results were the same as when drinking.
1.3.2008 12:06am
Waldensian (mail):

Then they restricted sleep to five hours per day for five days. They drove, and the results were just like the drinking test.

I could totally ace that test. Some weeks, five hours a day for five days would be paradise.
1.3.2008 12:16am
Steve in CT:
In the spirit of today's style of governing, why not have taxpayer subsidized taxis outside every bar for those who need them?

What, not a popular idea here?
1.3.2008 12:19am
DeezRightWingNutz:

Nothing like having had a friend get killed by a drunk driver to not worry too much if .08 is too low or not.


This is exactly the problem. There are a bunch of emotional people who have experienced a tremendous loss who aren't necessarily advocating a position based on a well-thought-out, reasonable place, and a bunch of unsympathetic drunks on the other side. It's not hard to see why things get out of whack.
1.3.2008 12:19am
RGE (mail) (www):
Here in North Carolina you occasionally see grown men riding around on mopeds; the reason is that they have had their driver's licenses revoked for DUI, and thus ride the mopeds, which don't require licenses. These mopeds ridden by alcoholics are called liquorcycles (rhyme with pickle) by locals.
1.3.2008 12:46am
whit:
"What's really needed is a brainwave measurement device vs. a BAC detector as everyone is affected differently by alcohol; thus an arbitrary BAC limit is not reflective of real world abilities on an individual basis."

well, to some extent yes. but so what? the law can, and often is arbitrary. see for example, the deviations state to state in age of consent laws.

the stats do show that , in general, fatalities and collisions rise markedly as BAC rises. there certainly are some people who could drive better at a .08 than others could drive at a .000. but the law (at least in my state) does not criminalize "drunk driving". it criminalizes driving with a BAC of .08 or above OR driving impaired by liquor.

also, many states DO graduate penalties (and programs) based on the BAC level.
1.3.2008 12:57am
Agent00yak (mail):
There is a serious problem with all of the "Let's label the cars and induce public shame, vigilance or etc!" solutions. There are a large group of people who hate drunk drivers. A lot of these proposals stem from this fact. These conspicuously marked cars will be marked cars. Their cars will be vandalized much more frequently. Maybe this is what the people who propose these markings have in mind, but I'd like to give them the benefit of the doubt. The problem is somewhat similar to people getting sentenced to jail time but also ending up paying the penalty of being raped.
1.3.2008 1:08am
A.:
This idea is a great mixture of hysteria about drunk driving and puritan disrespect for privacy [especially when coupled with the Scarlet License Plates]. It's just another policy suggestion aimed at Concerned Citizens that purports to protect everyone while predominantly screwing poor folk. The harm from drunk driving is overblown, the benefit from this policy is dubious, the administrative costs are high and deeply regressive, and the vibe is repugnant.
1.3.2008 1:20am
whit:
when i worked in hawaii, which is a VERY liberal state fwiw, they did a similar shaming program.

people convicted of non-violent (generally) and relatively minor offenses were given an OPTION of standing on the side of the road for hours on end over various weekends, holding a sign "i was caught stealing" etc. vs. other penalties.

the general impression was that the program was a success on a # of levels.

the harm from drunk driving has been GREATLY reduced (the #'s are amazing). there are literally thousands of people alive today who would not be, if we had not gotten tougher on DUI's.

if there is one thing that is abundantly clear (every criminologist agrees etc.) about reducing drunk driving, it is that the perception of risk of getting caught is a MUCH more deterring factor, than increased penalties.

but it is also true that recidivism among drunk drivers is way too high.

i don't "hate" drunk drivers. i've had plenty of people i love/like caught drunk driving. i hate DRUNK DRIVING.

having a probationary license plate, etc. for drunk drivers seems a cost effective idea, possibly a good deterrent for other (potential) drunk drivers, etc.
1.3.2008 1:34am
M. Simon (mail) (www):
In Illinois the in car breathalyzer amounts to a $2,400 a year fine for the rest of your life.

Plus you have to puff on it every 10 minutes and sometimes they don't work well.

The suckers can be more dangerous than alcohol. They do provide a steady revenue stream.
1.3.2008 3:15am
M. Simon (mail) (www):
Elliot123,

I like your corruption of blood idea.

The sins of the fathers is a very good reason to punish all the family members.
1.3.2008 3:24am
European Visitor:
Mr Volokh, your friend may have been wrong. According to this Austrian government website (in German), the sanctions for drunk driving in Austria include fines, licence revocations, medical examinations and mandatory driver training. However, I cannot find a reference to drunk drivers being limited to small cars.
1.3.2008 4:06am
HPL (mail) (www):
Just a brief remark from Austria: it is not as simple as you may have heard. Yes, there are light vehicles which are often used by people who lost their drivers license because of drunk driving, and until a few years ago you did not need a license for these small vehicles. Nowadays, for driving these light vehicles, you have to take eight hours of theory lessons and six hours driving lessons at a driving school - obviously a lot more than you'd need in many US states to drive full size cars.

"Light Vehicle" by the way means very light: a maximum weight of 350 kilograms, maximum power 4 kW (or approx. 5,4 hp), maximum speed of 45 km/h (it is basically a moped on three or four wheels, see for instance Microcar, Aixam or Ligier).

And of course if you are caught driving a light vehicle when drunk you could also lose the right to use such vehicles.
And the "very small car" you linked to in your post is of course a regular car requiring a full drivers license here in Austria (as in the whole of the European Union).
1.3.2008 4:32am
pilight (mail) (www):
The problem with the multi-colored tags and limited vehicle choices is enforcement. I hate to tell you, but people who get their licenses suspended or revoked due to drunken driving rarely stop driving. They just drive without. Ask a cop and he'll tell you, 90% of those who get their licenses taken will drive home from the courthouse afterwards...
1.3.2008 9:15am
Aultimer:
Why bother with proxies, indirect penalties and removed (dis)incentives? My proposal for a direct and libertarianish position:

Let everyone buy and consume alcohol. When a person unsafely operates a motor vehicle, she loses the privilege to operate a motor vehicle. When a person causes harm by unsafely operating a motor vehicle, she suffers a loss of liberty commensurate with the harm, plus further loss if you think extraordinary criminal penalties deter crime.

Note that unsafe operation isn't tied to alcohol any more than to cell phone use or mere incompetence. QED.
1.3.2008 9:41am
Tom952 (mail):
I lean towards the Bus/Bicycle solution. The drunk can relocate his residence to enable him to get to and from work with his reduced liberties.

Some of the other solutions proposed have some merit but impose a burden of enforcement if implemented.
1.3.2008 10:23am
Tom952 (mail):

Here in North Carolina you occasionally see grown men riding around on mopeds; the reason is that they have had their driver's licenses revoked for DUI, and thus ride the mopeds, which don't require licenses. These mopeds ridden by alcoholics are called liquorcycles (rhyme with pickle) by locals.


OK - Bus / Bicycles / Liquorcycles.
In No helmet required, in deference to the Libertarians.
1.3.2008 10:35am
Tom952 (mail):

Here in North Carolina you occasionally see grown men riding around on mopeds; the reason is that they have had their driver's licenses revoked for DUI, and thus ride the mopeds, which don't require licenses. These mopeds ridden by alcoholics are called liquorcycles (rhyme with pickle) by locals.


OK - Bus / Bicycles / Liquorcycles.
No helmet required, in deference to the Libertarians.
1.3.2008 10:35am
Sid (mail) (www):
If only the law enforcement officials had some convenient, handy instrument that could be used immediately to ensure that offender was unable to ever operate a motor vehicle while impaired. Maybe something that could be carried on their belt. More efficient than a blunt force instrument such as a club or flashlight. Possibly something like a handgun.

No, I am not advocating that we kill all impaired motorists. We could just shoot off thier thumbs.

Now, without the sarcasm. Implementation and enforcement is a problem no matter what the penalty. Prof. Volokh (I believe) offers the compromise position that complete removal of the privilege of driving may not always be necessary and allwoing the driver to operate only very light vehicles could be a solution. There are several implementation issues: who purchases the vehicle, what vehicles, identifying eco-minded drivers vs. offenders, etc... And there are enforcement issues: stopping the offender from driving a vehicle larger than allowed, deciding where on the continuum to implement the sanction, etc...

I think that it is a noble idea that is inherently impractical. What is the penalty if an offender is caught driving sober in a vehicle that is larger than the class allowed by a previous penalty? Is that state subsidizing the purchase of the light vehicles? It just adds another maze of paperwork and legal debris that makes a bad problem more complicated.

