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Monday, June 30, 2008

DWI: A social problem masquerading as a crime?

By Scott Henson of Grits For Breakfast

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A fascinating discussion is underway in the legal blawgosphere regarding DWI, the threat it creates, and whether criminal sanctions are an appropriate response.

Our pal Mark Bennett in Houston began the fray with a discussion of when it's appropriate to refuse a breathalyzer test, concluding there are only two circumstances when you should say "No": When you're guilty, and when you're innocent. (This advice, I should mention, is not universally popular, at least among the folks trying to score convictions.) The main reason to refuse if you're sober, says Bennett, is the possibility of false positives: The error rate on the commonly used Intoxilyzer 5000, he says, is an astonishing plus or minus 25%! That would make breath tests one of the least reliable of the commonly used forensic tests.

Going further in another post, Bennett (accurately if controversially) observed that in the vast, vast majority of cases DWI is a victimless crime. Fort Worth attorney Shawn Matlock really threw down the gauntlet though with the claim that DWI shouldn't be a "crime" at all. As WindyPundit summarized Matlock's position, "when someone gets a DUI, nearly all the legal action is about suspending their license and taking their money. Why not just finish the process and remove the criminal aspect completely?"

Scott Greenfield chimed in to say he thinks Matlock went too far, that DWI should be a crime. But I can certainly see the reasoning behind Matlock's argument, at least for criminalizing DWI only after multiple offenses or if injury or property damage result. After all, non-drunk drivers kill more people than drunk ones; not every risk denotes a criminal act. The current approach treats defendants as cash cows with little regard for prevention. Why not just do away with the pretense?

Windy and Bennett each followed up with statistical explications of the risks from DWI, though for reasons discussed in the comments at Bennett's shop, I don't think they've quite yet identified the data needed to get to a reliable number. Windy concludes from the exercise, "So, don't drive drunk, and don't let friends drive drunk. But if you or your friend happen to drive drunk one night, don't sweat it too much." (!)

This discussion raises a number of fascinating questions to which I (and probably nobody) knows the answers. For starters, what options besides criminal sanctions might reduce DWI, potentially at a lesser cost? How about expanding public transportation? Or maybe taxing alcohol to fund a program of rides home from bars? As with cigarette smoking (which has declined more than drunk driving over a comparable period), TV ads might be more effective at reducing drunk driving than anything a cop can do.

Another question: How much do criminal sanctions deter drunk driving? Punishment only prevents wrongdoing if it's certainly applied. In the case of drunk driving, where Bennett estimates officers arrest one drunk driver out of every 114 trips, most drunk driving brings no penalty and thus likely little deterrent. (As Matlock emphasizes, most offenders are more worried about their license suspension than any criminal culpability.)

How much do current DWI laws cost to enforce? It's hard to tell because costs are divvied up among all sorts of state, county and municipal jurisdictions, with some occasional federal money thrown in to boot. (A back of the napkin estimate indicates Texas spends between $80-100 million per year on prison for felony DWIs alone; most DWIs, however, are misdemeanors handled at the county level.) Given the limited deterrence factor of one arrest per 114 drunken trips, would we see a greater reduction in drunk driving if the same resources went to non-punitive means of reducing drunk driving? Maybe.

If DWI is worth deterring as a public policy then it's worth paying to deter. Indeed, we're already paying some unknown amount on a pure enforcement approach that yields limited results. Is criminalizing DWI the best way to go, or does the tactic soak up money that could be used for more effective approaches?


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Comments

Scott Doyle

Scott Doyle Verified

Interesting issue. I'm leaning towards decriminalization and deterrence efforts, however the current system has its pros.

Good friend of mine got a DWI just over a year ago. Was drinking pretty heavily...consistently. Had to pay for an interlock device to be installed (breathalyzer in your vehicle, for those unaware) and attend AA semi-weekly, on top of all the court fees, attorney's fees, etc.

After a couple of mishaps (and a very caring probation officer) he's stopped drinking altogether, is going back to school, got a promotion at work, etc.

Guarantee if he wasn't concerned about getting tossed in jail for violating probation, he wouldn't have cleaned up. Granted, I think it's a bit extreme that he quit altogether (different discussion of its own) - but he's definitely in higher spirits these days.

Regardless of his successful situation, I'm positive there are plenty of times that a DWI wrecks someone's life on account of the charge and money involved in handling it. Since it's typically $6k-$10k, anybody who isn't working full time in a decent position is pretty much boned for at least a couple of years.

