Sunday, June 29, 2008

Should states' anti-drunk driving campaign shift to civil side of the courthouse?

More on the question of whether criminal law enforcement is the best way to reduce drunk driving:

The missus just read yesterday's post describing the legal blawgger debate over whether DWI should be criminalized, coming up with what I thought was a clever solution. She thinks the legal tactics to reduce DWI should shift from the criminal to the civil side of the courthouse, using civil litigation to promote and finance anti-drunk driving strategies.

The massive TV ad campaigns that helped drive public opinion so heavily against smoking in the last decade, she pointed out, were financed with billions in civil judgments won by the states in compensation for indigent medical costs. The same could happen with liquor, she suggested.

Under this scheme, states or the courts could allow lawsuits to go forward against alcohol manufacturers just like they did against Big Tobacco. The money would be used to finance prevention schemes, TV advertising, expanded treatment options and other anti-alcoholism measures. Coupled with a TV advertising ban similar to the one for cigarettes, such a strategy would aim not to punish individuals but to change the overall culture, she said, financing the idea with profits from the product that's causing the problem.

Kathy's a pretty smart gal, huh? Whaddya think of her idea?

MORE: See Grits' earlier post, plus earlier discussions from Mark Bennett here, here, and here; from Shawn Matlock, from WindyPundit here and here, and also from Scott Greenfield.

27 comments:

shg said...

Smoking, while legal, has little to commend it (and I [ahem] have a horse in this race). But drinking poses a different spectrum of issues, ranging from alcoholism to the very occasional drinker who makes one poorly timed slip.

I don't know if I would want someone suing Chateau Petrus because some fool drank the whole bottle by himself rather than sipped a glass or two over the course of a few hours with a meal. I see a variety of different problems involved if one views drinking across the full spectrum, many of which don't implicate any wrong whatsoever.

Worse still, are we not edging toward a society where anything, even theoretically harmful (as in transfats) will be either made unlawful or taxed to death to keep us on the path of healthy and homogenized living?

Drinking isn't the wrong. Drinking to excess and then operating a vehicle is the wrong. We need to be careful of that the solution doesn't take away more freedom than the problem.

Gritsforbreakfast said...

Scott, I think she meant some type of multi-state global settlement like with tobacco companies, not opening the floodgate to a slew of individual lawsuits. But I don't understand your argument that taxing alcohol to pay for TV ads somehow hinders "freedom" - especially when the other option you favor is criminal prosecution for DWI!

Alcohol already gets special taxation and is treated much differently than other legal products, so your slippery slope concern doesn't much compel me: We're already on that path, we're just blaming the end users in criminal courts exclusively for DWI instead of assigning culpability more widely. (Besides, we all pay for courts, probation and jail cells for drunks and nobody blinks an eye.)

You say "Drinking isn't the wrong. Drinking to excess and then operating a vehicle is the wrong." But what is the harm when someone drinks to the point where they'd blow past .08 but drives home without incident? IMO that's not a harm, it's a risk, but not every risk need be criminalized. Harming others is definitely wrong, so reckless driving or causing injury or property damage can be categorically called "wrong."

If merely posing a risk is enough for you to justify criminalizing DWI, I don't see how you can believe that the risk created by manufacturing a dangerous product doesn't carry similar culpability.

Besides, Kathy is asking whether the problem needn't be reconsidered entirely. Maybe the solution doesn't lie in finding the best or most culpable person to blame! Maybe it doesn't matter who is "wrong" if the goal is to minimize the number of DWI-related deaths. Perhaps an acknowledgment of the societal risks and harms caused by DWI and a more rigorous assignment of financial responsibility for manufacturers would provide a means and method to achieve the public policy goals without filling up court dockets and jail cells?

Anonymous said...

Unlike tobacco, alchohol has the historical perspective of prohabition. Any attempt to solve the problem at the source will be just as disasterous as the "War on Drugs".

Rather than jail time, why not just increase the fines? Driving while intoxicated does increase the risk to society. The money from the fines should be used to influence cultural norms. Also, holders of alcoholic beverage licenses could be held far more responsible for their actions.

How hard would it be to determine if someone is over .08 when leaving a club and then ensuring they have a designated driver or a taxi? I'd go to a club that advertised such a service.

shg said...

I don't favor shifting the cost from those who engage in the "risky" behavior to those who don't. I see that as a step backward.

On the other hand, I have long maintained that the use of .08 BAC (or whatever amount it is, has been, will be) is unconstitutional for failure to provide notice of wrongdoing. People cannot tell their BAC, and hence have no idea if they are above, at or below the legal limit. I would go back to the old days, before the DWI was determined by BAC, to when it was determined by conduct, which is much more akin to the reckless driving argument.

Drive fine, and you go home. Drive recklessly because you're drunk and get arrested.

