Saturday, June 28, 2008

DWI: A social problem masquerading as a crime wave?

A fascinating discussion is underway in the legal blawgosphere regarding DWI, the threat it creates, and whether criminal sanctions are an appropriate response.

Our pal Mark Bennett in Houston began the fray with a discussion of when it's appropriate to refuse a breathalyzer test, concluding there are only two circumstances when you should say "No": When you're guilty, and when you're innocent. (This advice, I should mention, is not universally popular, at least among the folks trying to score convictions.) The main reason to refuse if you're sober, says Bennett, is the possibility of false positives: The error rate on the commonly used Intoxilyzer 5000, he says, is an astonishing plus or minus 25%! That would make breath tests one of the least reliable of the commonly used forensic tests.

Going further in another post, Bennett (accurately if controversially) observed that in the vast, vast majority of cases DWI is a victimless crime. Fort Worth attorney Shawn Matlock really threw down the gauntlet though with the clam that DWI shouldn't be a "crime" at all. As WindyPundit summarized Matlock's position, "when someone gets a DUI, nearly all the legal action is about suspending their license and taking their money. Why not just finish the process and remove the criminal aspect completely?"

Scott Greenfield chimed in to say he thinks Matlock went too far, that DWI should be a crime. But I can certainly see the reasoning behind Matlock's argument, at least for criminalizing DWI only after multiple offenses or if injury or property damage result. After all, non-drunk drivers kill more people than drunk ones; not every risk denotes a criminal act. The current approach treats defendants as cash cows with little regard for prevention. Why not just do away with the pretense?

Windy and Bennett each followed up with statistical explications of the risks from DWI, though for reasons discussed in the comments at Bennett's shop, I don't think they've quite yet identified the data needed to get to a reliable number. Windy concludes from the exercise, "So, don't drive drunk, and don't let friends drive drunk. But if you or your friend happen to drive drunk one night, don't sweat it too much." (!)

This discussion raises a number of fascinating questions to which I don't know the answers (and probably no one does). For starters, what options besides criminal sanctions might reduce DWI, potentially at a lesser cost? How about expanding public transportation? Or maybe taxing alcohol to fund a program of rides home from bars? As with cigarette smoking (which has declined more than drunk driving over a comparable period), TV ads might be more effective at reducing drunk driving than anything a cop can do.

Another question: How much do criminal sanctions deter drunk driving? Punishment only prevents wrongdoing if its certainly applied. In the case of drunk driving, where Bennett estimates officers arrest one drunk driver out of every 114 trips, most drunk driving brings no penalty and thus likely little deterrent. (As Matlock emphasizes, most offenders are more worried about their license suspension than any criminal culpability.)

How much do current DWI laws cost to enforce? It's hard to tell because costs are divvied up among all sorts of state, county and municipal jurisdictions, with some occasional federal money thrown in to boot. (A back of the napkin estimate indicates Texas spends between $80-100 million per year on prison for felony DWIs alone; most DWIs, however, are misdemeanors handled at the county level.) Given the limited deterrence factor of one arrest per 114 drunken trips, would we see a greater reduction in drunk driving if the same resources went to non-punitive means of reducing drunk driving? Maybe.

If DWI is worth deterring as a public policy then it's worth paying to deter. Indeed, we're already paying some unknown amount on a pure enforcement approach that yields limited results. Is criminalizing DWI the best way to go, or does the tactic soak up money that could be used for more effective approaches?


Anonymous said...

You failed to calculate the cost of jail and prison time in lost wages and related taxes. What about the cost to families who have to come up with bond money and live on welfare while the wage earner in incarcerated?

What about the cost of "he's got an arrest record" so he must be guilty!

Alcholism is a desease and needs to be treated, not punished.

angrystan said...

If the objective of drunk-driving enforcement were public safety, we would see the various police forces praising the success of this program and applying these tactics to other perceived social ills.

As it is, the standards are continuously dropped as just plain folks become increasingly aware, not of the danger to self and others, but to the danger to their home and family presented by the state.

The new evil, if they can get anyone to go for it, is drowsyness and God help you if you can't establish your sleeping schedule in a court of law.

Not to mention the innate evil of such enforcement actions in a society in which automobile ownership and operation is for all points and purposes mandatory.

TxBluesMan said...

I personally wouldn't take a breath or blood test - and would try to beat the license suspension hearing.

The police, at least in the North Texas area, have started to take action to avoid the problem. This past New Years Eve, Ft Worth had a judge on hand and for each person that declined to take a breath or blood test, the judge issued a search warrant to seize blood.

I see this as being more and more common, especially since the criminal defense bar is pushing their clients to refuse a breath test.

Anonymous said...

Someone wrote a book (sorry I don't have a cite) that discussed most of what has been covered so far. One of the points the author made is that DWI is covered by reckless driving and as already noted vehicular homicide is not DWI.

The authors question were;
1) if reckless driving covers DWI why do we need a separate DWI crime?
2) Why is sitting or sleeping in a car while intoxicated a crime?
3) Why is driving slowly along the shoulder with your flashers on considered impaired driving?

Enhancement of DWI penalties seem to be incident driven when the incident is a car full of teenagers involved in a horrific accident because of an intoxicated driver.

Anonymous said...


Anonymous said...

I was recently pulled over by a DPS trooper following a dinner date. I had one glass of wine ( a very rare occassion) with in a four hour peroid. Knowing that a breathalizer can produce false positives, I refused the breathalizer. Of course, I was cuffed, my car was impounded and I was carted off to jail. I have no prior's... not so much a a traffic ticket. The experience was sureal.
Yep... the full court press... mugshot and the whole works!
Here is how innocent people end up with a record, that could potentially ruin their entire lives; They offered me a reduced charge of "fleeing from the police."
I am in my senior year at a university finishing up my degree in behavioral science and a minor in criminal justice. Can you imagine be ever getting a job with "fleeing from police" on my record?
Talk about ruining people's lives!

Anonymous said...

Civil forfeiture of the automobile would solve these problems.

Drink. Drive. Lose your car.

Bansk wouldn't much care for such a policy.

Anonymous said...

I have a friend that was arrested for DWI and refused a breathalyzer. The police ended up getting a warrant to have his blood drawn against his consent. So the government, if they so desire, can get a warrant, stick a needle in you, and draw your blood. That's disturbing.

Anonymous said...

I agree with the college senior I to was stopped that way the whole ordeal was insane, just being in the DC jail was scary being around so many sick people think about the expose. It took forever to get even though I paid the bond and how it has been a year and a half and I still have not had my day in court I have spent 8,000.00 and will pay another 5 if we have a hearing all this for a over zelous cop who thinks he knows how to spot drunks.

Anonymous said...

I call bullshit on the one glass of wine in four hours.