People should clearly be held accountable for their actions, but unless they cause bodily or property damage - or are a clear threat to do so - seems over the top to slam someone with that kinda hardship.

3 months, 1 week ago ( Link to this comment | Suggest removal )

xdavidwattsx

xdavidwattsx Anonymous

ScoDo - I think being drunk and behind a heavy metal machine that can kill fully qualifies someone as a "clear threat to do so".

Won't get much sympathy from me on drunk driving. Throw away the key on them. I'd actually like to see the penalties be even stiffer or at least more enforcement.

I do think this is playing loose and fast with stats, though:

"After all, non-drunk drivers kill more people than drunk ones; not every risk denotes a criminal act."

Well, duh. When you consider the percentage of sober vs drunk people on the roads 24/7 I think that would be pretty obvious.

3 months, 1 week ago ( Link to this comment | Suggest removal )

Scott Doyle

Scott Doyle Verified

Do you agree with the state that 0.08 is drunk? 2-3 drinks? Not saying I condone getting obliterated and driving, but the current standards for determining if someone is drunk seem to err a bit much towards sober.

Slapping an occasional person with this kind of charge obviously isn't stopping many peeps from doing it. Issue is whether we should shift our focus towards deterrent methods rather than almost strictly punitive...not whether the current punishment is stiff enough. I guess a good question to ask is: Where is all this money from fines going?

3 months, 1 week ago ( Link to this comment | Suggest removal )

Jason Rice

Jason Rice Verified

Definitely I line up wit x*x here. Stats again. Man. Nasty stuff.

As for decriminalizing drunk driving, pose a simple and directly applicable parallel:

Is firing a gun into a crowd criminal? Why?

3 months, 1 week ago ( Link to this comment | Suggest removal )

Scott Doyle

Scott Doyle Verified

Not a parallel at all, you're presuming someone who's considered drunk (by law, mind you) to not have any control whatsoever over the operation of the vehicle.

Estimated 1 in 114 'drunk' drivers caught pretty much shoots that one down immediately.

3 months, 1 week ago ( Link to this comment | Suggest removal )

xdavidwattsx

xdavidwattsx Anonymous

Dunno, ScoDo. I've never done a test so I don't really have any perspective on what .08 feels like.

It's been my general understanding that 1-2 drinks per hour will usually keep you within the legal limit and 1-2 drinks per hour is more than sufficient.

3 months, 1 week ago ( Link to this comment | Suggest removal )

Scott Doyle

Scott Doyle Verified

Don't have time to google an effective chart, but 4 drinks in 2 hours and you're pretty much hosed unless you're 200+ pounds. Keep that pace up for just another hour and you're definitely screwed.

Think the rate that alcohol is burned off per hour is something like 0.015% BAC, but I think that's only if you've stopped drinking. Obv doesn't burn off as quick if there's still intake.

From where I'm sitting, current system gives cops every incentive to try and hit you with a DWI since it brings in so much funding...without much in the way of actually trying to keep people from putting themselves in that situation to begin with.

3 months, 1 week ago ( Link to this comment | Suggest removal )

Catherine Cuellar

Catherine Cuellar Verified

Some friends of mine recently bought a breathalyzer on Amazon to check the blood alcohol level of guests at at their parties and discourage friends from driving drunk. It was astonishing to see one woman with .14 after just a few drinks (but she is petite, thin, and doesn't drink frequently). I think driving is a privilege that should be revoked when people are reckless under any circumstances. However, alcoholism is a disease, and our society would benefit from treating and rehabilitating those who suffer rather than criminalizing their symptoms and warehousing them in our jails.

3 months, 1 week ago ( Link to this comment | Suggest removal )

Brett Hoerner

Brett Hoerner Staff

Alcoholism is a disease but driving while drunk isn't.

"Got me a bad case of the hit-a-bus-full-of-kids today, o' boy, I tells ya!"

3 months, 1 week ago ( Link to this comment | Suggest removal )

xdavidwattsx

xdavidwattsx Anonymous

ScoDo - I'm not arguing that .08 is right by any measure. Maybe it would be more accurate if it was .10 or .12. I'm just not sure on that. I do know that there is a point in which one becomes too impaired to safely drive a vehicle and at that point one can easily choose not to drive.

3 months, 1 week ago ( Link to this comment | Suggest removal )

Pavel Lishin

Pavel Lishin Verified

I think the point where you're impaired by alcohol is the point where you're much less likely to choose the correct course of action.

