A Stitch in Haste

Pathetic boo-hoo article in the Washington Post about how shocked, shocked, people are at the costs of DUI convictions:

As Virginia and other states across the country tighten laws against DUI offenses, the legal ramifications of an arrest are becoming more serious and more predictable. But the personal fallout is harder to measure.
...
Many who received a DUI conviction said its huge financial costs and burdensome restrictions upended their lives.
...
Nearly a year after her arrest, [one interviewed DUI convict] has admitted she made a mistake, yet she still can't believe her single drink was excessive.
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"They look at me like I'm an alcoholic," she said. "Everyone looks at me like I'm a criminal." (SIC!!!)

Some first-time offenders said they drank too much because of an emotional crisis, then were caught driving while in that condition. (So what?!?)
...
The typical cost of drinking and driving in Virginia ranges from $5,000 to $20,000, according to a 2003 study by the Thomas Jefferson Community Criminal Justice Board in Charlottesville, a group of law enforcement officials.

In addition to attorney and court fees, drunk drivers usually have to pay for car towing, restricted licenses and reinstatement of their regular licenses.
...
Pat Bowman, a counselor at the Fairfax Alcohol Safety Action Program, often asks those in the program, most of them professionals, to list the time and the money they have spent since their arrest. It averages more than $10,000.

"It's amazing," she said. "They could have taken a cab for $50."

I might be a libertarian, but I'm not that much of a libertarian. If you drink, and you drive, and you get caught -- well, too bad! Stop whining.

More at the Permalink!
Oh, but Kip, you're the one always blogging about cost-benefit analysis? (An example here.) Can't we be too stringent in imposing legal limits? What about all the cab fare, missed functions, lost productivity, broken marriages, etc., from basically upright citizens who had "just that one cognac and Coke" and whose BAC was "just a smidgen" above the legal limit?

Too bad. Don't drink and drive -- period. Zero tolerance, end of discussion.

Imagine the response if someone tried the same argument with drinking while pregnant. No reasonable person would tolerate for a moment any kind of "cost-benefit analysis" to the expecting mother who is contemplating "just that one cognac and Coke."

Too bad. Don't drink while pregnant -- period. Zero tolerance, end of discussion.

The exact same analysis for the exact same reasons -- and with the exact same conclusion.

To put the analysis in strictly economic terms (which, unfortunately, both economists and lawyers have to do all the time): Sometimes corner solutions are optimal.

Zero tolerance for drunk driving is such a case.

Compare and contrast the criminal approach to drunk driving to the civil approach (i.e., suing someone for negligence). In any tort, liability is an absolute -- yes or no, did you do it? (There are a handful of slightly more complicated examples -- joint liability, vicarious liability, etc., but they don't affect my thesis here). The majority opinion in tort law is that driving after any alcohol consumption whatsoever is per se negligence (i.e., patently and unconditionally unreasonable behavior).

Why should criminal law be any different?

P.S. Don't know who Tobias Beecher is? Click here.

UPDATE #1: Balko disagrees with me. He's wrong.

UPDATE #2: Overlawyered.com follows up, as I failed to, on the response to the original WaPo article and has some links. I'm unpersuaded. See also my subsequent post on the subject here.

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...

Alex Tabarrok at Marginal Revolution has a provocative post about this study (pdf file) that "found" that people who use cell phones while driving are more impaired than those who drink and drive.

Now before the hyper-anarcho-libertarians (you know who you are) jump all over the study, allow me some hasty-stitchy observations:

1. Limited sample size (41 subjects).
2. The simulator only replicated daytime driving conditions (drunk driving tends to occur at night).
3. The simulator only replicated a "multilane interstate highway" (again, most drunk driving happens on local or even residential roads).
4. Any study that uses a simulator suffers from observation bias (i.e., the subjects know they're being observed and know that it's only a simulation, therefore their behavior is inevitably altered, even if only subconsciously, by the simulation itself).