As for criminalizing the manufacturer, I can't agree. I am a modest drinker. Should I be penalized through sin taxes because someone else can't stop at six pack? I am for freedom, and some degree of personal responsibility goes hand in hand with freedom.

On the other hand, I think dram shop liabiity is another matter entirely.

dirty harry said...

I guess then that we should entertain the idea of being able to sue the makers of box-cutters for manufacturing a deadly product. This doesn't work for me. Besides, the states suing big tobacco never amounted to anything that benefitted the public at large. It sure made a lot of money for lawyers, though.

Anonymous said...

Absolute nonsense, t.v. commercials and radio ads will not do a thing for hard core drinkers and social drinkers that drive. What we need to do with the money from lawsuits is make a statewide transit system for bars and clubs and restaurants that serve alcohol it can be just like any other public transportation, but just for drunks only. I have a cousin who is an alcoholic the only thing he would do differently is not drive if he had other options..But there is nothing on earth that could stop him from drinking even if he served prison time for manslaughter. Which he did.

Gritsforbreakfast said...

So in other words, 3:44, the present laws did nothing to keep your cousin from hurting someone, but they finally locked him up when he did. Otherwise, public transport and rides home from bars were ideas discussed in the prior post that this one referenced, so you advocating that doesn't contradict anything said here.

I guess I wonder what you disagree with or think is "nonsense"? Present laws did nothing to stop your cousin, right? You say TV ads wouldn't either, or indeed, nothing on earth. So what's the difference? That being the case, I'd rather spend money on stuff that might help instead of punishments that by your own example are doing little good.

Anonymous said...

"Smoking, while legal, has little to commend it"

Not according to smokers.

The same could be said about alcohol.

I've never meet anyone who quit drinking who regretted it

And I've never meet anyone who quit drinking who regretted it.

If the State can restrict smoking in order to save lives, why not can't it do the same for alcohol. A ban on public drinking would certainly save lives.

Anonymous said...

meant to say"

I've never meant anyone who quit smoking and regretted it.

Windypundit said...

Regarding the observation that "I've never meet anyone who quit drinking/smoking who regretted it," I think instead of the quitters, you should look at the starters. This is purely subjective, but my impression is that more people regret starting smoking than starting drinking. I know a lot of people who've been drinking moderately all their lives and have no regrets. But a lot of smokers seem to want to quit.

W. W Woodward said...

I respect your opinions and those of your wife even if I don’t always agree, and I’m sure your hearts are in the right place here, however the roads to Hell, Tyranny, and other unsavory places are paved with good intentions.

Any civil judgments, court costs, or additional taxes levied against alcoholic beverage producers will be passed on to the consumers as were the judgments, court costs, and taxes levied against the tobacco companies.

“ … a TV advertising ban similar to the one for cigarettes, such a strategy would aim not to punish individuals but to change the overall culture, she said, financing the idea with profits from the product that's causing the problem.”

If alcoholic beverage commercials are banned the NFL and NASCAR will have to rely upon tampon and laundry detergent commercials to stay afloat.

Smoking, imbibing alcoholic beverages, having unprotected sex, and riding motorcycles and/or bulls are personal choices and the person making the choice should be held responsible for his own decisions, actions, and the results thereof.

The state should not be expected to solve every problem that comes up by passing new laws that impact those who are not causing the problem, or requiring someone who is not in the decision making loop to pay for another’s improper, even if fatal, choices. My Gawd. The state is already dictating the capacity of our toilet tanks and the types of light bulbs we will be allowed to use in our homes.

Gritsforbreakfast said...

"the roads to Hell, Tyranny, and other unsavory places are paved with good intentions"

Funny Woody, that's how I'd describe our current approach to addiction related crime.

Anonymous said...

W. W Woodward,

Well said. I agree 100%. Bravo

Windypundit,

We could split hairs all day long about which is the more evil vice, drinking or smoking.

My point is they are both vices. And it's clear that the "anti's" are not going to stop with smoking but will move on to curb drinking as well. Here's an interesting article on the anti-drinkers: http://www2.potsdam.edu/hansondj/Controversies/1122492295.html

James said...

I doubt we'd need anti drinking laws if we had PRT (personal rapid transport) systems like SkyTran (Unimodal), maybe we should raise liquor and gas taxes to pay for it. The current MTS (mass transportation system) only serves a small percentage of the population and usually only during the busiest times. PRT would a 24/7 driver-less system reaching 95% of the population withing 10 walking minutes of their location. The real solution to drunk driving is to make it so that drunks don't need to drive. This would also reduce oil consumption considerably as an added benefit.

Anonymous said...

What stunk to high heaven about the tobacco lawsuits is that the states, who for years collected tax on tobacco--a piece of the action as it were--accept no responsibility for their own complicity before or after the suits were settled. And the feds subsidized the tobacco farmers as well.

Anonymous said...