If you get caught driving legally impaired, you should lose your license. Where I patroled in Germany in 1996, the penalty was lose of your license for one year on your first offense. The second offense was permanent lose. Seemed to work and be understood.
1.3.2008 10:35am
pete (mail) (www):

Note that unsafe operation isn't tied to alcohol any more than to cell phone use or mere incompetence.


But alcohol is tied to a lot more fatalities than cell phone usage. See table 2-25 on the following chart:

http://www.bts.gov/publications/ national_transportation_statistics/2002/pdf/entire.pdf

Of the 2001 driving fatalities (either the driver or pedestrian) of the 42,116 deaths 6% had BAC of .01-.07 and 35.5% had BAC over .08.

Interestingly the total number of auto fatlities has remained has remained pretty constantly around 42,000 annually since 1985, but the percent of alcohol related fatalities has dropped from around 53% of the total down to around 41%. I suspect the reason the total fatlities has not dropped is that there are more drivers who drive more on average.

I am a moderate drinker, but I was a volunteer drunk for one of the local police departments a few years ago since in Texas, according to the police officers at the station, in order for a police officer to administer sobriety tests they have to first practice on intoxicated people with BAC between .01 and .08 between .08 and .12 and over .12. They are supposed to be able to administer the different sobriety tests and make guesses as to who had how much to drink. They weighed us and measured out the alcohol and gave it out on a schedule. I did my duty to the comunity and was one of the ones over .12 and when one of the police officers asked if I thought I could drive home I honestly told him there was no way. I thought I might be passing some the tests, but when it came to walking the line and then turning around I failed every time.
1.3.2008 11:04am
J. F. Thomas (mail):
Why don't we give them Chevy Sububurbans but retrofit them with engines from 1968 VW bugs. That way they'll have a top speed of about 20 mph.
1.3.2008 11:09am
J. F. Thomas (mail):
"Statistically SUV drivers cause more fatalities to innocent people than are caused by drunken drivers in cars"?

I doubt this is true. SUVs (and pickups and minivans) are less safe than passenger cars because they are involved in more rollover accidents, the most likely type of accident to be fatal. Consequently, people who buy SUVs because they think they are "safer" are fooling themselves. They are actually more dangerous than even the smallest subcompacts.
1.3.2008 11:15am
RowerinVa (mail):
What an excellent post. Some of the comments are also very smart. What isn't a good comment, however, is the idea that breathalyzers can solve the problem. My short search on the Internet reveals numerous sources about tricking a breathalyzer, the simplest -- and very common -- being to have your passenger take it for you. In most news stories, it's a drunk man having his sober wife take the test. Yes, there are possible technological solutions such as Rube Goldberg thing that scans your eye at the same time you blow, but why go this far when the "drive a motorcycle" rule is so instantly easier to enforce? As to the comment about truck drivers, no, I don't have any sympathy for the truck drivers -- I'd absolutely support a per se ban on driving a GVW 10,000lb vehicle if the driver has a DUI in the past five years. Finally, I like the idea of forcing the drunks onto public transportation, but (a) I don't like the implied knock against public transportation and (b) more importantly, it's not practical in many situations because so many people don't live near public transportation, and judges aren't going to impose these penalties if they aren't practical. We need to balance our outrage with a sense of what we can actually expect the legal system to do. I'd like to see a pilot program about motorcycles (and only certain, low-performance models at that) and see if courts will go for it.
1.3.2008 11:26am
Laura S.:

http://www.bts.gov/publications/ national_transportation_statistics/2002/pdf/entire.pdf

Of the 2001 driving fatalities (either the driver or pedestrian) of the 42,116 deaths 6% had BAC of .01-.07 and 35.5% had BAC over .08.


What concerns me about these statistics is "base-rate neglect". A priori would should start thinking that 35.5% of night drivers have BAC over 0.08 not geez we should outlaw BAC over 0.08.
1.3.2008 11:44am
whit:
the NHTSA stats i was taught was that 1/7 of drivers between 10pm and 3am on a weekend night are BAC +.1

that's a "bit" less than 35%, and that's a higher bac AND it's weekends
1.3.2008 11:58am
whit:
the NHTSA stats i was taught was that 1/7 of drivers between 10pm and 3am on a weekend night are BAC +.1

that's a "bit" less than 35%, and that's a higher bac AND it's weekends
1.3.2008 11:58am
Aultimer:

pete:
But alcohol is tied to a lot more fatalities than cell phone usage. See table 2-25 on the following chart:

http://www.bts.gov/publications/ national_transportation_statistics/2002/pdf/entire.pdf

Not to be flippant, but the stats don't prove that.

They only show that of the dead, more had high BAC than low BAC. The fatalities may well have high BAC as a contributing factor, but you can't control for incompetence, etc. with that data.

So then why burden the unknown portion of citizens who drive quite safely with whatever BAC they might have and let the incompetent, distracted or whatever have more freedom?
1.3.2008 11:59am
whit:
"So then why burden the unknown portion of citizens who drive quite safely with whatever BAC they might have "

burden? it's a "burden" to drive without a BAC of >=.08?!

look, the BAC is (somewhat) arbitrarily set at .08 (although there is a fair amount of data on how judgment, coordination, divided attention, etc. start to deteriorate and accelerate around that level), but the point is that by setting a BRIGHT LINE rule like a .08 bac we largely eliminate the silly "burden" of having independent review of how each tom, dick, and harry operates AT a .08 etc. it would just be unworkable. it would greatly complicate trials, and makes no sense.

if it is too much of a "burden" to keep your BAC below .08 when you drive, even if you have the mad skillz to drive GREAT (as few do) at that level, then DON'T drive.

it is not a RIGHT. it's a privilege.
1.3.2008 12:09pm
Aultimer:

whit

if it is too much of a "burden" to keep your BAC below .08 when you drive, even if you have the mad skillz to drive GREAT (as few do) at that level, then DON'T drive.

It is a burden if the government says Mr. SkilledAlcoholic can't drive with BAC at .1, but Mrs. ChattySoccermom (or Mr. Octogenarian or Ms. DopeyTeen) can drive IF Mr. SkilledAlcoholic presents less of a risk on the road.

BAC might be a reasonable proxy for risk (and you can't know that it is without being god), but if you want the government to have the ability to take citizens liberty, you should want more than just a proxy that they've done something objectively wrong. After all, Driving While Black is a reasonable proxy for risk too, right?

I don't drive drunk, or even on cold medicine, mostly because I usually ride a motorcycle and stand to "lose" every accident I'm involved in. That doesn't mean I think everyone else should have to live by my rules, subject to government penalty.
1.3.2008 12:30pm
Aultimer:

whit:

silly "burden" of having independent review of how each tom, dick, and harry operates AT a .08 etc. it would just be unworkable. it would greatly complicate trials, and makes no sense.


Yes, because we should all live our lives to make life easier on the criminal justice system so it can more efficiently prosecute victimless drug "crimes" and speeding tickets. No thanks, Big Brother.
1.3.2008 12:33pm
Elmer:
The existing laws work well if enforced. Most laws don't work if not enforced. I've seen statistics that back up pilight's statement. Most people change their behavior after one DUI arrest. The rest keep driving no matter what, and most jurisdictions refuse to stop them.
1.3.2008 12:37pm
Adam J:
Aultimer- driving drunk isn't exactly my idea of a victimless crime, there's plently of people who end of the victims of drunk drivers.
1.3.2008 12:46pm
pete (mail) (www):

Not to be flippant, but the stats don't prove that.


Yes they do. Those stats go back to 1985. Cell phones were extremeley uncommon at that point and you have to have been drinking a lot to think that cell phones were a factor in half of the road fatlities in 1985.

If you want to point to more detailed statistics than the ones I posted, great, but so far there have been a lot of comments about how cell phones or incompentent drivers are just as bad as intoxicated drivers, but with no evidence at all other then people claiming they can drive just fine while intoxicated to back up the statements.
1.3.2008 12:59pm
David Chesler (mail) (www):
Seconding the notion that your just going to push people into driving without a license, hoping not to get caught, and figuring it's only a few days in jail anyway.

As for cell phone distraction, I can and have told folks on the other end "Hold, gotta drive now!" when things get hairy. (This is Boston, I did that twice just this morning, navigating a rotary and navigating the Big Dig.) The bigger impairment was when I switched to sunglasses (solar glare) and when I entered the tunnel wearing the sunglasses. You can put down a cell phone, it's harder to get instantly sober or alert. (No impossible - with effort or adrenaline you can concentrate for short bursts. And a short nap can do a lot for alertness.) (By the morning, I will be sober, but you will still be ugly.)

