I’ve always felt that “cool”—as an antonym of “square”—has an ethical dimension. Being square has moral implications; sometimes being square is a way of being wrong. This forms part of my growing opposition to DUI laws. Left types not only support these laws, in the sense of hardly ever including them in civil libertarian talk, but many oppose “driving drunk” on principle, legal or not.
Until recently my own view has been the following: Drunk (or rather “impaired”—as nobody is really “drunk” with .08 blood alcohol) driving marginally increases the likelihood of an accident when measured against some ideal “driving state of mind.” One problem with this is that the marginal increase in risk is, to me, trumped by the negative consequences of DUI legislation: the associated fines, jail time, and social stigmatization, and the decrease in quality of life for the many that depend socially on “impaired” driving.
Another problem is that no ideal “driving state of mind” is quite definable. For example, the presence of trees along a highway poses some degree of distraction from the road and thus “impairment.” All instances of driving are constantly fraught with various, crisscrossing “impairments.” Of course, impairments like distraction, fatigue, preoccupation, etc., are not measurable in the way blood alcohol content (BAC) is. But this compares apples to oranges, as the (alleged) impairment associated with BAC (or with certain BAC counts) is not measurable either.
These considerations led me to an argument; in brief:
(1) We can’t measure the state of mind, “alcohol-related impairment,” but rather only the damage to property or persons caused by impaired drivers. (Or better, we can’t measure the impairment but we can prosecute the damages perfectly well without needing them to be measured.)
(2) However, we can’t effectively “read back” the impairment from the damages: A drunk driver could still get into an accident due to slick roads, or mulling over a bad day at work, or any other reason aside from the alcohol. That is, we can’t really determine whether the accident is the effect of alcohol or of some other kind of impairment—or something else altogether. We cannot use the accident to infer alcohol-related impairment causally.
(3) If we can never assume that alcohol-related impairment had something to do with an accident, it would be unfair to prosecute drunk drivers based on this assumption. Far less could we use the experience of drunk drivers we have already prosecuted on this basis to prosecute other drunk drivers on the assumption that this impairment lends significant risk of their future accidents. (That is, if we can’t infer the impairment from an accident, we sure as hell can’t infer it apart from any accident.)
(4) Even if we could prosecute alcohol-related impairment based on its “effects,” consistency would demand that we prosecute all types of impairment based on their (supposed) effects. (Again, supposing we could actually read these impairments off of the damages caused by persons under their influence—which we can’t). All things being equal, criminalizing one type of impairment requires we criminalize them all.
(5) The only (consistent) alternative is to decriminalize all of these impairments, including alcohol-related impairment; also, to decriminalize—that is, to prosecute no more than civilly1—all driving-related damages.
This is a very preliminary argument—an argument sketch, really. It maintains “all things being equal,” and things may not be equal. (One qualification is added in the Appendix below.)
But thankfully, you don’t have to accept this analysis to oppose DUI legislation. For, like laws associated with the “War on Drugs,” DUI laws don’t actually do anything to measurably hinder drunk driving. If that is the goal, then, all of those prosecutions and all of the considerable pain and hassle associated with them are for nothing. Since it is wrong to cause pain for no reason, it follows that we should abolish DUI legislation. This should be argument enough for good, thinking people.
1 Exempting cases where the damage is clearly deliberate (e.g., a road-rager uses his car as a battering ram), or the product of gross negligence (e.g., the high rate of speed amounts to, or implies, recklessness).
We shouldn’t push too strongly the “you can’t punish a mind-state” aspect of the argument. A strict refusal to punish mind-states would knock the bottom out of the criminal law corpus. Intentionality is a legally-relevant factor and happens to be a state of mind. This mind-state is what makes the difference between a trip and fall which happens to knock over a bystander, and a malicious lunge. Similarly, in the case of hate-crimes, the mind-state attending acts which would be otherwise criminal makes them even more so.
But these mind-states should be distinguished that of drunkenness. For one, “hate” is evidenced by a hate crime much more clearly than alcohol-related impairment is evidenced by an accident-caused-by-a-drunken-person. Again, an accident by somebody who has been drinking might still have been caused by tiredness, or distraction from billboard “white noise.” These impairments are competitors to the hypothesis that drunkenness caused the accident. By comparison, when a Nazi skinhead beats a person of color while yelling racial slurs, there is, reasonably speaking, no similar “mushiness” in our reconstruction of the causality of the beating: Clearly, the “hate” has contributed to the crime, or to its intensity (or something). But just as recognizing the causal relevance of “hate” to some crimes does not require us to prosecute the hate independently of any crime, admitting that alcoholic impairment has contributed to a specific accident—if we could prove that—would not require us to prosecute drunken driving independently of an accident.
(Also, the “hate” bears legally-relevant effects not matched by the impairment: “Adding” hate to some crime makes it a different kind of crime—a much “bigger” one. Hate crimes induce in people of color (for example) the fearful recognition that they could have been targeted, and may be next. An entire community of persons is thereby victimized. However, when a drunk has an accident—again, if we could prove the drunkenness caused it—it is unclear that the “driving community” is similarly, specially terrorized—that is, beyond the degree already induced by ordinary, non-impaired, accidents.)
We might say, then: It is not so much that we not should criminalize mind-states, but that we not criminalize mere mind-states. (Better: Mind-states can be legally relevant, but not a mere mind-state.)