My previous posts (here and here) on DUI laws sparked some controversy, but my basic premise holds -- if you believe it is conceptually permissible to criminalize sufficiently reckless conduct before there is a clearly-identifiable "victim" (i.e., if "reckless endangerment" is a valid crime) then you cannot argue, on philosophical grounds alone, that DUI laws are in any way an affront to libertarian principles. You can argue that they're inefficient, unfairly applied, costly, etc., but the same can always be argued about any particular law in any particular context.

But if you want to argue that all DUI laws are inherently "just plain wrong," in the sense that drug prohibition is "just plain wrong" or the draft is "just plain wrong" or smoking bans are "just plain wrong," then you need to do more than throw a temper tantrum, which tends to be the preferred form of argument on this issue.

(Guest-posted earlier today at Freespace.)

Every day I take Master and Commander for our daily exercise along the East River Walk. This promenade is a (very) slender strip of "greenspace" (there's far more asphalt than grass) for walking, jogging, bicycling, etc. Dogs are welcome on the promenade, but New York City's leash law is in effect at all points along the strip (there are off-leash dog runs at either end of the 30-block-long path).

All along the promenade itself are very clear signs:

In the late morning, when I used to walk Diamond (I worked nights until recently), we would, on average, encounter three or four unleashed dogs on the promenade, in only a ten-block stretch lasting perhaps 25 minutes. It was an extremely rare day that we would not encounter at least one unleashed dog. Again, the promenade is an extremely narrow lane, at some points sometimes only wide enough, literally, for one person. But that doesn't stop scofflaws from intentionally disregarding the leash law and letting their pets roam uncontrolled.

Question for the lawyer and law student Freespacers: Why do we have leash laws? Answer: It's a straightforward safety statute, arguably the most primal type of law.

Question for the economist Freespacers: Why do we have leash laws? Answer: Unleashed dogs generate negative externalities. These externalities cannot practically or efficiently be internalized. In order to maximize social welfare, the optimal approach is a "corner solution" -- i.e., zero-tolerance prohibition. Stated differently, society -- using traditional cost-benefit analysis -- has determined that the private benefits (whatever they may be) can never outweigh the social costs imposed by allowing dogs to be off-leash in public spaces.

Coming back to the lawyers: What is the typical standard for civil liability in most jurisdictions regarding damage or injury by animals? Answer: Strict liability, not negligence. (Alternatively, one can argue negligence per se for violating a safety statute, which for our purposes yields the same result.) This is just the legal mirror-image of the economist's answer: zero tolerance.

Ask the owner of an unleashed dog on the East River Walk why she willfully disregards the leash law, and she'll say -- well, generally what they say is not fit for publication (we are New Yorkers, after all). Seriously though, they'll typically say something like "my dog isn't vicious." Or, to elaborate: "I know my dog better than you or the city do. It should therefore be my decision, not society's, whether to impose on others the risk (which I deem negligible) of disregarding this safety statute. If and when I turn out to be wrong and my dog causes harm, then I will of course be responsible. But unless and until I have imposed "real" harm on others, I should be free to make my own decisions as to what risks are acceptable regarding my conduct. The leash law punishes me before any "real" crime has been committed and before anyone has been harmed. The law is therefore inconsistent with the principles of a free society and I am morally entitled to oppose it and even to disobey it.

This is, of course, utter nonsense.

Yet this is exactly the reasoning posited by most libertarian opponents of DUI laws. Such libertarians are misguided in their opposition. (By "DUI law" I mean strict liability crimes based on exceeding a certain blood alcohol content, even without observed evidence of actual "impaired" driving.) Examples:

[T]hat you don't have to be "drunk" to be in violation of the law is part of the problem, isn't it? The whole purpose of roadblocks is to catch people who aren't driving erratically enough to be noticed and stopped by cops. But if they aren't driving erratically enough to be stopped by cops, then maybe they really aren't such a danger, are they? (Source.)

Every day when I was a prosecutor I saw drunk driving defendants in court who had not caused any accident, injury, or property damage, facing devastating criminal penalties merely for driving with an unlawful blood alcohol content (BAC). (Source.)

I think you guys are blurring the distinction between driving DRUNK and drinking and driving. One is illegal and the other isn't. But we're taught to think they're equally bad. (Source.)

