Should we make crime impossible?

AuthorRich, Michael L.
PositionIII. Should We Make Drunk Driving Impossible? through IV. Future Considerations, with footnotes, p. 828-848
  1. SHOULD WE MAKE DRUNK DRIVING IMPOSSIBLE?

    In 2008, the National Highway Traffic Safety Administration (NHTSA) began a five-year, $10 million joint program with the auto industry with the goal of developing vehicle-based technology to prevent drunk driving. (157) The technology, called the Driver Alcohol Detection System for Safety (DADSS), would measure the driver's blood alcohol level (BAL) using either distant spectrometry of the driver's breath or touch-based spectrometry of the driver's tissue. (158) A drivable test vehicle incorporating the technology is expected in two years, with "subsequent voluntary installation in production vehicles in the next 8 to 10 years." (159)

    The development of the DADSS presents a marked shift in strategy in the fight against drunk driving. (160) Over the past thirty years, a combination of traditional crime-fighting techniques and a public-relations blitz has contributed to a marked decline in the number of deaths that are caused by drunk driving. (161) Legislatures have passed increasingly harsh penalties for repeat offenders. (162) Government agencies and independent groups have spent large sums of money on education. (163) Police have engaged in high-visibility enforcement efforts, such as sobriety checkpoints. (164) Courts have sought to prevent recidivism by creative punishments, such as vehicle forfeiture and the mandated use of ignition interlocks. (165) Though varied, these efforts push the standard crime-control buttons of general deterrence, specific deterrence, and incapacitation. (166) Yet, the benefits of these approaches tapered off in the mid-1990s, (167) and drunk drivers continue to kill thousands of people each year. (168)

    Given the high costs of drunk driving and its stubborn persistence, a new approach was perceived to be necessary, and technology to prevent the criminal conduct altogether is an obvious next step. (169) Traditional ignition interlocks, which require a driver to provide a clean breath sample before allowing her vehicle to start, are staples of punishment schemes for convicted drunk drivers and have proven effective in reducing recidivism. (170) But current interlocks are not politically palatable because they are intrusive, requiring the driver to breath into a tube every time the driver wishes to start her vehicle. (171) Thus, the promise of the DADSS is to harness the effectiveness of traditional ignition interlocks in a system that will not "impede sober drivers from starting their vehicles" and is "small, reliable, durable, repeatable, maintenance free, and relatively inexpensive." (172)

    Because the DADSS is still under development and the precise contours of the finished product are unknown, this discussion proceeds on a few assumptions. First, that the product will measure the driver's BAL using one of the two technologies under development: distant spectroscopy to measure alcohol in the driver's breath or touch spectroscopy to measure alcohol through the driver's skin. (173) Second, that the final technology will be reasonably, but not perfectly, "small, reliable, durable, repeatable, maintenance free, and [] inexpensive." Specifically, it will be assumed that the DADSS will meet performance specifications requiring that the system be precise to 0.0003% BAL in the range near the legal BAL limit. (174) Third, that the federal government or the states mandate its installation in all new motor vehicles. Though the DADSS program hopes that installation in vehicles will be "voluntary," (175) that seems unlikely; the public has proven to be resistant to ignition lock technology in the past, (176) and interest groups have begun to align against the DADSS. (177)

    1. Benefits of the DADSS

      Preventing people with a BAL above the legal limit from driving would provide substantial benefits to society. The most obvious is that it would prevent many of the direct harms that drunk driving currently causes. In 2009, motor vehicle accidents involving a drunk driver killed more than 10,000 people, almost one-third of all motor vehicle deaths. (178) Accidents involving drunk drivers result in tens of billions of dollars annually in direct monetary costs and additional billions in lost quality of life. (179) Moreover, governments spend billions of dollars on efforts to prevent drunk driving, including educational campaigns and targeted enforcement tactics, such as sobriety checkpoints. (180) The costs of investigating drunk driving also are enormous, as police made more than 1.4 million drunk driving arrests in 2010. (181) And as the punishments for drunk driving have become more severe, the costs of incarcerating those convicted of drunk driving have increased. (182) These enforcement costs would be decimated by an effective DADSS.

