As a former law professor, I would start my criminal law courses with the basics: There are two kinds of laws: malum in se and malum prohibitum. With the first, a law exists because the prohibited conduct is inherently bad; murder, theft and rape would be obvious examples. With the second, the conduct is illegal simply because we decide that it should be; gambling, prostitution and possessing drugs come to mind.
The malum in se laws are easy: Is there a victim? The malum prohibitum are more difficult: society must ask itself what kinds of conduct that does not directly involve harm to another should nevertheless be punished for whatever reason. Often, the types of conduct included in this category are based upon moral judgments.
Where does drunk driving fall? DUI carries increasingly severe criminal penalties: jail sentences, extensive license suspensions, stiff fines, alcohol education programs, ignition interlock devices, probation, and often more. Is it inherently bad, or is it bad because we’ve decided to punish it — possibly for unrecognized moral reasons?
There is no victim in the vast majority of DUI cases. However, the severity of the punishment would seem to indicate this to be a malum in se offense, presumably on the grounds that there is a possibility that someone could be injured or killed. According to MADD’s own statistics, there were 159 million alcohol-impaired trips in one recent year, with 11,773 alcohol-related fatalities. So it is dangerous, although the likelihood of a death is very small: about 1 in every 13,500 DUI incidents, according to MADD’s figures. One must add to this, of course, the likelihood of non-fatal injury.
So….Do we severely punish drunk driving solely because it is dangerous to human life — or is it at least partly because of a moral judgment about alcohol?
Before we answer that, let’s apply the same analysis to distracted driving — driving while talking on a cell phone or while texting (DWT), for example. In many states it is perfectly legal to engage in such behavior; in others, it carries a minor fine with no other consequences (in California, for example, the fine is $50, there is no criminal record – and the police rarely enforce the law).
Yet….All of the recent studies have come to the same conclusion: distracted driving is at least as dangerous to human life as drunk driving. See my earlier posts, Alcohol vs Cell Phone: Which Is More Dangerous?, Driving Under the Influence of…a Cell Phone, Most Dangerous: Drunk, Drowsy or Distracted?, The Difference Between DUI and DWT Is…?, Inebriated or Texting – Which Is More Dangerous When Driving?, Feds Crack Down on DUI – and Cover Up DWT,
So….If the risk of harm is similar, why the huge disparity in the laws? Why is one morally condemned and harshly punished — while the other receives a slap on the hand, if that?
If I haven’t made it clear, my point is not that drunk driving should be legal: it is dangerous and should be punished. But the punishment should be based upon the degree of danger — not upon a prohibitionist condemnation of alcohol. And equivalent punishments should be meted out for distracted driving.