Zero tolerance has nothing to do with drunk driving. We don't need zero tolerance to combat drunk driving, because the drunk driving laws already make that conduct a crime. Zero tolerance was designed to penalize drivers who are not drunk... (Source.)

What precisely is being criminalized? Not bad driving. Not destruction of property. Not the taking of human life or reckless endangerment. The crime is having the wrong substance in your blood. Yet it is possible, in fact, to have this substance in your blood, even while driving, and not commit anything like what has been traditionally called a crime. (Source.

What all these hyper-anarcho-libertarians are forgetting is that not all harms are post hoc, physically manifested harms (e.g., actually crashing into another vehicle). The very act of drinking and driving imposes a probabilistic harm (i.e., a risk). That harm, that risk, is just as real, just as costly and just as deserving of criminal prohibition as post hoc harm. Moreover, the probability is objective (i.e., as measured by society, or the "reasonable person"), not subjective (i.e., as measured by the drinker).

Just as my Upper East Side neighbor has no right to replace society's judgment about her dog's potential danger with her own judgment (even if "better informed"), so too does the drinker have no basis to argue that his own subjective judgment to have "just two beers" should replace society's cost-benefit analysis finding that zero tolerance is the efficient solution.

In tort law, meanwhile, strict liability also attaches to "ultrahazardous activities." DUI laws merely reflect, one could argue, society's determination via the criminal law that drinking and driving rises to the level of "ultrahazardous activity." Unlike blasting with dynamite or running a nuclear reactor, however, drinking and driving is not a productive endeavor, but rather a consumptive act, and is therefore arguably even more susceptible to criminal prohibition than hornbook "ultrahazardous activities."

But even if you have a problem borrowing from private (tort) law to justify a public (criminal) law, you don't have to do so. It just makes the analysis easier. Think back to first-year criminal law -- why do we even have it? Two basic reasons: retributivism and deterrence. How is a strict liability DUI law inconsistent with either goal? Clearly DUI laws serve a deterrent function. As for retributivism: as I describe above, society is entitled to "punish" the DUI driver for the probabilistic harm -- the risk -- that he has in fact imposed, even if that harm never physically manifests via an accident or injury. Criminal law punishes for harm done. The DUI driver, simply by drinking and driving, has caused harm. It is therefore entirely proper, even to a libertarian, to punish him for that harm.

And for those obsessed with physically manifested harm, consider the very real harms imposed by drinking any amount of alcohol and then driving. When I'm walking Diamond and an unleashed dog approaches, I now have to pause and ponder: is this dog vicious? Fixed? Too playful for the narrow confines of the Walk? If the owner is so careless regarding the leash law, then why should I think she's responsible about vaccinations, or flea & tick control? Even if the dog is "harmless," I have already been harmed. I have to worry about the other owner and the soundness of her judgment. I have to adjust my behavior in response to her unreasonable behavior. My leisure time is diminished by her conduct, which is neither objectively reasonable nor privileged nor excused. How is it wrong to criminalize such harmful conduct, and how is the DUI analogy any different? Maybe you can in fact handle "just two beers" and drive home safely -- but why should I have to worry about it? Maybe you'll cause an accident, maybe not. Either way, every other driver on the road has already been harmed simply by your engaging in the conduct.

(I presume incidentally that no extensive discussion of criminal intent is necessary here. As with tort law, intent can mean the "intent to perform the act" -- i.e., to drink and then drive -- and does not require "intent to harm." I suppose there can be a hypothetical "involuntary intoxication" defense to DUI, but such a bizarre fact pattern is not fatal to my thesis.)

I am of course not saying that any and all anti-drunk-driving laws are automatically consistent with libertarian principles, or that they're effective, constitutional or even sane. There are several extreme laws that unacceptably infringe upon protections regarding search and seizure, self-incrimination, the right of jury trial, property rights, parental rights and other personal freedoms. My focus in this post is only on the straightforward strict liability criminalization of driving with a certain blood-alcohol content.

Diamond weighs 5o pounds, can maybe reach 15 miles per hour and has no locking jaw. When you drive, you are hurling a multi-ton slab of metal down public roads at potentially fatal speeds. Can it really make sense to have strict liability offenses for an unleashed dog but not for DUI?