      Drunk driving convictions also have considerable collateral consequences on those convicted and their families. A drunk driving arrest, even for a first-time offender, can cost over $10,000 in legal fees and other expenses. (183) And as states have begun to impose mandatory jail time for repeat offenders, more drunk drivers have faced the consequences of imprisonment, including the loss of employment, injury to their economic prospects, social stigma, and harm to their familial relationships. (184) Again, these consequences can be largely avoided by the installation of an effective DADSS in every vehicle.

      By removing the need for traditional law enforcement techniques, such as traffic stops based on individualized suspicion, in the drunk driving arena, the DADSS would remedy any concerns that those techniques raise. (185) Moreover, the DADSS would make sobriety checkpoints, the most visible law enforcement effort targeting drunk drivers, unnecessary. These checkpoints are subject to criticism on the ground that they permit police to target low-income or high-crime neighborhoods and thus disproportionately target the poor or ethnic or racial minorities. (186) By impacting all drivers equally, regardless of race or class, the DADSS would undercut these critiques. Checkpoints also are vastly, though not unconstitutionally, overinclusive in that they require the police to briefly stop a large number of innocent drivers to catch those who are intoxicated. (187) These drivers suffer intrusions, albeit "minimal" ones, on their privacy and liberty interests. (188) The DADSS would make such intrusions unnecessary.

      Finally, by preventing drunk driving, the DADSS could reinforce anti-drunk driving norms. The creation of such norms has long been a focus of both private and government anti-drunk-driving advocates, and these educational efforts have borne substantial fruit. (189) Preventing drunk driving may further bolster these norms, particularly with respect to the wrongfulness of driving with a BAL just above the legal limit. (190)

    2. Costs of the DADSS

      Unlike impossibility structures that could have an impact on potential victims or on third parties, (191) the DADSS will impinge almost exclusively on the interests of the potential drunk driver. (192) The class of potential perpetrators is vast, however, and eventually would include every individual in the country who drives. Moreover, like any impossibility structure, the DADSS would impact society's interests.

      1. Perpetrator Interests

        The primary impact of the DADSS will be on the autonomy and privacy interests of drivers. (193) These interests are discussed in turn.

        1. Autonomy

          The primary function of the DADSS is to prevent unlawful conduct, that is, to keep drivers from operating their vehicles with a BAL exceeding the legal limit. In addition, the DADSS will inevitably prevent some individuals from engaging in legal conduct, namely, from driving when they have a BAL below the legal limit.

          (i) The Freedom to Drive Drunk?

          As explained previously, there are essentially three conditions under which an impossibility structure raises concerns relating to an individual's liberty interest in engaging in the targeted conduct: (1) the criminal conduct is insufficiently serious to justify a criminal sanction; (2) the criminal prohibition is paternalistic; and (3) the regulated conduct is constitutionally protected. (194) In the case of drunk driving, the latter two conditions are not met. Though it often harms the intoxicated driver, (195) drunk driving is punished primarily because of the enormous harm it inflicts on others. (196) Thus, criminal prohibitions on drunk driving are not paternalistic. (197) In addition, driving is not an activity entitled to direct constitutional protection. (198)

          The question remains, then, of whether drunk driving is a sufficiently serious offense to justify criminal punishment. Considering the harm caused by drunk driving as a whole, the answer is certainly in the affirmative. (199) But all drunk driving is not the same. Those with a BAL well in excess of the legal limit cause substantially more fatalities than those with a BAL just over the limit. (200) Studies have concluded that often legal, or at least less severely punished, (201) activities like cell phone use and text messaging while driving (202) are more dangerous than "barely drunk" driving. Moreover, even though drunk driving is known to be dangerous, substantial segments of the population admit to drinking and then driving. (203) As a result, it is unsurprising that juries exhibit sympathy for those accused of drunk driving, particularly in the close cases where the driver's BAL barely exceeds the legal limit. (204)

          These observations suggest that although there is unlikely to be concern about the DADSS to the extent that it prevents "severe" drunk driving, there may be political pushback resulting from its ban on even borderline offending. (205) Indeed, it is plausible that if political pressures caused legislatures to criminalize conduct that most of society does not view as wrongful, (206) then when it comes to distinguishing illegal drunk driving from legal driving after...

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