Wonder how much it would cost to put in breathalyzers as a standard feature on all cars?

3 months, 1 week ago ( Link to this comment | Suggest removal )

Brett Hoerner

Brett Hoerner Staff

Pavel, don't you dare take away my right to drive drunk in my own house! This is 'merica, if you don't like it you can gggggeeeeerrtt ouuutt!

3 months, 1 week ago ( Link to this comment | Suggest removal )

Jason Rice

Jason Rice Verified

ScoDo you're just plum for a statistical reaming. Not my turn to do it though. A sparse crowd isn't a defense. If firing a gun into a crowd is illegal and firing a gun into the air is illegal...

I guess if everybody passes a driving test at .08 or .12 or .20, then my argument falls apart but not if you just fail to kill someone that time out.

3 months, 1 week ago ( Link to this comment | Suggest removal )

Jason Rice

Jason Rice Verified

Brett - YOU need a breathalyzer on your PS3... we're working on the final wording for the bill right now.

3 months, 1 week ago ( Link to this comment | Suggest removal )

DC

DC Anonymous

The .08 is pretty well associated with reduced performance behind the wheel and increased numbers of accidents.

1) Moskowitz, H., & Fiorentino, D. (2000). A Review of the Literature on the Effects of Low Doses of Alcohol on Driving-Related Skills (DOT HS 809 028). Washington DC: National Highway Traffic Safety Administration. 2) Alcohol Limits for Drivers: A report on the Effects of Alcohol and Expected Institutional Responses to New Limits (DOT HS 807 692). Washington DC: National Highway Traffic Safety Administration, February 1991

Of course, for some people this summer's must have accessory is a tin foil hat and as such, I imagine they'll disregard the evidence.

3 months, 1 week ago ( Link to this comment | Suggest removal )

Scott Doyle

Scott Doyle Verified

Pavel, there's actually already considerable thought being put into that: http://www.usatoday.com/money/autos/2...

Except it's not a breathalyzer, tries to detect it from skin contact.

Commence with the statistical reaming, Jason. You said yourself those crazy stats can be manipulated pretty much however one sees fit.

DC, a number of things reduce performance. To have a hard-line "yes/no" as far as whether you're too inebriated to safely operate a vehicle seems odd to me. Hitting someone blowing barely a 0.08 with same charges/fines as someone blowing 0.15+ doesn't solve anything, in fact it could end up screwing somebody who entirely intended on staying within the legal limit but didn't wait the additional 15 minutes needed for a lower BAC.

Anyhow, attempt to rerail once again - I'd think anybody calling for more/stricter enforcement would certainly be on board with a deterrent campaign. I certainly don't think peeps who hardly blow a 0.08 are criminals. Methinks reform of just how criminalized DWI's are is in order (based on severity, obv) and a deterrence campaign is warranted.

3 months, 1 week ago ( Link to this comment | Suggest removal )

Jason Rice

Jason Rice Verified

Ok ScoDo - ontrack, we agree. And DC, as the fashion hound in the bunch, you really must update the wardrobe and nomenclature. They're not just tin-foil hats, they are AFDBs (construction details and other resources)

3 months, 1 week ago ( Link to this comment | Suggest removal )

DC

DC Anonymous

The 0.08 evidence is based on thousands of cases and it's pretty compelling. I don't think anyone would disagree with a deterrence or alternatives program.

There's no reason to justify any alcohol while driving. I'd advocate taking the approach in Sweden and lowering the level to 0.02.

Post script: Dallas cab services still completely suck

3 months, 1 week ago ( Link to this comment | Suggest removal )

xdavidwattsx

xdavidwattsx Anonymous

If it was a .02 (and actually enforced) in Dallas you'd basically shut down most bars in the city. One drink and you'd be over and it's hard to walk or ride mass transit in this city.

3 months, 1 week ago ( Link to this comment | Suggest removal )

DC

DC Anonymous

If there's disposable income to spend on alcohol, it's there to take a taxi. Alternatively, having a designated driver is still free.

Dallasites can take comfort in knowing that even as of last week blondes with breast implants were getting totally wasted in Stockholm despite the stricter drinking and driving laws.

3 months, 1 week ago ( Link to this comment | Suggest removal )

Pavel Lishin

Pavel Lishin Verified

I'd be more comforted if they were getting wasted here. Or if we had a public transport system that maybe ran past midnight on the weekends.

