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December 23, 2006

Shouldn't we be much, much tougher with drunk drivers?

Just in time for the holiday driving season, the AP reports on the latest statistics on nationwide drunken-driving deaths:

The government said 12,945 motorists died in a crash involving a legally drunk driver in 2005, compared with 13,099 in 2004. Alcohol-related fatalities also fell during that span: from 16,919 in 2004 to 16,885 in 2005.

Though this small dip in drunk driving deaths is encouraging, these numbers once again have me wondering about our criminal justice and sentencing priorities.  Relatively few persons are killed each year by sex offenders, but over 1,000 persons die each month because of drunk drivers.  Nevertheless, despite the fact that lives and personal safety are jeopardized far more by drunk drivers than by sex offenders, legislators continue to rush to get tougher and tougher with sex offenders while failing to try anything new or severe regarding drunk driving sentencing.

Some related posts on drunk driving sentencing:

December 23, 2006 at 11:53 AM | Permalink


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I'm suprised to see this blog, of all places, advocating more severe sentencing regimes (something that you also did back in April, by the way), even for something that causes as much harm as drunk driving. Though it's true there is a discrepancy between sex offenses and drunk driving in terms of the amount of damage these things inflict on society and the punishments allocated to them, I don't think the smart response is to suggest that we keep people even longer in our already overcrowded prisons. That's all too similar to the idea that the way to fix the crack/powder cocaine sentencing disparity is to make every cocaine sentence as draconian as those handed out for crack possession.

Criminal sentences are not the only way to respond to a societal problem. Just last month, for example, MADD kicked off a campaign to encourage "interlock" devices in car ignititions, so that a drunk driver would not be able to start the car. Though there are obviously complications involved in such a proposal, it's at least an alternative to our default reliance on criminal law as a tool for societal improvement.

Posted by: Alex Coolman | Dec 23, 2006 1:42:24 PM

(Sorry to be redundant in pointing out that April post, which I realize on reading back is also clearly noted in the body of today's item.)

Posted by: Alex Coolman | Dec 23, 2006 1:46:04 PM

Drunk drivers who kill other people should be put to death, but that will never happen. Many legislators are able to see parallels between themselves and drunk drivers and are more sympathetic.

Similarly, almost no legislator sees parallels between himself and a sex offender (and is more likely to see parallels between the victim and someone he knows), and those who do are unlikely to act on it.

Thus, to the average legislator, the DUI perpetrator looks like "one of our community who made a mistake," while the sex offender looks more like undifferentiated evil.

If DUI carried any real punishment, ignition locks would be less necessary.

Posted by: Stan | Dec 23, 2006 4:40:02 PM

I would love to see DUI perpetrators executed, but as long as legislators have drinking problems, that'll never happen.

Posted by: Stan | Dec 23, 2006 4:41:12 PM

Alex: if we were tougher with drunk drivers who clearly cause a lot of harm, perhaps we'd be less tough on criminal who do not obviously cause a lot of harm --- e.g., low-level drug types, technical probation violators, etc. Plus, getting tougher need not mean imprisonment. How about hefty fines and/or very long terms of community service for first offenses or extreme shaming punishments?

Posted by: Doug B. | Dec 23, 2006 5:38:44 PM

Doug, people are getting sentenced to 99 years or life for multiple DWIs in Texas. (We also have among the higher rates of DWI deaths among states, I might add) Why would you say it's not being harshly punished? See the DAs' discussion on DWI enhancements reference at:



Posted by: Gritsforbreakfast | Dec 23, 2006 10:35:11 PM

Honestly written, the article would lead "Goverment officials estimated that approximately 13,000 people died in accidents involving at least one person suspected to be driving with a prohibited alcohol concentration, unchanged from last year."

The dishonest statements are:

1. The death toll stated in the report counts all persons, not only motorists. This may be a reporting error, or a false statement at the press conference.

2. The count is a guess. On one hand it's an educated guess; on the other hand they want the number to be big. Not all drivers had blood alcohol measured. Not all drivers had any sort of test done. NHTSA and police agencies make up data to fill in the gaps.

3. The change would be statistically insignificant even if the numbers were not approximate.

4. The offense is not drunk driving and has not been for a long time. "Legally drunk" is just propaganda. The offense is driving with a prohibited alcohol concentration.

NHTSA's other favorite statistic says one third of accidents are "speed-related". A third of drivers are traveling at a speed that makes any accident "speed-related" by definition. So the evidence is consistent with speed having nothing to do with safety. In fact extreme speeds are dangerous, driving 10 over the limit is statistically safer than driving at the limit, and those effects balance when you aggregate all fast drivers together.

A person with .08% BAC is within the normal range of variation in driving ability. I know a woman who had a wreck every 18 months until her boyfriend got her to be more careful on the road. She was as dangerous as a "legally drunk" driver. According to some studies, people using their cell phones (hands-free or not) are as dangerous as "legally drunk" drivers. At double the legal limit most people are considered drunk and are more dangerous than a generic bad driver. But NHTSA, MADD, and others have lobbied hard to make sure we can't target drunk drivers.

Maybe all this testing is a mistake, because government officials can't be trusted when it comes to measurable quantities. They love fiddling with the dial. There's always somebody begging them to change the setting. And of course the stricter the threshold gets, the more people are breaking the law, and the bigger the problem is that can be fixed by making the threshold just a little more strict...

As a non-drinker, I'd feel safer with old-fashioned laws targeting drunk drivers.

BTW, the death toll from "legally drunk" and "legally sober" drivers put together is much less than the death toll from medical mistakes. How about we lock up every doctor whose patient dies unexpectedly?