Dare I suggest that the problem is "Hung for a ram as hung for a lamb"? If we let kids (especially kids who don't have licenses) learn to drink, and propagate the idea that there can be responsible drinking, might things get better? In some ways the laws don't distinguish a bottle of beer from a case of beer, and don't distinguish either from softer or harder drugs.

I know the article mentions lesser punishments, but I'm still reminded of the kid looking at the "Wanted" poster and saying "Why didn't they just grab him while they were taking his picture?"
1.3.2008 1:01pm
Vivictius (mail):
They wont do more to discourage driving after having a couple drinks (which is NOT drunk driving) because the cities make far too much money off of it. If the rate of convictions drops they will simply reduce the BAC level to .07 or less.
1.3.2008 1:02pm
00stephen:
Two interesting and not uncoincidental things have happened in the crusade against drunk driving. The limit has been lowered to ridiculously low levels, and judges are way too lenient in sentencing first time offenders. I say raise the limit to something representing an unquestionably dangerous level, and throw the book at each and every one of those offenders caught over that level. No excuses, no pity, plea-bargaining, or changing the charges to reckless op.

I like the idea of an offender not being able to register anything but a sub-2000 lb car. Got a family or job that requires a truck? Then you better not drink and drive. I like the idea of mandatory "party plates" for all offenders, even first-timers. And I like the idea of issuing a special id/license prohibiting the sale of alcohol to that person for a period of, say, 4 years. Make the consquences of driving drunk unappealing enough, and people will go out of their way to avoid doing so. Right now it's just an inconvenience a violater can bargain your way out of if he has the right lawyer.

Raise the BAC limit to a serious level, and treat those who violate it seriously.
1.3.2008 1:06pm
whit:
"It is a burden if the government says Mr. SkilledAlcoholic can't drive with BAC at .1, but Mrs. ChattySoccermom (or Mr. Octogenarian or Ms. DopeyTeen) can drive IF Mr. SkilledAlcoholic presents less of a risk on the road.

BAC might be a reasonable proxy for risk (and you can't know that it is without being god),"

i know it is because i've read the data from NHTSA.

" but if you want the government to have the ability to take citizens liberty, you should want more than just a proxy that they've done something objectively wrong."

when it comes to a HIGHLY regulated privilege (which is not a right - such as DRIVING), that entails control of a deadly weapon, at high speeds - i don't think you do.

we are talking about a privilege. a privilege to operate an extremely deadly weapon, that can (and does) put everybody else at risk when you do so irresponsibly.

that's a pretty frigging compelling interest, and it is no incursion on any liberty (except the most libertine version of "liberty") to simply say - don't drive at a .08 BAC.

" After all, Driving While Black is a reasonable proxy for risk too, right? "

no. and i don't buy the myth of racial profiling either, but that's a topic for another day.

"I don't drive drunk, or even on cold medicine, mostly because I usually ride a motorcycle and stand to "lose" every accident I'm involved in. That doesn't mean I think everyone else should have to live by my rules, subject to government penalty."

they are not "your rules". they are society's rules, imposed by the legislature. im pretty frigging libertarian (drug legalization etc.) but when it comes to highly regulated PRIVILEGE like driving a deadly weapon in a public place- it is not an unreasonable incursion on "liberty" to prohibit driving with a BAC of .08. heck, we also require licenses and registration. those are at least as liberty restricting.
1.3.2008 1:18pm
whit:
"Two interesting and not uncoincidental things have happened in the crusade against drunk driving. The limit has been lowered to ridiculously low levels, "


except the data does not support .08 as being a ridiculously low level. have you READ the studies?

"and judges are way too lenient in sentencing first time offenders."

i have no problem with their leniency. first time should be (imo) probation etc. - which it is.

" I say raise the limit to something representing an unquestionably dangerous level,"

it's a matter of DEGREE. i would support, for example, making the penalties STIFFER for higher BAC's. note that many jurisdictions DO this.

i certainly think a .25 DUI (the highest i have arrested is a .464) should be a stiffer penalty than a .09
1.3.2008 1:21pm
Prufrock765 (mail):
My impression is that a number of people here do not understand what, say, a BAC of 0.10% means. An average person with average metabolism at an average length party would have to drink around a 12-pack to get to .10-.12. VERY few non-alcoholics (ie people with very high tolerances) can be trusted to operate a car at that level.
And most people in most places in this country do not have reasonable access to public transport.
Also bear in mind that it is possible to be "impaired" at, say, 0.06%. My state (and I am sure others) have two separate crimes--"driving while impaired", and "driving with a BAC over xxx" .
1.3.2008 1:21pm
whit:
"Yes, because we should all live our lives to make life easier on the criminal justice system so it can more efficiently prosecute victimless drug "crimes" and speeding tickets. No thanks, Big Brother."

nice irrelevant tangent.

im against prosecuting "drug crimes". how is that relevant?

if you think setting BAC levels at .08 = "big brother" you have an absurd conception of what big brother means.
1.3.2008 1:23pm
00stephen:
Sid asks:

I think that it is a noble idea that is inherently impractical. What is the penalty if an offender is caught driving sober in a vehicle that is larger than the class allowed by a previous penalty?
Impoundment of the vehicle, to be sold at state auction, with the wiolater/owner to receive the sale proceeds minus costs associated with the fine, impoundment, and auction fees.

Is that state subsidizing the purchase of the light vehicles?
Subsidize what? In 2005 I purchased a 1982 rabbit convertable for $127.50 off ebay, and drove it 900 miles home the following weekend. The following year I purchased a 1986 Yugo for $255, and drive it 1000 miles home. Neither car had mechanical issues preventing it from being driven, and both cars still run to this day.

It just adds another maze of paperwork and legal debris that makes a bad problem more complicated.
A maze?? No, it's not complicated or involve much excessive paperwork... at least not any moreso than the paperwork currently processed for current DUI convictions. The court already communicates with the BMV. Mark their license and registration as being prohibited from owning, registering, or operating a vehicle in excess of 2000 lbs. They'll have from the date of conviction to their next registration renewal date to sell the current ride and purchase a small car. Can't possibly be more paperwork than processing current work-only driving restrictions, SR-22's, "party plate" registration, and and processing in and out of weekend jail.
1.3.2008 1:29pm
whit:
"My impression is that a number of people here do not understand what, say, a BAC of 0.10% means. An average person with average metabolism at an average length party would have to drink around a 12-pack to get to .10-.12. VERY few non-alcoholics (ie people with very high tolerances) can be trusted to operate a car at that level.
And most people in most places in this country do not have reasonable access to public transport. "

most people think they are above average (cue: lake wobegon)

study after study shows that impairment BEGINS well below the .10 level. .10 was set as a reasonable standard, which is now .08 (and lower for commercial drivers).

we don't arrest "drunk" drivers (specifically) we arrest people IMPAIRED by liquor OR operating at/above a .08. it is true in many jurisdictions, that if you show significant impairment/poor driving, you can be prosecuted for DUI below .08. .08 is merely the presumptive level for impairment, as you noted.

people don't understand that impaired encompasses a host of physiological and psychological factors - decreased ability to divide attention, decreased inhibitions, decreased risk aversion, descreased depth perception, narrowed field of vision, decreased fine motor control, etc. etc. etc.

and again, ASSUME that the BAC level is (somewhat ) arbitrary.

So... what?

so is age of consent. when i used to live in hawaii, the age of consent was 14. in some states its 18.

that's ARBITRARY. it's also not an excuse for statutory rape.

the BAC of .08 is a heck of a lot less arbitrary than ages of consent since its based on studies with tons of data points (reaction time, skid pad performance, bla bla bla).

the law was never intended, nor should it, make infinite variations for individuals. there are FEW who can operate at a .10 as safely as others can at a .00. but even if YOU can (and you probably can't but think you can) ... so what?

i'm sorry that your "liberty" to drive a deadly weapon on public roadways is impaired by "big brother"

lol
1.3.2008 1:31pm
Elliot123 (mail):
"There are a large group of people who hate drunk drivers. A lot of these proposals stem from this fact. These conspicuously marked cars will be marked cars. Their cars will be vandalized much more frequently."

Well, there are lots of people who hate Hillary, Bush, Kerry, and honking for Jesus. Are the cars emblazoned with bumper stickers supporting these folks vandalized at a disproportionate rate? With an election looming this is vital information for Volvo owners for Hillary and pick-up drivers with NRA stickers.
1.3.2008 3:11pm
windycityatty:
My impression of big brother is warrantless roadside safety checks of hundreds of thousands of American motorists a yr without probable cause in order to raise revenue and find a few thousand drunk drivers/no license/no insurance drivers.

