Murphy\’s Bye-Laws

Law #4: Any fool can make a rule, and any fool will mind it. –H.D. Thoreau

A Cocktail of Thoughts on DUI Law with a Splash of Philosophy

Posted by PintofStout on February 27, 2006

Last week I had a riveting conversation with B__ about DUI laws.  We started by talking about our plans for St. Patrick’s Day (slainte) and worrying about celebrating too far from home.  Just about everyone has driven when perhaps more sober judgment would have dictated otherwise, but where is the cutoff?  Is it where the government says it is?  The conversation starts out with the laws as they exist and morphs into a philosophical discussion of law.

The conversation starts with B__ marking his discontent with the procedures the states and municipalities use in combating drunk driving such as the legal limit for DUI being as much as a mouthful of Scope and the 90-day license suspension (suspension of driving privileges) that goes with refusing the breathalyzer test in response to comments I made related to this (link no longer active, sorry) reason article about a Virginia judge throwing out DUI cases.  He also expresses severe discontent (“hate”) with checkpoints.  (I passed over the 4th amendment issues with all these at the time.)  I responded with:

Actually, if you think about it, getting arrested for DUI (outside of an actual accident or damage of person or property) is like thought crime. They are arresting you for your potential to cause harm.

I don’t like to think of driving as a privilege anyway.  If our country is free from authoritarian rule, there should be no privileges for individuals, only government.  We allow them to function in what manner we say.

B__ responds with:

If I would extend the thought crime logic then I could say that nearly anything that would have a likelihood of causing harm but not actually causing harm would be ok.  I can understand where you’re coming from[, but] I would pose this question[:]  How would you treat an action that has a .01% chance of causing harm v. an action that has a 99.99% chance of causing harm?  Should one be illegal or would it only have consequences once harm was caused?  Even though in my second case there is every indication that the action would cause harm in 99 out of 100 instances [actually 9,999 out of 10,000 times].

I then emphasize the actual harm being illegal:

I would say if it has a 99.99% chance of actually causing harm, then it will get prosecuted 99.99% of the time; no shift in logic needed.  When harm is caused, then the harm could be illegal.  This would tear the ass out of the drug war and victimless crimes.

B__ then hints at some sort of chance threshold:

But what about something that causes harm 50% of the time?    I think the point is preventing harm.  What’s wrong with that?


I agree that preventing harm is important, but if you can do something 50% of the time and not cause harm, then great, don’t make it illegal.  In the case of drunk driving, people should surely be encouraged not to do it.  But that doesn’t mean I want it to be illegal; especially to the extent in which it is today.  Driving while sleepy, or eating, playing with the radio, or looking at hot women in the car next to you, or talking on the phone, or talking to the person next to you in the car are all hazardous while driving and increase the risk of accident – arguably more than some instances of drunk driving.

It isn’t so much the positive of protecting people, but the negative restricting of some activity because of some random and arbitrary risk percentage that I have a problem with.  Personal accountability is key, but you have to be accountable for actually doing something, not potentially doing something.


How is the percentage of risk involved with an activity random or arbitrary?  If there is a 99.99 percent chance that something harmful will happen why not stop that action before it causes harm?


You’d have to have pretty concrete proof that the percentage is what you say it is – not very likely.  Then the cutoff of percentage that you mentioned would surely be arbitrary; do we make it illegal if the risk is 25% or 71.235%?

I don’t want restrict the risk, but the actual damage.  Hell, we probably prosecute, jail, or fine more people in this country that haven’t actually caused harm to anybody than the one’s who actually do.  Or the percentages for success in prosecution in the one case [no harm caused] are likely higher.  It is much easier to convict someone of a made up crime [victimless] than a real crime with defined rules and boundaries [a la theft or murder with victim other than self].


If I would take a gun, aim it at you or anyone else, pull the trigger and miss then I shouldn’t be prosecuted?  I haven’t harmed anyone.  A potential existed but I only had one cartridge.  The bullet struck the ground behind you.  Perhaps I damaged a portion of your lawn, that might be something, but I would choose to give you $5 and then walk away.

I haven’t said anything about a cutoff percentage.  I’m just using percentages as examples.  I was trying to get you to agree that making the activity that causes harm 99.99% of the time should be illegal.  If A__* died because a drunk driver caused an accident what would happen to your opinion?

(* A__ is my wife. – KT)

I responded to the cutoff percentage comment by saying  he did imply that in the original question and quoting his original extension of the thought crime post, but should have used the question about 50% odds of causing damage as that was what I was thinking of.  I also wrote:

My opinion would likely stay the same if A__ were to be killed by a drunk driver, because the odds of it happening now are likely the same as when it wasn’t illegal.  It wouldn’t matter the cause of the harm, I’d be quite unhappy with it irregardless.  But it would be the actual harm I’d be upset with, not the potential for harm, in which case I’d have to be upset already.

The shooting at me threw me for a loop at first…I thought you’d have hit me (hehehe).  Your shooting at me was still an act of aggression, albeit an unsuccessful act.  If you tried to jump me and ended up getting beat up or at least not succeeding in beating me up – thus failing – it is still an act of aggression.  The physical damage is minimal, which also makes any penalty minimal not taking into account the mental damage such an act may cause (which I would still consider damage).


What I’m trying to say is that somewhere between a near absolute certainty and almost no chance of harm, yes, such a cutoff percentage might be arbitrary but it’s necessary.  That’s some pretty heavy assuming on my part about how precisely we can measure this kind of stuff.  I’m nearly 100% certain that since heavy prosecution of drunk driving began fatalities and injuries due to motor vehicle crashes have gone down overall, not just those involved with drunk driving.  That’s good, isn’t it?  (I don’t have time to [do] any kind of research right now)  I’m taking that as true when I say that the potential for A__ to be harmed was decreased by enacting legislation about drunk driving, and roads are safer for everyone because of it.

I have to stand by the statement that regulation of actions leading to harm reduces the potential for harm and reduces harm.  I just think that the devil is in trying to find that line between 99.99% and .0001%.  Running around with a burning flamethrower in a city park and walking and chewing gum are what I’m talking about.

You’re a steely kind of guy; I don’t think that you would suffer much mental damage.


I would assume that is correct about the motor vehicle fatalities, especially since the raw number of vehicles and drivers has likely increased pretty significantly, too.  But along with the threat of law, there have also been much more awareness of the problem through public service messages and outreach.  The same could be said for teen pregnancy (which has no law).

This concluded the conversation due to time constraints.  But when should there be laws?  An anarchist’s view, such as mine, would say never – to laws passed by legislatures, anyway.  Laws today are supposed to act as a deterrence, and their failure to do so is a result of the system of justice and punishment.  There has been much written about this which I’d be happy to point someone to if they so desired


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