Legalize Drunk Driving

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[Note:
This column was written before the news came out last night
that George W. Bush was arrested
on a DUI charge
24 years ago. He was stopped in Maine for driving
too slowly and briefly veering onto the shoulder of the road.]

Clinton has signed a bill passed by Congress that orders the states
to adopt new, more onerous drunk-driving standards or face a loss
of highway funds. That's right: the old highway extortion trick.
Sure enough, states are already working to pass new, tighter laws
against Driving Under the Influence, responding as expected to the
feds' ransom note.

Now
the feds declare that a blood-alcohol level of 0.08 percent and
above is criminal and must be severely punished. The National Restaurant
Association is exactly right that this is absurdly low. The overwhelming
majority of accidents related to drunk driving involve repeat offenders
with blood-alcohol levels twice that high. If a standard of 0.1
doesn't deter them, then a lower one won't either.

But
there's a more fundamental point. 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.

What
have we done by permitting government to criminalize the content
of our blood instead of actions themselves? We have given it power
to make the application of the law arbitrary, capricious, and contingent
on the judgment of cops and cop technicians. Indeed, without the
government's "Breathalyzer," there is no way to tell for
sure if we are breaking the law.

Sure,
we can do informal calculations in our head, based on our weight
and the amount of alcohol we have had over some period of time.
But at best these will be estimates. We have to wait for the government
to administer a test to tell us whether or not we are criminals.
That's not the way law is supposed to work. Indeed, this is a form
of tyranny.

Now,
the immediate response goes this way: drunk driving has to be illegal
because the probability of causing an accident rises dramatically
when you drink. The answer is just as simple: government in a free
society should not deal in probabilities. The law should deal in
actions and actions alone, and only insofar as they damage person
or property. Probabilities are something for insurance companies
to assess on a competitive and voluntary basis.

This
is why the campaign against "racial profiling" has intuitive
plausibility to many people: surely a person shouldn't be hounded
solely because some demographic groups have higher crime rates than
others. Government should be preventing and punishing crimes themselves,
not probabilities and propensities. Neither, then, should we have
driver profiling, which assumes that just because a person has quaffed
a few he is automatically a danger.

In
fact, driver profiling is worse than racial profiling, because the
latter only implies that the police are more watchful, not that
they criminalize race itself. Despite the propaganda, what's being
criminalized in the case of drunk driving is not the probability
that a person driving will get into an accident but the fact
of the blood-alcohol content itself. A drunk driver is humiliated
and destroyed even when he hasn't done any harm.

Of
course, enforcement is a serious problem. A sizeable number of people
leaving a bar or a restaurant would probably qualify as DUI. But
there is no way for the police to know unless they are tipped off
by a swerving car or reckless driving in general. But the question
becomes: why not ticket the swerving or recklessness and leave the
alcohol out of it? Why indeed.

To
underscore the fact that it is some level of drinking that is being
criminalized, government sets up these outrageous, civil-liberties-violating
barricades that stop people to check their blood – even when
they have done nothing at all. This is a gross attack on liberty
that implies that the government has and should have total control
over us, extending even to the testing of intimate biological facts.
But somehow we put up with it because we have conceded the first
assumption that government ought to punish us for the content of
our blood and not just our actions.

There
are many factors that cause a person to drive poorly. You may have
sore muscles after a weight-lifting session and have slow reactions.
You could be sleepy. You could be in a bad mood, or angry after
a fight with your spouse. Should the government be allowed to administer
anger tests, tiredness tests, or soreness tests? That is the very
next step, and don't be surprised when Congress starts to examine
this question.

Already,
there's a move on to prohibit cell phone use while driving. Such
an absurdity follows from the idea that government should make judgments
about what we are allegedly likely to do.

What's
more, some people drive more safely after a few drinks, precisely
because they know their reaction time has been slowed and they must
pay more attention to safety. We all know drunks who have an amazing
ability to drive perfectly after being liquored up. They should
be liberated from the force of the law, and only punished if they
actually do something wrong.

We
need to put a stop to this whole trend now. Drunk driving should
be legalized. And please don't write me to say: "I am offended
by your insensitivity because my mother was killed by a drunk driver."
Any person responsible for killing someone else is guilty of manslaughter
or murder and should be punished accordingly. But it is perverse
to punish a murderer not because of his crime but because of some
biological consideration, e.g. he has red hair.

Bank
robbers may tend to wear masks, but the crime they commit has nothing
to do with the mask. In the same way, drunk drivers cause accidents
but so do sober drivers, and many drunk drivers cause no accidents
at all. The law should focus on violations of person and property,
not scientific oddities like blood content.

There's
a final point against Clinton's drunk-driving bill. It is a violation
of states rights. Not only is there is no warrant in the Constitution
for the federal government to legislate blood-alcohol content –
the 10th amendment should prevent it from doing so. The
question of drunk driving should first be returned to the states,
and then each state should liberate drunk drivers from the force
of the law.

November
3, 2000

Llewellyn
H. Rockwell, Jr. [send him
mail
], former publications editor to Ludwig von Mises and congressional
chief of staff to Ron Paul, is founder and chairman of the Mises
Institute
, executor for the estate of Murray N. Rothbard, and
editor of LewRockwell.com.
See his
books
.

The
Best of Lew Rockwell

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