My impression of big brother is for a first time (non-crash no injuries) DUI offender in Illinois being forced to get an alcohol evaluation by a government/court approved "counselor" prior to getting any restored driving priveldges (judicial driving permit, restrict driving permits, etc...) and being forced, in many cases, to attend mandatory DUI awareness training and victim impact panels.

My impression of big brother is GPS / IPASS and "black box" technology monitoring where every car is, has been, and how long it took them to get from point A to point B whilst the black box is or could record every minute detail the driver made.

My impression of big brother is the false belief that raising the penalties for non-fatal non-crash DUI offenders is or will make anybody safer.

My impression of big brother is Per Se drugged driving laws (DUID) that criminalize the presence of any metabolite of any illegal drug no matter how long it has been in the driver's system.

My impression of big brother is the loss of the 5th amendment priveledge to avoid self-incrimination by the fact that license suspension penalties are higher if you refuse a roadside sobriety test (6months) as opposed to taking the test and failing and getting 3 months suspension (1st offenders). Yes, Big Brother enjoys coercing evidence despeately needed to convict you.

My impression of big brother is the mandatory evidentiary assumption in a DUI criminal case that the breathylzyer machine you is de facto accurate and that every cop who took some training course on traffic stops is an expert on detecting anything.

My impression of big brother...is a libertarian-leaning blog (with a few notable exceptions) enthusiastically embracing more social control, regulation, surveillance and monitoring of a supposedly "free" people.

Yes, drunk driving is serious. I have lost two friends and fraternity brothers of mine in less than 1.5 yrs in alcohol related car crashes. Perhaps the sickest part of one, which happened here in Chicago and was a single car crash with only the driver hurt, is the fact that when i went to the hospital to visit my friend and say a final goodbye - while he lay in a coma from massive head trauma with machines the only thing keeping him alive, with friends and family in large numbers in the waiting area, as two uniformed police stood guard outside the hospital room in case he awoke from his coma so they could place him under arrest for DUI.

Need I go on?
1.3.2008 3:17pm
windycityatty:
Ughh- sorry for typos - i was writing quickly and off the cuff - but there is more i could have added if there were more time. Ill save my rant for another day.
1.3.2008 3:18pm
Elliot123 (mail):
"I like your corruption of blood idea.

The sins of the fathers is a very good reason to punish all the family members."


Well, let's do a 360 and wipe out the idea. Consider the children of all those folks in prison. Deprived of support, they slide from the hope of a bright future into an abyss of povety, degradation, and squalor. Sounds an awful lot like we as a society eliminate the breadwinner, and don't give a hoot about who he has been feeding.

Then there are the family members of the drunk driver who are deprived of a future when someone injured by the DD sues and wipes out the college fund.

And let's not forget the daughter stranded on the bad side of town and daddy can't come get her because the judge has revoked his license.

This sounds like our society has an entrenched notion that guilt flows through blood. But, I like the phrase "corruption of blood." Maybe a bumper sticker?
1.3.2008 3:22pm
Clayton E. Cramer (mail) (www):
Mark the day: I agree with Cornellian. DUI convicts limited to driving motorcycles for a year. If you really need a motor vehicle to get to work, a motorcycle works. If you make a habit of driving drunk on a motorcycle, I suspect that you won't get a chance to repeat the offense.
1.3.2008 3:32pm
Aultimer:

pete: Yes they do. Those stats go back to 1985. Cell phones were extremeley uncommon at that point and you have to have been drinking a lot to think that cell phones were a factor in half of the road fatlities in 1985.

You don't have any data about competence or other distractions, nor any information about cell phone use in that data - just a fairly consistent half of fatalities including a BAC > .08. It could well be the case that cell phones are a significant factor in the same incidents that involve high BAC, or in the other sizable portion.

me:BAC might be a reasonable proxy for risk (and you can't know that it is without being god),"

whit: i know it is because i've read the data from NHTSA.

The data from NHTSA only shows the incidence of high BAC in fatalities. It can't indentify other risky behaviors or highly correlated factors (like being depressed, chatty, marginally skillful etc.) in those incidents, nor can it identify the likelihood of any particular harm.

Adam J: driving drunk isn't exactly my idea of a victimless crime, there's plently of people who end of the victims of drunk drivers.

You mean CRASHING as a result of being drunk, which is very different than driving when "legally drunk" (which I still think is victimless).

whit:
if you think setting BAC levels at .08 = "big brother" you have an absurd conception of what big brother means.

You misread - I think it's Orwellian to define harmless behaviors as criminal for the convenience of police and the courts - especially when there are seemingly adequate criminal and civil compulsions to avoid harming others and their property whether sober or drunk. As I indicated above, I have no problem with criminalizing behavior that causes harm, or even creating penalties for behaving unsafely. Criminalizing actions that create a risk of behaving unsafely gets too close to thoughcrime for me. Can't the government restrain itself until there's actual unsafe (not even harmful) behavior, like driving badly, to leap into action?

whit:
nice irrelevant tangent.

I thought it relevant to your argument that government convenience is a good justification for criminalizing harmless behavior. That is, perhaps the government wouldn't require such conveniences if it had fewer priorities that involve, oh, criminalizing harmless behavior.
1.3.2008 3:40pm
Prufrock765 (mail):
Aultimer:
I don't get your point.
There is no occasion for an officer to stop a car unless the driver is operating erratically (weaving, failure to maintain speed, etc) or wierdly (stopped in the intersection, or wrecked).
Therefore all (or 99% of) DUI arrests start from an event of "bad driving" caused, presumptively, by the impairment.

So where is the "Orwellian" aspect to this?
1.3.2008 4:24pm
Laura S.:

Aultimer- driving drunk isn't exactly my idea of a victimless crime, there's plently of people who end of the victims of drunk drivers.


In parody: giving birth to a male child isn't exactly my idea of a victimless crime, there's plenty of people who end up as victims of male children.

Seriously: what we're talking about is a victimless crime by definition. Its liability for a potential but unrealized damage. If you aren't willing to concede the definitional point, than that suggests a bit of doublethink on your part.

Hint: even if DUI is victimless you might still support its enforcement, but to be arguing in good faith you ought to concede that most DUI convictions are victimless offenses.

If there is a victim &intoxication, that's definitely a heightened offense in my book. Indeed, the law is manslaughter and intoxication provides the mens rea, per se.
1.3.2008 4:31pm
Aultimer:

pete: If you want to point to more detailed statistics than the ones I posted, great, but so far there have been a lot of comments about how cell phones or incompentent drivers are just as bad as intoxicated drivers, but with no evidence at all other then people claiming they can drive just fine while intoxicated to back up the statements.

No stats, but studies showing that cellies are "bad".

Also, I never claimed to drive fine while intoxicated, nor do I think I would drive as well with a BAC of .08 as with a BAC of 0 - and I have no intention of testing the theory. In fact, I'm not trying to spin the law to gore any particular oxen, just advocating for limited government.
1.3.2008 4:31pm
Aultimer:

Aultimer:

There is no occasion for an officer to stop a car unless the driver is operating erratically (weaving, failure to maintain speed, etc) or wierdly (stopped in the intersection, or wrecked).
Therefore all (or 99% of) DUI arrests start from an event of "bad driving" caused, presumptively, by the impairment.

If that were true, I'd agree with you. Maybe whit knows something about how practice varies, but sobriety checkpoints and other BAC-limit enforcement techniques are common here. I've witnessed a particular convenience store's clerk reporting the smell of alcohol on various customers to an officer in the store, which invariable resulted in a stop. In contrast, I've never seen a cell-talking driver stopped in the presence of a cruiser, despite exhibiting extraordinarily dangerous behavior. I did see a really stern police-finger-wag at a cell-talker once.
1.3.2008 4:43pm
Tom952 (mail):
OK, no more anecdotes.
1.3.2008 4:56pm
RowerinVa (mail):
windycityatty:

Exactly what do you think "libertarian" means? What is anti-libertarian about imposing punishment for a crime that disproportionately kills other people and destroys their property (imposes externalities), or stating that since existing punishments don't seem to deter sufficiently, those punishments need to be increased? Granted, your post makes sense if you don't think DUI should be a crime at all, or if you think that DUI is an antisocial behavior that is better dealt with extrajudicially (e.g., self-help or vigilante action), but if so, you need to elaborate upon and separately defend that view.

