A Stitch in Haste

A reader asked a good question regarding my previous DUI post:

"Why do we even need DUI laws?"

Well, technically we don't (which is not the same as saying that drunk driving would be legal). It's certainly feasible to incorporate drunk driving into other offenses, such as reckless driving, vehicular assault, reckless endangerment, etc. (Compare and contrast this "Driving While DVD-ing" story from Alaska, courtesy of Volokh.)

Of course, the same could be said for rape -- isn't it just another form of assualt? Why do we single out sexual assault for special treatment?

Obviously, the answer is public policy -- we have, as a citizenry (or however many collections of federalized citizenries), decided, through our democratic and legislative processes, to have penal codes that have a certain degree of refinement, specificity and depth. We distinguish between sexual assault and ordinary assault, between murder and manslaughter, and between prophylactic "reckless driving" and DUI.

Having said that, my previous thesis was this: On the civil side (i.e., private lawsuits), the majority rule in this country is that the simple act of consuming any alcohol whatsoever and then driving is per se negligence. What you did was unreasonable, and now you must face the consequences (i.e., damages to the injured defendant). No different from any other tortious act.

(Radley seems to disagree on this point and believes that there should be some "reasonable" level of intoxication for driving. Well, that's a minority view and he's certainly entitled to it.)

But anyway, to the extent that we even have BAC limits for criminal DUI convictions, the drunk driver is ahead of the game relative to civil liability. The same holds true regarding issues such as loss of driving privileges, economic costs, etc. The moment you get behind the wheel intoxicated, you have broken the law. To complain about the penalties after the fact (the whole theme of the WaPo article) is, in my opinion, disingenuous and unpersuasive.

I am NOT, however, denying that there are abuses, such as some of those raised in Balko's Cato piece, (especially rules that blur the distinction between arrest and conviction), or that there can be unwise pre-emptive policies, such as requiring "blowmobiles."

My point is only this: when you drive, sober or otherwise, you are hurling a multi-ton slab of metal down public roads at potentially fatal speeds. You can't simply dumb down to hyper-libertarianism in such a setting.

Now about those Rockefeller Laws...