Zero-tolerance BAC offenses are consistent with the nature of harm being addressed, accurately reflect the economics of the offender, his actions and his surroundings, and -- without more -- do not offend any bona fide notions of personal liberty. They are therefore wholly consistent with a libertarian worldview.

POST SCRIPT: Some may ask how it can be that so many unleashed dogs are romping around this public space. Simple: there is absolutely no law enforcement on the Walk whatsoever. I have walked that promenade literally hundreds of times, at all hours of the day and night, every day of the week, during all seasons and weather conditions. And never -- not once -- have I ever seen a police officer, park official or Humane Law Enforcement representative. How remarkable that the center of human civilization can have, right in its core, a small little state of nature. Go figure.

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

The Washington Post has a sob piece about a woman who drank and drove and got busted for — surprise — drinking and driving:

Debra Bolton had a glass of red wine with dinner. That's what she told the police officer who pulled her over. That's what the Intoxilyzer 5000 breath test indicated — .03, comfortably below the legal limit.

She had been pulled over in Georgetown about 12:30 a.m. for driving without headlights. She apologized and explained that the parking attendant must have turned off her vehicle's automatic-light feature.

Bolton thought she might get a ticket. Instead, she was handcuffed, searched, arrested, put in a jail cell until 4:30 a.m. and charged with driving under the influence of alcohol.
...
"I think it would have been fine if I'd done something wrong, but I didn't," she said. "I had a glass of wine with dinner."

This is, of course, utter nonsense.

Stories like this pop up every so often, and supposed libertarians get amazingly upset over it.

And I can never understand why.

Establishing a blood alcohol content ("BAC") threshold for DUI offenses does not imply that any BAC below that threshold becomes a safe harbor or is "no big deal." People are not (or should not be) allowed to game the system by guesstimating how much illegal drinking and driving they can get away with before they face criminal penalties.

The very conduct of drinking — in any amount — and driving is not only reckless behavior (in the tortious liability sense) but also criminal behavior. The offense is not "driving with a BAC over 0.8" but rather "driving under the influence."

This is not to suggest that the government is entitled to become as totalitarian as it wants simply because "drunk driving is bad."

If your complaint is that breathalyzers are unreliable at such low tolerances and give too many false positives, then fine — that's a legitimate issue.

If your complaint is that "DUI Mania" leads to dubious practices such as suspicionless searches and random roadblocks that are not only ineffective but also constitutionally suspect, then fine — that's a legitimate issue (though not in the case of Ms. Bolton from the WaPo story — she was pulled over quite properly for an unrelated infraction).

But if your complaint is that DUI laws deprive you of your supposed constitutional right to have "just two beers" or "just one glass" and then hurl a multi-ton slab of metal down public roads at lethal speeds, then you have exceeded the threshold of logic and are no longer driving while libertarian.

Hat tip to Another Gay Republican.

Is there to be no objective reasonable-person test for recklessness, but rather a random, unpredictable, "I know it when I see it" approach?

Speeding is not necessarily reckless, even at 128 mph, a judge ruled in the case of a motorcyclist who tried to flee from state troopers.

With some reluctance, [Otoe County, Nebraska] Judge John Steinheider ruled last week that Jacob H. Carman, 20, was not guilty of reckless driving on Sept. 5, when he was spotted by a trooper who then chased him at the top speed of his cruiser's odometer — 128 mph.

"As much as it pains me to do it, speed and speed alone is not sufficient to establish reckless driving," the judge told Carman on Friday. "If you had had a passenger, there would be no question of conviction. If there had been other cars on the roadway, if you would've went into the wrong lane or anything, I would have convicted you."

Then again, in an era where an increasing number of drinking-and-driving apologists insist that there is some sort of "right" to have "just one glass" and then hurl a multi-ton slab of metal down public roads at potentially lethal speeds, I guess I shouldn't be surprised when other absurdities such as this are embraced.