You also need to re-read the original post. Volokh didn't endorse ex ante surveillance. He suggested an ex post consequence.
1.3.2008 5:02pm
Clayton E. Cramer (mail) (www):
Aultimer writes:

Note that unsafe operation isn't tied to alcohol any more than to cell phone use or mere incompetence.
This would be an interesting claim worthy of serious consideration had I never watched drunks demonstrating their failures of coordination while throwing punches, missing the big hole that we call a doorway, and similar matters where alcohol rapidly destroys a person's ability to do almost anything that involves muscular control. There's a reason that alcohol consumption is highly correlated with industrial accidents, as well as drunk driving accidents.

Does Aultimer seriously think that people with .08% BAC aren't disproportionately incompetent to drive cars? This is a position that only a hopeless ideologue could adopt.
1.3.2008 5:23pm
David Chesler (mail) (www):
Aultimer, there is a big difference between a crime which has no victim but the soul of the perpetrator, what we usually call a victimless crime, and various forms of illegally reckless behavior.

You could have a system that discourages reckless behavior only through torts:

If one person's ox injures the ox of another person, and it dies, they shall sell the live ox and divide the money received for it. They shall also divide the dead animal.

However, if the ox was known to be in the habit of goring on previous occasions, and its owner did not take precautions, then he must pay the full value of [the dead] ox. The dead animal remains the property of [its owner].


I rant a lot in favor of civil liberties (to the point where I hereby ask whit what he means by privilege and right when he says
when it comes to a HIGHLY regulated privilege (which is not a right - such as DRIVING),
but I don't have a problem with highly reckless behavior being criminalized even if there has not yet been a victim (for a sufficiently high value of highly.)
1.3.2008 5:32pm
Clayton E. Cramer (mail) (www):
Aultimer writes:

You don't have any data about competence or other distractions, nor any information about cell phone use in that data - just a fairly consistent half of fatalities including a BAC > .08. It could well be the case that cell phones are a significant factor in the same incidents that involve high BAC, or in the other sizable portion.
The earliest studies that I read about alcohol involvement in fatal accidents were conducted in the early 1980s--when cell phones were, shall we say, somewhat scarcer than today. Perhaps drunks were especially likely to have cell phones back then.

Aultimer's position is so bizarre that I can't believe he seriously believes it. I agree that there are other factors that impair driving abilities besides alcohol and other intoxicants. But when the correlation of fatalities and drunk driving is as high as it is, there's a pretty strong burden of proof to establish that this correlation is simply coincidental.

I've had one scary occasion when I drove a short distance at a .01%-.02% BAC level--then stopped the car and waited for my liver to finish metabolizing the champagne. That anyone would argue that anyone but severe alcoholics could drive safely at even .04% is right up there with flat Earth theory.

One other difference between cell phones and alcohol. Most people driving while distracted seem to figure out after a near miss that they are doing something really, really stupid. As soon as you hang up the phone, you are capable of driving again. Unfortunately, because alcohol is an inhibition reducer, close calls don't seem to get drunk drivers to pull over to the side of the road.
1.3.2008 5:36pm
Clayton E. Cramer (mail) (www):
David Chesler writes:

Aultimer, there is a big difference between a crime which has no victim but the soul of the perpetrator, what we usually call a victimless crime, and various forms of illegally reckless behavior.
There's actually less difference than you think. Much of the justification for drug laws is that intoxicated people disproportionately do incredibly stupid things, like murder, rape, robbery, child molestation, burglary. (One of my wife's classmates walked in on two heroin addicts who were burglarizing the house while high. They beat the kid to death with a roofing hammer. Closed casket.) Not every intoxicated person does these things, just like not every drunk driver hits someone, but in both cases, there is a disproportionate involvement of one in the other.

What really separates drunk driving from simple drug possession and use is the matter of being on a public road. If you were driving drunk on your own property, it would be stupid, but hardly in the same category as driving drunk on a public road.
1.3.2008 5:41pm
Adam J:
Laura S.- Under your logic attempted murder and other attempted crimes are victimless crimes, so long as no one is injured. Drunk driving (and attempted murder) significantly threaten the rights of innocent parties, and hence are not generally considered victimless crimes. Simply because the threat doesn't result in harm doesn't make it a "victimless crime". Victimless crimes typically refer to drug &sex crimes where no one is endangered, or the people endangering themselves do so consensually and hence are not innocent victims.
1.3.2008 5:46pm
Clayton E. Cramer (mail) (www):

Victimless crimes typically refer to drug &sex crimes where no one is endangered, or the people endangering themselves do so consensually and hence are not innocent victims.
Or, where the actions of the criminal have an indirect risk to others that might not have been apparent to those who associated with the criminal. For example, part of why syphilis was a mandatory reporting crime for many years (probably still is?) was that there was no cure for it, and it led to severe damage, including death by syphilitic insanity. (That wasn't rare, either. About 16% of mental hospital patients in the 1930s were there for that reason.)
1.3.2008 5:51pm
David Chesler (mail) (www):
In contrast, I've never seen a cell-talking driver stopped in the presence of a cruiser, despite exhibiting extraordinarily dangerous behavior.

I'm told that in New York, where drivers may not use a cell phone, tickets have been issued.
1.3.2008 5:59pm
David Chesler (mail) (www):
It was illegal to have syphillis?
1.3.2008 6:03pm
whit:
"My impression of big brother is the mandatory evidentiary assumption in a DUI criminal case that the breathylzyer machine you is de facto accurate and that every cop who took some training course on traffic stops is an expert on detecting anything. "

first of all, i have testified as an expert witness . but im not "every cop". i have NEVER (arrested several hundred DUI's) seen somebody with 6 cues of nysagmus and who "blew" who did not blow @ or over the presumptive limit

but here's the reality. few things are more disturbing than when people who are innocent and get arrested. even worse is when people are innocent (ie they didn't do it) and get convicted. the fact is - victims lie, witnesses lie, coincidences happen, etc. etc. that sucks.

but in DUI's the breathalyzer is the innocent man's BEST FRIEND. because it does not lie . it is accurate. and unlike witnesses, "victims" (see: duke rape case, etc) it has no agenda, no reason to lie. it protects the INNOCENT. and convicts the guilty. that's a good thing.

if you have a problem with the accuracy of breathalyzers, there is another failsafe. every arrestee in my jurisdiction, has the RIGHT to a test of their own. iow, i will drive them to the hospital for them to get their OWN blood draw. if you distrust the breathalyzer, you have the right to an alternative test. out of hundreds of arrests, exactly ZERO people ever requested that. why? because they KNEW the breathalyzer doesn't lie.

all your rhetoric aside, driving is a privilege not a right, it is highly regulated, and it necessarily involves extremely dangerous weapons being propelled through space-time and is among the top causes of death and injury in the country.

aggressive DUI enforcement has saved literally thousands of lives.

fwiw, random road sobriety checkpoints are illegal in my state anyway, so i won't even address that.

reality is - i KNOW that people get arrested (and even convicted) all the time based on rubbish evidence, lying witnesses, bad coincidences, etc.

DUI is about the ONLY exception. if you are NOT a .08 or above there is no greater friend to proclaim your innocence than the breathalyzer. of course, defense attorneys aren't interested (it's not their job) in justice or the truth about what actually happened. their job is to (within the bounds of the law hopefully) get their clients off whether they are in fact guilty or not. thus, you attack about the only instrument (breathalyzer) that is a TRUE friend of the innocent - falsely accused.

i've been pulled over several times. i even took the field sobriety tests once. i passed. because i was innocent. regardless, if i HAD been arrested, i KNOW that the BT would have proved my innocence. so, this rubbish about big brother is absurd.
1.3.2008 6:40pm
whit:
"Laura S.- Under your logic attempted murder and other attempted crimes are victimless crimes, so long as no one is injured. Drunk driving (and attempted murder) significantly threaten the rights of innocent parties, and hence are not generally considered victimless crimes. Simply because the threat doesn't result in harm doesn't make it a "victimless crime". Victimless crimes typically refer to drug &sex crimes where no one is endangered, or the people endangering themselves do so consensually and hence are not innocent victims."

i totally agree. im libertarian. i think law, and govt. is at its worst when it tries to protect us from ourselves and our bad choices - drug laws, etc. iow, we should be free to make bad choices without nannystate intervention, and we should be held responsible for our actions- not our thoughts (see: hate crimes, hate speech, etc.). if some guy wants to smoke bud, eat cheezy poofs and laff at dumb jokes - whether or not it's a "good thing" is irrelevant. it's not GOVERNMENT's BUSINESS.