Posted by: John Carr | Dec 24, 2006 10:02:19 AM

Stan alluded, although possibly a little jokingly, at the real problem. DWI is the one crime for which non-criminal types, particularly legislators who all love their booze, are likely to be arrested. Legislators are not going to subject themselves to the death penalty, let alone high-degree felony charges. In most states the first 2 DWI convictions are misdemeanors, while the third or more is a low-level felony (i.e. 3rd degree but never 2nd or 1st or capital). It won't get any more severe than this so long as all legislators have a cabinet of scotch in their offices.

Intoxication manslaughter should be, and typically is, punished severely. I think the punishment should depend not on "intoxication" (which is inherently subjective) but rather on the recklessness of the driving. Some people can drive perfectly fine after 8 or 10 drinks. More power to them. Some people are swerving in and out of lanes after 3 or 4 drinks. They should be punished for swerving in and out of lanes (hopefully with aid of a video), not for merely having ETOH in their blood. The crime should be "Driving Badly due to Intoxication."

Posted by: Bruce | Dec 24, 2006 3:10:13 PM

I agree with Bruce. The law should say first and foremost, "voluntary intoxication is not an excuse for driving badly." Once some act of negligent driving occurs, alcohol involvement is relevant only because there is a core of chronic offenders who need to be treated specially.

I would apply this principle to traffic law in general -- reduce the list of offenses to negligent driving, reckless driving, and obstructing traffic, and make violating a rule evidence of negligence. If the officer alleges negligence, make him play the video in court and prove it.

I also agree that politicians won't put themselves at risk by cracking down on first or second offenders. They drink and drive as much as the rest of the people. Using their rank and connections to avoid prosecution doesn't always work. They need to keep the usual deal light enough to endure.

Posted by: John Carr | Dec 24, 2006 4:30:44 PM

Well the trouble is that a sex offender has actually committed a real harm. Drunk drivers--until they cause an accident--have not actually harmed anyone. You're advocating harsher penalties on something that is already predicated on a theory of negligence without harm.

With recent moves in many states to adopt a 0.08 BAC standard for DUI, it is no longer true that people legally considered to be severely impaired actually are.

The truth is that millions of people are driving each day over the legal limit but not posing harm. They are never arrested for doing so because their BAC does not manifest itself in their driving behavior. But bamn, once these people are involved in accident, their BAC is implicated.

This is faulty methodology; its base-rate neglect.

Put another way: consider sampling at accidents that shows many more people involved in accidents have BAC > 0.01 compared to BAC < 0.01. Is this evidence that BAC causes accidents or that most drivers at night have detectable BAC?

Or imagine if we keep lowering the legal limit, but all else in society remains the same. One would see ever increasing stats about accidents and drunk driving leading to ever lower limits.


Posted by: Paul Allen | Dec 25, 2006 7:08:18 PM

Also worthy pointing out that DWAIB (driving while alcohol in bloodstream) is just as potentially dangerous as DWTOC (driving while talking on cellphone), DWF (driving while female), DWYM (driving while young male), DWE (driving while elderly), DWR (driving while religious... the more jesus stickers on a car the more banged up it is, which is good evidence that religious people are bad drivers, particularly those who are more busy praying than watching the road), DWS (driving while stressed-out), DWTM (driving while text messaging), and DWHS (driving while having sex). Why is only one of these, the one involving alcohol, singled out? Surely society does not have more utility for all the others so as to outweigh the potential danger.

Posted by: Bruce | Dec 25, 2006 8:13:36 PM

At least in Michigan, and I suspect in other states, aggravating circumstances make the offense more than just a typical DUI case. For example, DUI plus death is second-degree murder, or its own 15-year felony. DUI plus injury is a 5-year felony. DUI plus a minor in the car is a more serious penalty. DUI, third-offense is a 5-year felony. DUI, second-offense, is a 1 year misdemeanor. There are other aggravating factors as well. These days, DUI alone, without any aggravating factors, almost always means no accident, or, if there was an accident, that no one, other than the driver, got hurt. I still believe that the punishment should be proportional to what happened, rather than what might have happened.

Posted by: Greg Jones | Dec 26, 2006 11:57:24 AM

If I recall correctly, Michigan has a strict liability offense for being in a fatal accident while driving with an illegal alcohol level. Fault does not have to be proved.

Massachusetts has a form of this, but the impact is not very great.

In Massachusetts all misdemeanor crimes involving driving with an illegal alcohol level have a statutory maximum of 2 1/2 years. The difference is the mandatory minimum, which ranges from a 45 day loss of license for a first offense to six months in jail if the person also drove negligently and caused serious bodily injury.

Driving with an illegal alcohol level is a felony if it is a third offense (150 days to 5 years), if death results from negligent operation (1 to 15 years), or if death results from reckless operation (5 to 20 years). The last one is new; it is an aggravated form of manslaughter with a statutory minimum of five years. The advisory guideline sentence for ordinary manslaughter is around 6-8 years but lighter sentences down to probation are common (recall Louise Woodward).

Having a fatal accident while driving with an illegal alcohol level, but not driving negligently, is misdemeanor motor vehicle homicide. Compared to the lesser included offense of simple OUI the only legal difference is a longer license suspension. The crime is the same as negligent motor vehicle homicide. If you are negligent OR under the influence it's a misdemeanor. If you are negligent AND under the influence it's a felony. ("Negligent" means ordinary negligence, the same as in tort law.)

Posted by: John Carr | Dec 26, 2006 3:10:07 PM

Considering that overseas drunk drivers are SOL it makes the American system almost permissive.

Posted by: American Driver | Apr 12, 2008 9:25:40 PM

The law should be imposed against drunk drivers, whether they are a celebrity or not. Having first-time offenders do community service is fine by me. But others who have violated the law more than once should receive harsher penalties.

Posted by: Stephen Schaunt | Nov 15, 2011 9:27:31 AM

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