Some Perspective on a Politically Incorrect Crime

Posted by Lawrence Taylor on September 4th, 2012

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, there is a small fine, 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 PhoneMost 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.

  • Tim

    Well stated and so true!

  • HonkingAntelope

    You are asking way too many intelligent questions. Don’t ya know IT’S FOR THE CHILDREN!


  • 808 dui offender-12/28/11

    Prior to my dui arrest I occasionally flirted with the 0.8 compliance. Subconsciously I would say to myself there’s a line-don’t cross it, especially when I was driving after drinking. I blew a 1.0 on the night I got caught. It ruined my life. Loss of job. Loss of respect. When I reflect back (little over 9 months ago), had there been a zero tolerance compliance (in my opinion), the thought of drinking and then driving would never have entered my mind. I do think someday that the highest court will rule that it is a paradox to allow people to drink and drive as long as it’s below a .08. For anyone reading I hope you don’t fall prey to what I experienced–the seduction of toeing the .08 line. Thank You.

  • Standup

    Sounds like something one of the anti-alcohol, fanatical terrorists from MADD would say…

  • DUI – The Constitution Need Not Apply

    Well stated.
    @ dui offender – Maybe you’re right. Zero tolerance is the way to go. We could entirely eliminate DUI if only we could further lessen the individual rights of people who insist on toeing the line. Ignition iterlocks mandatory on ALL vehicles. DUI checkpoints. Perhaps a new prohibition on alcohol would do the trick.
    This thinking could be applied to distracted driving and other ‘dangerous’ activities, as well.
    If we could just continue to further empower the police and the state, we could eliminate all risk. Substitute our liberty for our security….the state could assure our safety.
    Sounds like a living hell.

  • ggoddess

    The sad repentant idiot who got caught and somehow utterly lost everything is amazing. And utterly disingenuous. I know many people who have been charged with a DUI some in public office who go on with life and living. This DUI obsession in this country is more ways to morally justify and objectify those who are not duly repentant. How absurd. Again its also a resistance to science, to study and to facts that would actually require those in law making and enforcement to uphold and adhere to. Not something our christian based society is willing to do on a number of issues. This is temperance and judgement that is all this is

  • Seeking Advice

    DWI offender. Lost license for 3 years, ASAP classes, and IOP are all required plus ignition interlock perhaps for another one and a half years. It is not possible for me to tool around to meetings, etc. in a scooter (which is not really legal in my state with a DUI/DWI conviction). I have no other offenses in my entire lifetime. I am so sickened by this system and the money involved and various support agencies that feed off of it, that I am seriously thinking about getting an out of state driver’s license. I would like any suggestions and appreciate any thoughts.
    DUI/DWI’s represent a great deal of revenue to many people/agencies/counties, etc. It’s big business gone bad.

  • Karl

    DUI offender 9/2010. Nurse. Prior, my MVR was clear. Prior, no complaints against my nursing license of 25 years, in 3 states. I am not only a non- drinker typically- but I am also a lifelong crier against people drinking and driving. Little did I realize the current state of affairs after my own DUI conviction. I wrote a book after my arrest, to attempt to explain my grim circumstances. Of the thousands of sites I explored, this one (Taylor) is the most matter=of=fact, and in =your=face and accurate. I have referenced his information throughout my book. If you’d like to see my promo video on youtube? “DUI:TicketToHell”. I’m planning my final exit, since I am unemployable. Be careful, people, what you wish for in your laws…

  • Brian

    It is amazing how the vindictive nature of MADD has evolved to do more harm than good.  As Mr. Lawrence has stated, MADD themselves claim a less than .001% chance of a drunk driver killing themselves or someone else, in nearly 70% of the deaths the offender pays the ultimate price, with their own life, so in truth the number of deaths with victims is actually much less than the 10,000 MADD always states.  Furthermore, in the remaining 30%, the other person who dies in nearly 80% of the remainder is a fully competent adult with the ability of free choice who chooses to ride with a drunk driver, so again the person has willfully chosen to pursue an activity that is inherently dangerous, no different from sky diving or bungee jumping, both activities that require full disclaimers preventing fault to fall on the provider of such service.  So in truth, less than 1,000 drunk driving accidents a year actually affect an "innocent" victim.  There are also the cases where the person who actually caused the accident was not the drunk driver, which granted is rare, but does happen.  In 1995, there were 1,500 unintentional drownings of children under the age of 21 yet we do not outlaw swimming pools, baths for children, nor do we hold parents accountable for the unfortunate deaths of their young.
    I am afraid that I will be facing similar issues now that I am laid off, I have a drunk driving arrest from June 24, 2011 that I had a tested BAC of .09, it is still being contested, I am hopefully that it will be thrown out, but either way, until it is, in the state of NC, where I live, employers can ask for any arrests or convictions of any misdemeanors or felonies.  Unfortunately, NC does not have any restrictions in what they can ask concerning an individual's criminal record.  And of course, they always allow you to describe the situation, but we all know, that in any professional field, an arrest for DUI regardless of the circumstances will be seen at the bare minimum as poor judgement and will lead to one not being hired.  With nearly 1 million DUI arrests a year in America, one must really wonder if at some point there will be a large population of unemployable people who will not only become a drag on our economy but will create a broader class of entitlement recipients not because of choice but rather out of necessity.  Won't that be a great news story if anyone was willing to write it, 2% of our current 7.8% unemployment rate based on people who can not find suitable employment due to victimless crimes that are misdemeanors, yet no one will hire them.
    Case in point, the gentleman who was the Director of the FAA, he was stopped for DUI, he was forced to resign his position even though he was later found not guilty and the arrest was obviously made while he was off duty.  Yet he lost his job and probably will not be able to find another position based on the bad publicity.
    Good luck Karl, I hope I can find something in SC or GA, I don't think either state allows employers to ask about arrests, only convictions.

  • Karl

    I'd like to make contact with you. Maybe go to my youtube video and leave a comment with your email? I could use more input for my book. Or if this goes through email me at OmSteelo (at) gmail (dot) com?