The anti-DUI radicals who believe that there is a constitutional right to "just two beers" will likely love this:

Public safety officials in Mexico City last week announced that they would suspend the capital's drunk driving vigilance program for the nights of Christmas Eve and New Year's Eve.
...
The suspension of drunk-driving vigilance for Christmas and New Year's celebrations is a tradition in the capital, where the practice is known as a "noche libre," or "free night."

And while the idea has its critics, city officials point to statistics to defend the practice. Last Christmas Eve, when drunk drivers were also given a "free night," there were three fatal car accidents, and on New Year's Eve there were two. The average day in the capital sees four fatal accidents, according to the Public Safety Secretariat.

But of course, Christmas Eve and New Year's Eve are not "average nights," so the comparison is invalid -- and potentially lethal.

Certainly overall driving in Mexico City drops noticeably on Christmas Eve and New Year's Eve, so the fact that fatalities also decline is irrelevant. Just as a hypothetical: if noche libre traffic declines 50% and fatalities decline 25%, then that means that noche libre driving is indeed more dangerous and that waiving drunk driving vigilance is indeed more likely to kill. And in any case, a sample size of one is not a reliable statistical analysis. And neither are analyses of minute discrete quantities such as "two, three or four crashes."

But so what? A party's a party, right?

(Via Fark.)

POST SCRIPT: Believe it or not, I've blogged about driving in Mexico City before.

Because I am not willing to condemn zero-tolerance DUI laws (i.e., I do not recognize a right to "just two beers"), I'm occasionally accused of, for lack of a better term, "being soft on being soft on DUI" (i.e., not being sufficiently libertarian in opposing "draconian" DUI laws).

Not so. I just think it's hard to be a hyper-anarcho-libertarian when you're talking about hurling a multi-ton slab of metal down public roads at potentially lethal speeds.

But when you're not talking about hurling a multi-ton slab of metal down public roads at potentially lethal speeds, I'm as indignant as any libertarian:

A teenager was arrested for drink driving when he hopped onto a child's buggy for a prank.

Anthony Ware, 19, [of Wales, U.K.] only drove the yellow electric dune buggy a few yards before it toppled over on top of him. But police were watching his drunken antics and breathalysed him on the spot.

A court heard the buggy is a children's toy, but it is classified as a vehicle because it has an electric motor. Prosecutor Andrew Smith told how police saw the plastic dune buggy zig-zagging down the road at 10.45pm.
...
The buggy — which has a top speed of 18mph — was a £400 Christmas present bought for one of Ware's friend's children.

I mean really now, come on, you can't be serious. Even MADD should oppose this frivolous prosecution.

When it comes to DUI laws It's either about public safety or it's about something else (e.g., collecting fines). And prosecutorial harassment of a teenager over horseplay with a kid's toy is not about public safety. Cut the guy some slack, maybe slap him with a ticket for public intoxication (as opposed to DUI) and cut him loose.

(Via Fark.)

Representative Patrick Kennedy admits he was voluntarily intoxicated when he crashed his car, supposedly on his way to a House vote at 2:30 in the morning:

Rep. Patrick Kennedy says he'd taken a prescription anti-nausea drug that can cause drowsiness, but consumed no alcohol, before crashing his car near the Capitol.
...
Kennedy said that after working Wednesday evening he went home and took "prescribed" amounts of Phenergan and Ambien, another drug that he sometimes takes to fall asleep.

This is what happens when people, including libertarians, start worshiping at the false god of blood alcohol content, as I've tried to explain repeatedly.

"Intoxicated" is not synonymous with "drunk." "Intoxicated" means, well, in-toxic-ated: that there is stuff in your body that shouldn't normally be there, and that causes you to be in a state other than your normal self.

Taking a sleep-inducing prescription drug and getting behind the wheel is not only criminal negligence, it's criminal recklessness — all voluntary intoxication is per se recklessness, at least under the Model Penal Code.

But Kennedy's blood alcohol content would have been zero (assuming he's telling the truth). And blood alcohol content is increasingly all that many people, including many libertarians, seem to care about anymore. They don't seem to care about actual risks. They don't seem to care about actual conduct. All they care about is their "right" to a personal, subjective standard of conduct rather than the objective, reasonable person standard that prevails throughout all other branches of the law — their "right" to have just two beers, or just two Ambien. To many libertarians, BAC is to be treated not as a floor (i.e., a sufficient condition to show impairment), but as a ceiling (i.e., a safe harbor beneath which any and all conduct is excused, because you're "not too drunk").