govt. most definitely has an obligation to protect innocents from OTHERS. DUI is no more a victimless crime than any inchoate crime (attempted murder for example), or crimes like reckless that didn't result in injury. the point is that they put the public at substantial RISK of injury.

calling dui a "victimless" crime is absurd. it also twists the meaning of libertarianism to claim that it's "big brother" to want to help prevent DUI's, prosecute offenders, and detect offenders. driving is not mentioned in the constitution. it's a privilege, not a right, and govt. has the obligation to regulate it heavily due to the incredible dangers associated with it.

i want govt. out of the bedroom, the bloodstream, the lungs (stupid smoking laws), etc. i most definitely want govt. patrolling the roadways protecting ALL of us from the reckless, the careless, and the drunk
1.3.2008 6:46pm
whit:
" rant a lot in favor of civil liberties (to the point where I hereby ask whit what he means by privilege and right when he says
when it comes to a HIGHLY regulated privilege (which is not a right - such as DRIVING), "


simple. bearing arms is a right. free speech is a right. etc.

driving is not.

what that means is that laws REGULATING rights are subject to a greater standard vs. laws that regulate privileges. and when a privilege (like driving) involves the propulsion of dangerous weapons through space-time, and is clearly demonstrated as a dangerous activity, the regulation is all the more justifiable.

we require driver's licenses. registrations. safety bumpers. safety lights (headlights, taillights, brake lights), blah blah blah. these, like most govt. regulation imposes COSTS. but they are justified. does anybody think govt. shouldn't require licenses, that cars meet minimum safety standards, that there be laws criminalizing reckless driving, etc?

of course not

driving is thus HIGHLY regulated.

contrast with speech. you don't need (nor should you) a permit to walk down a sidewalk and proclaim that bush is a crook, that kucinich has big ears, etc. you are free to create your own newspaper, blog, etc. promoting your viewpoints. you are free to circulate petitions, etc.

frankly, i think sometimes govt. goes too far in regulating speech (they certainly do on public college campuses -see speech codes... and frequently get overturned)

but we are talking DRIVING. it's not a RIGHT. it's a privilege.

the rules are legion, the penalties can be stiff, etc. TOUGH.
1.3.2008 6:59pm
michael (mail) (www):
I am sympathetic to the the suggestion of the Professor in his blogpost. I don't know if he was thinking of the recent killing of an innocent person by the former baseball star Leyritz (?sp). Leyritz was driving an SUV and ran a stop light, killing someone in a smaller vehicle. Apparently, Leyritz was significantly intoxicated and had been arrested, but not been to trial, about 3 months ago for an intoxication offense. Were Leyritz driving a motorcycle he would probable have killed himself which is what happened when somebody on a motorcycle ran into a coworker in an old VW bug at a stop sign. Given that DWI is an offense oft repeated (not that a lot of people don't only drink at home after getting one), quicker adjudication might have been helpful as well. It would be good if people in places with public drinking have experience with breathalyzers; you can buy your own for $80. Maybe Bud Light could make a comeback contra Miller by incorporating this in their ads. Perhaps there is a 'conspiracy of ignorance' in not having this rationally included in places that have a liquor license. I would be intersted in what legal theories the Professor might have that might 'correct' this.
1.3.2008 7:36pm
hattio1:
Whit,
Generally I'm agreeing with some of the things you say. A couple of exceptions. It's true that a breathalyzer is a great thing at separating out the guilty from the innocent. But, that's only because in most states the "guilty" are defined as those over .08 or impaired not over .08 and impaired. But, I don't really have a problem with that. There has to be a way to separate impaired from not impaired, and I definitely don't want it to all rest on officers.
However, in my jurisdiction, and in most jurisdictions, as I said, the standard is over .08 or impaired. As a practical matter, in my jurisdiction, that means that if you are pulled over and anywhere near .08 (like anything over .06) you are gonna get charged. I understand that's not the case in most jurisdictions.
Finally, to respond to prufrock. People are pulled over all the time who didn't do anything suspicious. Try it some weekend. On a Friday drive around near 2 or whenever bars are mandated to close in your area.
1.3.2008 7:44pm
whit:
"But, that's only because in most states the "guilty" are defined as those over .08 or impaired not over .08 and impaired. But, I don't really have a problem with that. There has to be a way to separate impaired from not impaired, and I definitely don't want it to all rest on officers. "

correct. i mentioned that arlier. in my jurisdiction , it is illegal to drive w/a BAC of .08 or above - REGARDLESS of impairment. it is true some activist judges don't agree with that law, and want to see 'drunk' behavior, etc. but the law is clear. it's EITHER impairment OR .08 (or both).

that's a bright line. there's no subjectivity to the .08, but there is a degree of arbitrariness. and again, i say so what? less arbitrary than the drinking age itself, or the age of consent (im against the 21 yoa drinking age fwiw).
1.3.2008 8:08pm
whit:
"But, that's only because in most states the "guilty" are defined as those over .08 or impaired not over .08 and impaired. But, I don't really have a problem with that. There has to be a way to separate impaired from not impaired, and I definitely don't want it to all rest on officers. "

correct. i mentioned that arlier. in my jurisdiction , it is illegal to drive w/a BAC of .08 or above - REGARDLESS of impairment. it is true some activist judges don't agree with that law, and want to see 'drunk' behavior, etc. but the law is clear. it's EITHER impairment OR .08 (or both).

that's a bright line. there's no subjectivity to the .08, but there is a degree of arbitrariness. and again, i say so what? less arbitrary than the drinking age itself, or the age of consent (im against the 21 yoa drinking age fwiw).
1.3.2008 8:08pm
hattio1:
Whit,
Just FYI, in my jurisdiction and others the law states you can't be impaired and the rebuttable presumption is over .08 and you are impaired. I support this, as the times a defense attorney is going to be able to successfully defend someone who is over .08 are few. Pretty much has to be a fairly large person.
1.3.2008 8:23pm
David Chesler (mail) (www):
Whit: What I hear you saying is that we can tell that driving is a privilege and not a right because it is highly regulated. And since it is a privilege it may be infringed upon with a lower standard of justification.

driving is thus HIGHLY regulated.

contrast with speech. you don't need (nor should you) a permit to walk down a sidewalk and proclaim


FWIW, you need plenty of permits, issued at the discretion of unelected officials, to walk down the sidewalk and carry a gun. What does that tell us about the privilege to keep and bear arms?

I don't get it. But then I'm one of those fanatics who thinks driving is protected by the 10th Amendment.

does anybody think govt. shouldn't require licenses,

I don't think the government, most especially the federal government, has the authority to require licenses. (I do realize that that ship has sailed.)

that cars meet minimum safety standards,

I'm willing to let buyers choose

that there be laws criminalizing reckless driving

Reckless driving is not prior restraint.
1.3.2008 8:29pm
David Chesler (mail) (www):
And I like the idea of issuing a special id/license prohibiting the sale of alcohol to that person for a period of, say, 4 years. Make the consquences of driving drunk unappealing enough, and people will go out of their way to avoid doing so.

Why stop there? The existing mechanisms make it easy to prohibit them from buying cigarettes and take away their library cards. You could double their income and sales tax.

If drinking and driving is so bad, why do you need a driver's license to buy alcohol?

I recently picked up some medication and the pharmacist wanted a photo ID. I handed her one that I'd received after fingerprints and a criminal background check, but she said that wouldn't do, because she only knew how to write down the numbers on a driver's license. (Next time I'll have a copy of the law that references the 8 CFR § 274a 2(b)(1)(v)(A) or (B), which is just the list on the back of an I-9 [the form that makes it impossible for illegal aliens to work] including an expired passport.)

And apparently the requirement to show ID to buy Sudafed, "The Combat Methamphetamine Epidemic Act of 2005" really is part of the USAPATRIOT Act (the improvement and reauthorization part, but the bit on the mandatory sign saying how Title 18 section 1001 [or Title 19 as the sign in Target says] makes fake entries in the logbook punishable by a quarter million dollar fine is just the general on false statements.)
1.3.2008 8:43pm
Public_Defender (mail):
One finger for the first offense.

Two fingers for the second offense.

Three fingers for the third offense.

Four fingers for the fourth offense.

And you really don't want a fifth offense.
1.3.2008 9:58pm
Jon Rowe (mail) (www):

My impression is that a number of people here do not understand what, say, a BAC of 0.10% means. An average person with average metabolism at an average length party would have to drink around a 12-pack to get to .10-.12.


This is way wrong. An average person might need drink around 5 beers over a few hour period to get a .10.

