A Stitch in Haste

Radley Balko has yet another piece in which he attempts to carve out a “right” to drink and drive:

When President Clinton signed a law in 2000 that lowered the federal blood-alcohol limit for drivers to .08, opponents pointed out that the effect of such a law would be to tie up law enforcement resources going after motorists between .08 and .10, motorists who studies show are no more impaired than someone talking on a cell phone, or who has kids in the back seat.

First, the cell phone study Balko is probably thinking of is bunk, as I pointed out in a previous post. Second, does a cop get tied up enforcing the law “only” as it applies to those with BAC between 0.08 and 0.10? Balko seems to suggest that roadblocks “only” stop those “less drunk” drivers and not the “really drunk” drivers, but of course that’s nonsense.

But more important is Balko’s rather fast and furious use of non sequitur reasoning. Of course havng a more restrictive law “consumes more law enforcement resources” -- so what?

Balko is engaging in a bait-and-switch. There is a difference between arguing that a law is “wrong” (i.e., an affront to libertarian principles) and arguing that it’s “bad” (i.e., an affront to economics). Balko is so desperate to prove the former that he cheats by invoking the latter and then summarily pronouncing “our civil liberties are being carved up!”

Consider my favorite analogy to DUI -- dog leash laws. There is absolutely zero enforcement of the leash law along Diamond’s favorite promenade. If the city decides to deploy one police officer to patrol the promenade eight hours a day, then the simple doctrine of opportunity cost dictates that yes, that cop is now not out performing some other law enforcement activity (this assumes of course a fixed supply of “law enforcement,” which itself is an unrealistic assumption by Balko). But again -- so what? If the leash law is a good idea, and if enforcing it is a good idea (i.e., if the opporunity cost of the cop is less than the benefit of the cop’s presence), then the cop should be there. But that analysis has absolutely nothing to do with whether the leash law is “wrong.” I don’t think anyone would argue that it is.

As I’ve blogged previously, there is no right to drink and drive, so no law that deters or punishes drinking and driving can summarily be deemed “wrong.” Inefficient -- perhaps. Expensive -- perhaps. But these laws are not infringements on fundamental liberties and cannot be decried on that basis alone.

Back to dogs: having an unleashed dog in public is per se reckless behavior. There is no “constitutional right” to have an unleashed dog in a public space (compare: in the privacy of your own home, almost anything goes). But no dog owner has the right to subsititute her judgment for society’s over whether her dog is or is not a threat or safety hazard to others (i.e., to impose externalities on her neighbors). Society has objectively decided that any unleashed dog is a safety hazard and reserves the right to proscribe unleashed dogs and to punish lawbreakers. How best to enforce that law -- with no police (probably too little), one officer (probably optimal), or one hundred officers (probably inefficient) -- has absolutely nothing to do with whether the law itself is proper; it undeniably is.

Drinking in any quantity whatsoever and then driving is likewise per se reckless behavior, as defined by the objective “reasonable person standard” prevalent in our tort law. It imposes externalities in the form of probabilistic harm (i.e., the increased risk of accident or injury), which the drinking driver has no right to impose on others using public roads based on his personal, subjective conclusion that “just two beers” is no big deal for him. Perhaps a 0.08 BAC enforcement is optimal, or perhaps 0.10 is. Perhaps ubiquitous roadblocks are optimal, perhaps they’re too expensive. I applaud Balko or anyone else who wants to do that math -- assuming they do it honestly. I don’t think Balko does. And skip the “civil liberties” screed -- it’s facially invalid.

More:

Roadblocks are by design intended to catch those motorists who may be a hair above the newly-lowered legal limit, but aren't driving erratically enough to get caught by cops on routine patrol.

Um, no. The roadblocks are there to catch those who are breaking the law. It’s not about BAC; it’s about drinking and driving. Erratic or no, drinking impairs one’s ability to drive, which increases the probability of the drinking driver causing, worsening, or failing to avoid an accident. That’s illegal, with or without BAC measurements. Call it reckless endangerment, call it public intoxication, call ir criminal mischief -- it doesn’t matter. The overlay offense of “DUI” based on BAC is simply a way to make the enforcement of the underlying criminal recklessness easier (and, contrary to Balko’s assertion, cheaper). The refusal to recognize this fact runs through all Balko’s writings on this subject.

If we look at "fatalities" instead of "accidents," drivers with a BAC above .10 account for 77% of the alcohol-related body count. And the average BAC in fatal accidents involving alcohol is .17. Put another way, motorists with very high blood-alcohol levels account for an increasing percentage of highway fatalities, but a decreasing percentage of arrests. Clearly, we're allocating limited law enforcement resources toward the wrong pool of offenders.

But why should we only concern ourselves only with fatalities? Plain old accidents don’t count? Injuries don’t count? Fender-benders don’t count? Lies, damn lies, and…

This is classic post hoc ergo propter hoc. It assumes, inter alia, that law enforcement resources are not “limited” but actually fixed -- that every cop at a roadblock is a cop that would have been chasing down hardcore drunk drivers. This is a blatant fallacy. In fact, it actually assumes that there are also no possible alternative explanations for changing DUI trends -- maybe liquor is cheaper, who knows? Balko assumes “all else being equal,” but all else is never equal.

I do think there is some validity in Balko’s point that there is a difference between the “hardcore” drunk driver and the “just two beers” crowd. But that doesn’t change the fact that having “just two beers” and then driving is still illegal, and for good reason. Laws that seek to make people fully consider the risks they impose on others and that internalize externalities, cannot be dismissed as "wrong." Again, they may be "bad" (i.e., inefficient), but that is not the same as “wrong.”

It's time for some common sense in impaired driving policy. We need laws that draw on science and statistics, not hysteria. In an effort to get "get tough" on drunken driving, lawmakers are not only needlessly carving into our civil liberties, they're actually making our highways and roads more dangerous than they were before.

Again, I applaud any attempt to expose bad laws, those that are inefficient and expensive; it's the libertarian thing to do. But Balko doesn't practice what he preaches. Engaging in such analysis, in statistically dubious ways, as a front to really argue that there is some fundamental constitutional right to “just two beers” (i.e., that BAC laws are not bad, but wrong) is exactly the kind of radicalism that drives real-word people away from libertarianism. It confuses "wrong" with "bad." And that's both wrong and bad.

Related Posts:
Tobias Beecher: Criminal or Victim?
My DUI "Convictions"
DUI v. Cell-Phones: Don't Go There
Should Alcohol Be Banned from Stadiums?
The Libertarian Case for DUI Laws