Alcoholism is a disease and costs families much money. Increasing fines without rehabilitation will
only serve to help destroy our middle class. I agree that advertisements should be limited.
It was done with tobacco - movies glamorized smoking cigarettes. Drinking also appears to be the "cool" in thing to do. Stop the advertisements. Help our families. What is the point of assessing $3,000 to $5,000 worth of fines against an individual who makes $5,000 a year.

John_David_Galt said...

The importance of drunk driving as a problem is very debatable (especially given the very distorted way the feds force local police departments to gather and report the data). But even if it were a major problem, holding drink manufacturers liable is a completely stupid idea. If such an effort were successful, it would be comparable, both morally and in practical effect, to holding handgun makers liable when robbers misuse handguns, or holding McDonalds liable for Michael Moore's alleged inability to control his own eating habits.

In all three examples, a finding of liability would have the effect of forcing the product off the (legal) market completely, thereby unjustly depriving not only its makers but also the large number of people who use it responsibly. In addition, a black market would arise to supply the product, and the "problem users" of the product would represent a much larger fraction of the users than they do now (because those tend to be the people who would have a problem obeying the [effective] ban).

Please think twice before advocating (effective) Prohibition or any equivalent.

I would like to see a constitutional amendment requiring at least voter approval, preferably by a supermajority, before any court judgment can take effect which would effectively force a product or service to be taken off the market.

Gritsforbreakfast said...

Oh, please JDG - "prohibition"? Has tobacco been prohibited?

What I'm suggesting (or rather, what the missus suggested) isn't "prohibition," it's the equivalent of requiring a polluting industry to pay for "externalities," to use the economists' term, generated by their product.

Raising the price isn't "prohibition," just assigning a greater proportion of those indirect costs to the manufacturer. Last I saw cigarettes were available at about $6 per pack, increased substantially by the assignment of state Medicaid costs through civil litigation. However the black market puts a MUCH bigger surcharge than that on illegal products. E.g., high-end pot can cost $100-150 for a quarter ounce.

Bottom line: To the extent DWI is a problem that needs to be solved, arresting people once out of every 114 drunken trips fails to provide a deterrent, and increasing that proportion is impractical on any large scale. If assigning liability through the criminal justice system fails to provide societal relief, the civil side of the courthouse is and should be available, and I personally think it's reasonable to explore the idea of using the price system to assign costs instead of jails, at least in cases with no injury or property damage.

W. W Woodward said...

Let’s get rid of alcoholic beverages. Let’s get rid of firearms. Let’s get rid of tobacco products. Let’s get rid of knives. Let’s get rid of baseball bats. Let’s get rid of automobiles. Let’s get rid of any and all things that may be used to cause injury and/or death. Tax ‘em! Sue ‘em! Prohibit ‘em! Regulate ‘em!

Mommy, please protect me from evil. I’m not concerned about my freedom and rights. I’m definitely not concerned about your freedoms and rights.

You might ask, “What about the Constitution?” What about it? The constitution is nothing more than an inconvenient document anyway. Especially when we’re discussing someone’s rights – other than mine.

Anonymous said...

Judge Raymond Angelini (Bexar County 187TH District Court) had his DWI dismissed by the tipsy D.A. Susan Reed last week. Seems some evidence got lost? Might be a story to look at, since Reed and da Judge are BUDDIES!

Anonymous said...

When one leaves the bar after a night of drinking their JUDGEMENT is IMPAIRED! To what extent depends on how much they had to drink and over how long a period. It is also a fact that BAC can get higher as the remining alcohol is processd into the bloodstream after one stops drinking. To think that someone would actually use wise JUGDGEMENT after drinking is a joke! The decision cannot be left to someone who has impaired judgement. That would be like asking a mentally impaired person to take care of your finances, or make other life decisions for you.
You can figure that one drink per hour and you will PROBABLY be OK.
Bottom line: designate before you go to drink. The life you save may be your own!

Anonymous said...

W.W.Woodward

You forgot COMPUTERS!!!! They're the Devil's tool....

andrew123 said...

I guess I wonder what you disagree with or think is "nonsense"? Present laws did nothing to stop your cousin, right? You say TV ads wouldn't either, or indeed, nothing on earth.
==========================================
Andrew William

DUI

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Anonymous said...

The alcohol companies don't make people drive drunk. They don't even encourage it. I've never seen an alcohol ad that even subtly hints that drunk driving is fun, good, or anything positive. In fact I've some ads even emphasize not to drive drunk. There was one where a guy who didn't drink was handed the keys and he was the designated driver.

I think the civil side is important though. Send the drunk drivers to jail and then let their victims sue them for any damage, although that's already legal but suing drunk drivers for the harm they do should be encouraged even more.

Suing the alcohol companies for drunk driving makes as much sense as suing the automobile companies for drunk driving(notice that both products are required to commit that crime). I think the best way to deal with drunk driving would be to increase the availability of public transportation.

Aries said...

If things are getting out of hand,like say the number of DUI victims is increasing than we have to choose this option.

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Erik

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