If you drive to a bar or party, anyone who continues after drink #3 is risking DUI in my opinion.
1.3.2008 10:14pm
whit:
"Just FYI, in my jurisdiction and others the law states you can't be impaired and the rebuttable presumption is over .08 and you are impaired. I support this, as the times a defense attorney is going to be able to successfully defend someone who is over .08 are few. Pretty much has to be a fairly large person."

in my jurisdiction, it is illegal to be a .08 and drive PERIOD. it is PRESUMPTIVE (but not conclusive that you were impaired), but those are two seperate issues.

you can very well NOT be impaired and be a .08. but it is still illegal in WA state to drive at a .08 regardless.

other jurisdictions may (and do ) differ.
1.3.2008 10:21pm
whit:
"Whit: What I hear you saying is that we can tell that driving is a privilege and not a right because it is highly regulated. And since it is a privilege it may be infringed upon with a lower standard of justification. "

no. i am not saying that. i am saying it is a highly regulated privilege. i am not saying that the fact that it is highly regulated PROVES that it is a privilege.

i am saying that things that are not constitutionally protected rights DO require a lower standard of justification to regulate vs. things that are. classic example being speech vs driving.

"FWIW, you need plenty of permits, issued at the discretion of unelected officials, to walk down the sidewalk and carry a gun. What does that tell us about the privilege to keep and bear arms? "

not in my jurisdiction ... (open carry requires no permitting).

but i already think many gun regulations ARE unconstitutional so you got no argument from me. bearing arms is a right.
1.3.2008 10:30pm
whit:
"If drinking and driving is so bad, why do you need a driver's license to buy alcohol? "

please show me one law that requires a driver's license to purchase alcohol.

lol
1.3.2008 10:32pm
Jon Rowe (mail) (www):
Honestly I think driving should be a "right." Given the importance of driving (i.e., getting to work) in some people's lives.
1.3.2008 10:34pm
Sid (mail) (www):
00stephen,

Rudy tried impounded vehicles in NYC. Even the less-dramatic depictions of the proposal were comparisons of 1984, Hitler, Big Brother, Gestapo, KGB, Totalitarianism, etc...

I believe your faith in a simple bureaucratic function to be unfounded. I do not have faith in a state government impounding and auctioning vehicles as a mechanism. Imagine just a few of the variables and the outcry of the various players. Think quickly how easy the opposition to the proposal can twist vehicle value and ownership. They are just impounding poor individuals' cars. They are just impounding cars of African-Americans. They are impounding expensive cars for the kick-backs. They are impounded my brother's worthless truck and he just went out and bought another worthless truck for his work.

I agree with the idea, but I am not convinced it would be practical to implement.
1.3.2008 10:50pm
David Chesler (mail) (www):
You can't buy liquor without a willing seller. Seller's consider the home-state license to be a safe harbor. I can show you a sign that says "A Massachusetts license is the only acceptable form of ID here".

Some states issue non-driver IDs or driver's licenses for, for example, the legally blind, restricted to not permit driving, but for identification only.

Although my state does issue Liquor IDs, not all sellers of liquor accept it.
1.3.2008 10:58pm
John R. Mayne (mail):
Frater Plotter:



"Drunk" is increasingly defined as "having any measurable alcohol in your breath". Under-21 drivers are cautioned in some jurisdictions that they would be in violation of the law if they drove after gargling with a mouthwash such as Scope or Listerine. Although this would not raise their actual BAC (or impair them), it would cause a Breathalyzer to indicate a BAC above the legal limit for under-21s. In some cases, having just eaten freshly-baked bread can achieve this level of alcohol on the breath.



Um, what? "Drunk" or "under the influence" is not defined as "any measurable amount of alcohol" in any jurisdiction I am aware of. Could you provide the basis for this claim?

In California, Title 17 requires a 15-minute waiting period for breath tests; even a five-minute waiting period will wipe out most or all mouth alcohol, and a ten-minute period will wipe out all mouth alcohol.

Jon Rowe:



This is way wrong. An average person might need drink around 5 beers over a few hour period to get a .10.



A 170-pound man will have his blood alcohol rise by about .02% per beer, and burn off at .02% per hour. Three hours, five beers, that's .04%. Unlike Clayton Cramer, I don't have a problem with people driving at .04%, though I myself won't.

But for that guy to get to a .10%, he'll need to have about six beers in a little under an hour. That's safe? Five in an hour is .08%. I can hold my alcohol very well, and I'd probably get home safely at a .08%.... but that'd be a pretty significant chance of a catastrophic outcome. .08% is too much alcohol to be driving, according to me and a number of drinking studies.

On the issue in our host's post, the key part to any driving restriction is enforcement. In my jurisdiction, virtually every single person who is required to either get the ignition interlock device or transfer their car transfers their car. Many of those sales are to family members.

I think there is a rational basis for a small-car rule; people with lengthy suspensions who come back on restricted licenses might well be wisely limited to small cars. The question is whether the enforcement mechanisms would work. There are issues with what you do when Mr. Recidivist is driving his buddy's car; if you want to impound all cars, you'll really need to stamp those licenses with "Small car only."

I think the details would derail this plan. But it's interesting.

--JRM
1.4.2008 12:47am
Aultimer:

whit: i've been pulled over several times. i even took the field sobriety tests once. i passed. because i was innocent. regardless, if i HAD been arrested, i KNOW that the BT would have proved my innocence. so, this rubbish about big brother is absurd.


Thanks for illustrating the real problem. You drove so poorly or dangerously on several occasions that police officers stopped you to investigate why. You weren't drunk - so what?

Why isn't your poor/dangerous driving as deserving of punishment as if you'd had BAC > .08?

Because on those several events were one-time causes? Then it's odd that it's happend to you several times.

Because you were talking with a passenger, yapping on the phone or just have a generally bad/dangerous driving style? Then why is that less likely to be an ongoing factor that results in injury to others than if you had high BAC?

To be clear - unsafe driving should be regulated, all this "rubbish" about convenient safety statistics and easily proven criminal liability is "absurd."

Clayton Cramer - Two things. Correlation <> causation, no matter how much you want the numbers to validate your worldview. I never said cell phones are a sole cause either - the fact that cell phone use increased over the period of the study doesn't change anything about what the numbers prove.
1.4.2008 9:37am
Prufrock765 (mail):
Thanks for the stat Mayne.
That is exactly the math I was using. 0.02% per drink, and you burn one drink an hour.
I have been both a prosecutor and a defense atty (now I am neither). I have been stopped 2x (both times the stop was justified--I had been drinking and it was late and my driving was not the best) and field tested. I was not found to be impaired though. Both times I was allowed to drive home.
I agree with the comments of Whit, Clayton Cramer and Mayne.
If all cops were as intelligent and articulate as Whit, the world would be a better place.
1.4.2008 9:41am
Clayton E. Cramer (mail) (www):

It was illegal to have syphillis?
My mistake in using the word "crime." There was a requirement that doctors report syphilis so that it could tracked.
1.4.2008 10:49am
Clayton E. Cramer (mail) (www):

One finger for the first offense.

Two fingers for the second offense.

Three fingers for the third offense.

Four fingers for the fourth offense.

And you really don't want a fifth offense.
Unfortunately, many of the repeat offenders can't stop. I read about a guy a few years ago in Sonoma County who was being charged with second degree murder for a DUI-involved death. Why second degree murder? He had something like 17 previous DUI convictions (some involving accidents), going back over a couple of decades. The claim was that he had shown a reckless disregard for the lives of others. I don't know if the courts upheld that (which seems like a serious stretch to me, but I'm not a lawyer), but there are people whose alcohol problems are so severe that nothing but locking them up in prison will stop them.
1.4.2008 10:53am
Aultimer:

me: Note that unsafe operation isn't tied to alcohol any more than to cell phone use or mere incompetence.

Clayton Cramer: This would be an interesting claim worthy of serious consideration

You missed the point - it wasn't a claim, it was a proposal to criminalize all bad driving (sober or not) equally, rather than making high BAC a crime.

Apparently it's infeasable because the government is bad at statistics and has too much other work to do.
1.4.2008 11:03am
Prufrock765 (mail):
A person using a cell phone is not impaired, he is distracted. Give the person a ticket and tell them to turn off the phone.
You can not give a drunk a ticket and say "sober up and be on your way".
The two conditions are not in any way legally comparable.
As for "mere incompetence": if the driver is incompetent, then he will eventually not be able to get insurance. Driving without proof of insurance is a crime.
I remain puzzled as to what precise change in public policy Aultimer is advocating.
1.4.2008 12:27pm
Clayton E. Cramer (mail) (www):

Clayton Cramer - Two things. Correlation != causation, no matter how much you want the numbers to validate your worldview. I never said cell phones are a sole cause either - the fact that cell phone use increased over the period of the study doesn't change anything about what the numbers prove.
You would expect if use of cell phones is comparable to drunk driving in terms of hazard that there would have been a dramatic increase in traffic accident deaths as cell phones went from something that only a few people have to something that everyone has—and at times, it seems like almost everyone uses while driving. Yet traffic accident deaths have actually somewhat fallen.