3 months, 1 week ago ( Link to this comment | Suggest removal )

DH Anonymous

Obviously, it depends entirely on where you live as to whether or not walking or mass transit is a problem. Transit doesn't run late enough for you to close down the bar, but it could certainly be argued that if you are there for last call, you either got a late start or you definitely don't belong behind the wheel.

I'm inclined to agree with what I perceive DC's position to be. In addition, I think that one's ability to judge whether or not they are capable to drive after drinking goes away after the first drink and I question the wisdom of those who would argue that they are "okay" to drive with a BAC of 0.08 or higher. I contend they are among the least likely to know.

3 months, 1 week ago ( Link to this comment | Suggest removal )

Jason Rice

Jason Rice Verified

DC, Implants reduce your alcohol tolerance THAT much? Wow.

Now there's a side effect that got left out of the brochure. Glad to know.

3 months, 1 week ago ( Link to this comment | Suggest removal )

foreverhonesty2000 Anonymous

let me tell you that the DPD are out there waiting for you on lower greenville & deep ellen just to catch people coming out of bars. I know I was one of them and so far I have spent 8,000.00 and over a year later I still have not had my day in court. I had 2 drinks he followed me 6 miles and then stopped me, he wanted the overtime since his shift should have been over. watchout all this is no laughing matter I can not wait to go in front of a jury and say my side. Please if you do get caught DO NOT BLOW.

3 months, 1 week ago ( Link to this comment | Suggest removal )

luniz Anonymous

DC you ever try to get a cab from Dallas to Plano?

3 months, 1 week ago ( Link to this comment | Suggest removal )

xdavidwattsx

xdavidwattsx Anonymous

No kidding, cabs are expensive in this town.

3 months, 1 week ago ( Link to this comment | Suggest removal )

DH Anonymous

Take the train from Dallas to Plano and then a taxi home.

3 months, 1 week ago ( Link to this comment | Suggest removal )

Brett Hoerner

Brett Hoerner Staff

DH, the rail shuts down too early for some of us on Friday and Saturday.

I know, I know, so leave earlier, or drink less, or... I'm just saying it isn't the solution you seem to think it is.

3 months, 1 week ago ( Link to this comment | Suggest removal )

Robert Kelly

Robert Kelly Verified

why go to plano at all?

3 months, 1 week ago ( Link to this comment | Suggest removal )

Scott Miller

Scott Miller Verified

Obviously harsher, more draconian penalties are the answer. This is America, after all.

Stiffer fines and longer sentences are the answer to everything.

We have what- 5 percent of the world's population and something like 25 per cent of the world's prisoners?

We can do better.

3 months, 1 week ago ( Link to this comment | Suggest removal )

Pavel Lishin

Pavel Lishin Verified

Hey, if DH is telling me I gotta knock off work early and start drinking at 4pm, I'm not really going to argue.

3 months, 1 week ago ( Link to this comment | Suggest removal )

DH Anonymous

Brett, I realize it's not the solution for everyone but maybe worth a look. I live downtown, so I can crawl home.

I think Pavel has got it!

3 months, 1 week ago ( Link to this comment | Suggest removal )

jtmbls

jtmbls Anonymous

Doyle - Very interesting that you find cell phones more hazardous than intoxicants. Political aspirations?

http://www.pegasusnews.com/news/2008/...

Ok - How do you add a link to the actual content of your post? Is that another fancy bonus of being a verified member?

3 months, 1 week ago ( Link to this comment | Suggest removal )

Scott Doyle

Scott Doyle Verified

Do what now? You mean, like this? (no you don't have to be verified iirc, html code should work regardless)

Anyways, never said one or the other is more hazardous - you get a basic citation for cell phones in school zones, but you're a criminal if you blow a 0.08. Since you brought it up, I doubt 3-4 drinks impairs me anymore than talking on the phone for the duration of a trip...but that's just me.

I'm not trying to defend people who get smashed and drive, peeps. Simply don't feel alcohol in moderation is a demon.

3 months, 1 week ago ( Link to this comment | Suggest removal )

jtmbls

jtmbls Anonymous

Yes! Just like that! Thank you - I will read that someday.

"I'm not trying to defend people who get smashed and drive, peeps. Simply don't feel alcohol in moderation is a demon."

Heehee...Can you repost that picture of you with the tie around your head? :-)

3 months, 1 week ago ( Link to this comment | Suggest removal )

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