Arrested for What?

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the 1952 western film classic High
, there is a scene where hero and sheriff Will Kane,
played by Gary Cooper, is asked why he simply doesn’t arrest three
hooligans who are waiting around for their leader to begin wreaking
havoc – which includes bushwhacking Kane. He replies that he
can’t, because the trio hasn’t done anything.

years later, in the 2002 science-fiction film Minority
, the police try to stop crimes before they begin,
using parapsychology to predict the future. The police arrest (and
imprison) perpetrators before they actually commit their dastardly
deeds. Of course, it might have made more sense if they simply acted
to prevent the crimes, but that’s not relevant here. The salient
point is that the future-police arrest people before they actually
do anything.

the real world, year 2005, we apparently live somewhere between
these two fictional circumstances. A few weeks ago the
Washington Post reported
that D.C. police are
routinely arresting people for drunken driving, despite the fact
that their breathalyzer tests score below the widely-accepted legal
alcohol limit of .08%. Those arrested hadn’t done anything,
yet they were cuffed and hauled away, simply because a policeman
thought they might do something.

turns out the legal limit in D.C. is a preposterous .01%! Thus,
a single glass of wine with dinner renders its citizens subject
to the humiliation and aggression described in the Post’s
story, which includes being handcuffed, searched, arrested, put
in a jail cell for several hours, then being charged with driving
under the influence of alcohol.

aside the idiocy of a .01% alcohol limit – I suspect even a rinsing
with Listerine would produce a trip to the station house for the
driver – the question that needs to be asked is (even if the test
scored above the .08% limit) – what have such drivers actually
done? The answer, of course, is that they have done nothing.

drunken drivers might crash into other cars or innocent pedestrians,
but they haven’t done it yet. So how can they be arrested for doing
nothing? All they have done is violate a law, the reasonableness
of which is open to question. With apologies to the likes of Mothers
Against Drunk Driving, how can drunken driving itself be a crime?
No one has been injured, no property damaged. How can it be a crime
simply to drive badly (i.e., impaired) according to the state’s

purpose of this law, as is the purpose of so many of the state’s
nitpicking, micro-managing edicts, is obviously to prevent (what
it believes are) negative events before they happen. In this instance,
the negative outcome is an automobile accident; the underlying crime
is “reckless endangerment.” In its infinite wisdom, our nanny state
has decided that our society wishes to keep potentially dangerous
drivers off our roadways.

this is a good thing – I know I don’t want drunken idiots cruising
around all over the place, drivers who’ll crash into me and say
“Oops, sorry, guess I had too much to drink; it was just an accident.”
For one thing, that is not an accident – it is deliberate self-impairment,
and the offender is absolutely responsible for whatever havoc he
wreaks. For another, there are plenty of dangerous, non-drunken
idiots on our highways to go around (like the dolts two feet from
your rear bumper at 75 mph) – so we don’t need drunkards, too.

all seriousness, this seems to raise some important questions. While
common sense tells us that drunken driving is not to be condoned,
should .01%, .08% or even .18% drivers who are stopped for a missing
taillight be subject to DUI arrest if they haven’t exhibited signs
of “bad driving”? How does this type of bad driving differ from
that of the tailgaters noted above, which never results in arrest?
If the drivers haven’t caused any damage to property or persons,
how is this different from a Minority
or Stalin-esque “legal system,” where the state attempts
to stop undesirable events before they happen?

to me that either you can arrest someone before he does something,
or you can’t. If you buy into the former case, then what are the

3, 2005

S. Fischer has worked in various fields.

S. Fischer

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