Now, there are a lot of other factors that might have overwhelmed cell phone use to cause the drop in traffic accidents—mandatory seat belt laws, improved safety of cars, and so on—but when you make a claim that tries to suggest that cell phone use is comparable to drunk driving in terms of hazard, that's a pretty amazing claim, and requires some pretty amazing evidence.

I've talked to plenty of people over the years who insist that they drive better drunk than most people drive when sober. But I recognize that that's the alcohol talking.
1.4.2008 12:48pm
Clayton E. Cramer (mail) (www):

You missed the point - it wasn't a claim, it was a proposal to criminalize all bad driving (sober or not) equally, rather than making high BAC a crime.
It is actually already a criminal offense in every state in which I have resided to drive dangerously, regardless of your intoxication. In California, reckless driving. Here in Idaho, there is both "reckless driving" and "distracted driving" (which apparently precedes the cell phone idiocy).

High BAC is a crime for the same reason that most cities have laws that prohibit pulling out your gun and target shooting in the streets. Yeah, you might not hit anyone--but only a fool would refuse to recognize the hazard involved.
1.4.2008 12:52pm
Clayton E. Cramer (mail) (www):

A person using a cell phone is not impaired, he is distracted. Give the person a ticket and tell them to turn off the phone.
More important, most people who are using a cell phone only need a couple of scares to figure out how incredibly foolish this is. People with severe alcohol problems seem incapable of learning, even when they have put out thousands of dollars in legal fees.

Some years back, a friend was convicted of "wet reckless" (reckless driving where alcohol had been a contributing factor). As he explained it, it cost him about $840 (and this was when that was equivalent of perhaps $1400 today). "The two most expensive beers I've ever had!" He learned his lesson.
1.4.2008 12:59pm
Aultimer:

Prufrock765: A person using a cell phone is not impaired, he is distracted. Give the person a ticket and tell them to turn off the phone.

That doesn't help when they're dead, or have killed a bystander. Oh, and I'm told drunks sober up.

Clayton Cramer:
you make a claim that tries to suggest that cell phone use is comparable to drunk driving in terms of hazard, that's a pretty amazing claim, and requires some pretty amazing evidence

That's your strawman - my claim is that incompetence, distraction and the like may well (or may not) be a substantial causal factor in the fatalities where BAC is found to be high (or 0). There's no proof in the stats either way.

If I could stick a needle into a cadaver and measure driving competence and attentiveness, do you think there would be a higher or lower correlation than BAC in fatalities?


only a fool would refuse to recognize the hazard involved


I don't think that's the new libertarian standard for taking away freedoms. I also note that it applies to driving sober.
1.4.2008 2:04pm
Clayton E. Cramer (mail) (www):
Aultimer writes:

That's your strawman - my claim is that incompetence, distraction and the like may well (or may not) be a substantial causal factor in the fatalities where BAC is found to be high (or 0). There's no proof in the stats either way.

If I could stick a needle into a cadaver and measure driving competence and attentiveness, do you think there would be a higher or lower correlation than BAC in fatalities?
Guess what? High BAC correlates very well with competence and attentiveness, because being drunk impairs both. Is the relationship perfect? No. You can find people that are competent and attentive at .1% BAC. You can find people that incompetent and inattentive when dead sober. But do you really want to argue that there isn't substantial overlap on these because high BAC levels cause incompetence and inattentiveness?



only a fool would refuse to recognize the hazard involved

I don't think that's the new libertarian standard for taking away freedoms. I also note that it applies to driving sober.
One of the reasons that I find myself less and less able to take ideologues seriously is the willingness to dismiss the example that I gave.

Stop playing your silly little game, and answer this question: should it be lawful to go into a busy street, set up targets, and start shooting at them? You are arguing that until one of your stray bullets actually hits someone, it's really no one's business if you do.
1.4.2008 2:29pm
pete (mail) (www):
Clayton E. Cramer, I share your frustration. It is discussions like this that turned me away from libertarianism, while I am still sympathetic to many libertarian ideas. The pure libertarian ideology imposes substancial costs on the real world that the ideologue refuses to acknowledge. Regulating people who drive with BAC over .08 has been shown over several decades to prevent thousands of deaths per year with a relatively limited cost to liberty. Of all his talk Aultimer has yet to produce any statistics that back up his rather wild and unintuitive claims that allowing people to drive with BAC over .08 would not have a susbstantial cost in human lives. One of the main functions of the current BAC law is to prevent accidents before they happen through coercive deterrence, not to just punish people after the fact. Yes this may result in the loss of liberty for those who do not actually cause damage to people and even some who may be not terrible drivers while intoxicated, but that loss of liberty is far outweighed by the gains in liberty that occur because thousands of people every year are prevented from suffereing death, injury, and loss of property caused by intoxicated drivers.

The point of the original post was to discuss ways of coercive deterrence that are likely to prevent future drunk drivers. I do not think limiting drunk drivers to small cars is that good of an idea after reading these comments. I do like the earlier idea of making it illegal for businesses to sell alcohol to convicted drunk drivers and making the consequences for repeat offenders more severe and although they would not be perfect solutions, they would be reasonable deterents.

This all reminds me of a philosophy professor I had who thought that the penatly for crimes in America should be more deontologically focused than it is today, where our criminal justice system has a large emphasis on consequentialism. For instance, having the penalty for attempted murder be less than the penalty for murder rewards the attempted murderer for being incompetent at killing, while if it was up to him the victim would still be dead. In many ways the attempted murderer is just as immorral as the successful murderer as both have proved their willingness to murder people.
1.4.2008 5:56pm
Elliot123 (mail):
Is riding a bicycle a right or privilege? Walking down the street? Flying a kite? Sitting on a park bench? How do we tell the difference? Is there some principle that can be applied to any activity that will tell us on which side of the line it falls?
1.4.2008 10:17pm
Ryan Waxx (mail):
A lot of people here seem to rely excessively on the fact that driving is classified as a privilege and not a right.

It never seems to occur to them that that is an accident of history and nothing more. Obviously, you can't put a right to drive in the bill of rights if driving isn't invented yet.

And yet, every single proxy one could think of to driving was certainly protected in the framers' era. Do you think that the framers would charge the federal government with ensuring freedom of travel between states, and yet support the removal of methods to do so? For manyAmericans, a car is required to work. Do you think the framers would consider the revocation of one's profession merely a matter of ' privelege'?

I believe that if driving's role in society as it exists today existed then, there would have been 11 items in the bill of rights. And for those of you tempted to suggest proposing an amendment, you need to consider carefully just how many of the rights we enjoy today would actually pass if our currentpoliticians were voting on them.

That does not mean you can't remove or suspend a right for cause... you just need a higher standard than for a privilege, and the presumption shifts from assuming that the government 'allows' you to have the 'privilege' of holding a job and paying taxes to assuming that the individual retains that right unless stripped of it. Is that really so terrible or fearsome an idea?

The government has assigned to itself the authority to revoke or hold hostage your 'privilege' to hold a job or travel (AKA drive) for things unrelated to safe driving like owing child support or owing the DMV money. It holds this incredible power over your life without a right to trial, without oversight, and no legal restriction over the number of things for which it can revoke this 'privilege', again with no protection of trial for the victim. This should disturb anyone who claims to take civil liberties seriously.

At the moment, this is more of a potential problem than an actual one. The number of non-driving-related sins that will get yourlicense revoked is still relatively small, and most of the excesses are confined to groups (like deadbeat dads) who are regarded by society as not having any rights anyway. But the power is there, just waiting for the next ambitious politician to expand it again.

Some people who are disrespectful of others' rights suggest 'alternatives' to driving: Like selling your house to move within walking distance of your job or forfeiting your job. My suggestion is that if you haven't the balls to suggest the government be given the power to forcibly relocate you or kick you out of your job, then you shouldn't suggest that those things be done by proxy, either. "Oh, we didn't strangle Bob: we just withheld air for a few minutes!" is not a defense at a murder trial, is it?

Yes, driving is not a 'right'. But it should be.
1.6.2008 10:10am