For the past couple of decades we have seen increasingly severe punishment for misdemeanor drunk driving offenses, often exceeding those imposed for serious felonies. Spurred on by MADD's "War on Drunk Driving", this never-ending flood of politically-popular laws has continued to blindly accept the idea that imposing harsher sentences will eventually eradicate DUI-caused traffic fatalities. With each new law, MADD issues press releases trumpeting their latest achievement with promises of an end to the "carnage on the highways" — along with solicitations for contributions to their over $50 million annual revenue. And yet it continues…along with the collateral costs to our Constitution (see The DUI Exception to the Constitution).
Albert Einstein once defined insanity as "Doing the same thing over and over again and expecting different results". Maybe it's time for a change….
I have not dealt with 1000s of DUI clients over the years without drawing certain conclusions:
1. The system, clearly, does not work: despite unfair laws, constitutional violations and increasingly harsh penalties, the problem remainsâ€¦and people continue to die on the highways.
2. Playing games with statistics, as MADD and the government are so fond of doing, only obscures the problem.
3. The problem is not black-and-white, but involves shades of gray. It is convenient to punish anyone with a .08% blood-alcohol concentration, but neither fair nor productive. It is easy to lump all offenders into the same category of "drunk drivers" and simply adjust jail time by a reading on a machine, but neither fair nor productive.
4. You cannot simply identify what the problem is ("drunk drivers are dangerous"), but who the problem is. The problem is not people who drive with .08% BAC or higher, but people who represent a real danger to others on the highway. Who are they?
The problem is the person who severely abuses alcohol and chooses to drive. You can call him an "alcoholic", but it has been my experience in dealing with those 1000s of clients that there are different kinds of "alcoholics" and that using a simple label is no answer (we do love to put things in neat categories).
Statistics repeatedly show that the vastly disproportionate majority of alcohol-caused injuries and deaths are caused by a few "problem drinkers" (for want of a better term). Thus, the first objective in any solution is to identify these individuals. In my experience, they can usually be identified by a combination of factors:
1. Their blood-alcohol level is not just high — it is very high, say .16% to .30% or more.
2. This is probably not the first DUI — and prior incidents are likely to be relatively recent.
3. There is a genetic flag: the individual is likely to have one or two "alcoholic" parents.
All right, we've identified some markers for who the problem is , but what do we do with them? To begin, let's understand what we don't do: we don't hit them with stiff jail sentences. If we do, we simply remove the person from society for a few days or months — and on the day he gets out, he gets in his car and drives directly to a bar. What has been accomplished? Is society being protected — or are we simply punishing people for drinking too much?
Since the punishment model clearly doesn't work for the problem drinker, we must consider the other criminal justice models — isolation, deterrence and rehabilitation.
1. Isolation. Yes, we can put the problem drinker in jail for a few months or even a few years, and we are safe from him for that period. But can we really afford to house tens of thousands more inmates? For how long? And what happens when they get out? For that matter, given the evidence, aren't we punishing them for a genetic condition?
2. Deterrence. How do you deter an "alcoholic"?
3. Rehabilitation. Once the favored approach in the criminal justice system, rehabilitation fell into widespread disfavor many years ago. Yet, this would appear to be the only logical approach with problem drinkers.
Ok, but what about the driver who is not a problem drinker but who is simply impaired from drinking too much? Answer: Treat him like any other misdemeanant. Statistically, we know he is unlikely to cause serious injury or death, but there is undeniably some risk there. Can this individual be deterred from such future conduct? Unlike with the "alcoholics", statistics show he can. Thus, it may be fair and productive to impose a fine on the typical first-offender, perhaps even suspend his driver's license for a short period; if a high blood-alcohol level is involved, say .20%, the punishment may include a 2-day jail term. But certainly not the punishments so destructive to families and careers that are now being administered to all caught up in the dragnet.
While we're at it, a refreshing approach — and a healthy one for society — would be to reinstate constitutional rights in DUI cases: due process, presumptions of guilt, timely right to counsel, protectiona against double jeopardy, the 5th Amendment right against self-incrimination, the right to confront witnesses, 4th Amendment "sobriety checkpoint" violations, ad nauseum. (Again, see The DUI Exception to the Constitution.)
Does all of this finally solve the drunk driving problem? No: people will always drink and drive. But it will focus on the real threat — the truly dangerous driver — rather than on drinking and driving per se. And, in the process, reinstate the essential fairness and due process that has been slowly removed from the criminal justice system.