Meanwhile, the fact that we are talking about hurling a multi-ton slab of metal down public roads at potentially lethal speeds somehow gets lost in the debate.

Any libertarian who condemns Kennedy's pathetic conduct, while at the same time denouncing zero-tolerance DUI laws, is intellectually inconsistent and, arguably, a hypocrite.

I always get into trouble when I blog about DUI laws. It seems that suggesting any curbs on the right to hurl multi-ton slabs of metal down public roads at lethal speeds immediately revokes your libertarian credentials in some circles.

Richard Posner sums up the libertarian argument as succinctly as anyone I've ever seen:

Why punish the 99+ percent of drunk driving that is harmless?

Would that it were so simple.

Posner's counterpart, Gary Becker, has it exactly right:

But drunk drivers often kill or injure persons in other cars, or pedestrians, and in this way they impose what are called negative externalities on these innocent victims. This is the main case for public policies to reduce drunk driving and other externality-causing driving behavior.

Precisely. Most people, including most libertarians, gladly acknowledge in every other context the rights-based principle that reckless conduct is properly proscribable when such conduct generates clearly observable and quantifiable negative externalities. But apply that premise to the context of people's cars, and suddenly we live in a dystopic tyranny.

Here's the comment I left at Posner's post:

It seems to me that Judge Posner is arguing against the very propriety of "reckless endangerment" as a broad category of crime.

Whom do I harm if I let my large dog run around public spaces off leash? So why have leash laws at all and not just punish post facto dog bites instead?

Whom do I harm if I frolic down the street brandishing a loaded firearm? So why make that an offense unless and until the weapon accidentally goes off and harms person or property?

Whom do I harm if I drive drunk? Same analysis, same absurd result.

There is no "right to just two beers." Imposing harm, even probabilistic harm, on others is grounds to curtail the behavior that generates the harm. Particular laws may, either facially or as applied, be too harsh or too lenient, well-reasoned or ill-advised. But to dismiss any and all DUI laws outright and a priori crosses the line between libertarianism and anarchism.

To review: My defense of strict DUI laws that many of my fellow libertarians consider oppressive has always been based a simple premise: There is no right to recklessly hurl multi-ton slabs of metal down public roads at potential lethal speeds. Our profanity-laced infighting mature, reasoned debate usually centers on our divergent definitions of "recklessly." Fair enough.

But what about when no public roads are involved?

It's not drunken driving in New Jersey if it involves a Zamboni.

A judge ruled the four-ton ice rink-grooming machines aren't motor vehicles because they aren't usable on highways and can't carry passengers.

Zamboni operator John Peragallo had been charged with drunken driving in 2005 after a fellow employee at the Mennen Sports Arena in Morristown told police the machine was speeding and nearly crashed into the boards.

Sounds about right. Of course, the rink owners may have a civil action if Peragallo damaged the machine or the premises, and one could conceive criminal violations of one form or another. But DUI as near-universally understood simply could not apply to this fact pattern. Score one for activist judges.

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And what about when no multi-ton slabs of metal are involved?

A woman who went for a horseback ride through town at midnight and allegedly used the horse to ram a police car was charged with driving under the influence and drug offenses, police said Tuesday.

"Cars were passing by having to avoid it, and almost hitting the horse," said Police Chief Brad Gregg.

He said DUI charges can apply even when the vehicle has four legs instead of wheels.

Oh really? I'd need to see the text of the statute but I'd be hard-pressed to imagine such a statute that does not use the word "vehicle." A horse is not a vehicle. Words have meaning.

Which is not to say that she should not be charged with any crime. Reckless endangerment, of which DUI laws are merely a subset, surely ought to be applicable (not to mention animal endangerment). But not DUI -- it's facially preposterous.

Harsh DUI laws are one thing; nonsensical applications of those DUI laws are something else entirely.