Deterring the Drinking Driver: Legal Policy and Social Control
It is not surprising that drunk driving is now an important social issue; what is surprising is that this has taken so long. Each year there are more than 50,000 traffic deaths in the United States; almost two million people are seriously injured. The highway safety organizations, led by the National Safety Council and the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA), claim that half of these deaths and a significant percentage of the serious injuries are caused by drunk drivers. Although there is reason to believe that this figure is exaggerated, the extent of personal and property damage caused by drunk drivers is staggering, perhaps equal to the damage from all other crimes combined.
The movement against drunk driving is now getting the attention of the press and, more important, of the politicians. Last year almost four hundred safety bills connected with drunk driving were introduced in state legislatures. They provided for, among other things, mandatory jail terms, stiffer fines, automatic forfeiting of licenses, impounding vehicles, and higher minimum drinking ages. Last December, the White House called on the country to observe the first “National Drunk and Drugged Driving Awareness Week.” On New Year’s Day, after the release of an interim report from the Presidential Commission on Drunk Driving, President Reagan once again said he was committed to stopping drunk driving. We must, he said, “get these killers off our roads and get them off now.” Not content to await the commission’s final report, Congress passed, and the president signed, a new federal law providing grants to those states that adopt a prescribed set of punishments for drunk drivers.
These events are largely the result of a public-relations and political-action campaign led by two groups, Mothers Against Drunk Driving (MADD) and Remove Intoxicated Drivers (RID), both organized by women who lost husbands or children in accidents involving drunk drivers. Their efforts to arouse the public have been spectacularly successful. Chapters of both organizations are springing up in local communities throughout the country. They have put pressure on politicians by such tactics as the eleven-day candlelight vigil held last October in the lobby of the New York State Assembly. It is doubtful, however, that this crusade will be any more successful in stopping drunk driving than was the Prohibition movement in breaking the alcohol habit.
H. Laurence Ross’s Deterring the Drinking Driver is a comprehensive and painstaking study of efforts to limit drunk driving in the United States, Canada, Europe, Australia, and New Zealand. He concludes that no attempt to stop drunk driving has yet produced any lasting effect. Even the much discussed success of Scandinavian laws that impose strict penalties for anyone driving with high alcohol concentrations (so-called BACâ€”blood alcohol concentrationâ€”levels) turns out to be a myth. Ross’s investigations failed to turn up evidence showing significant decline in the numbers of crashes by drunks after such laws were adopted in Scandinavia.
The failure of “tough” laws and police crackdowns to reduce traffic fatalities caused by drunk drivers does not mean that drunk driving can’t be deterred. Even mild enforcement and light punishment undoubtedly influence some people’s decisions not to drink and drive. If there were a great many arrests and very severe penalties including lengthy imprisonment, no doubt many people simply would not drive after they had some drinks. But even under pressure from such organizations as MADD and RID, state politicians are unlikely to do more than modestly strengthen both the laws against drunk driving and their enforcement. The implication of Ross’s book is that this will have no significant effect. Why?
Millions of Americans drive after drinking; they do so with at least some awareness that they run a greater risk of a serious injury in an automobile accident. Apparently for many the risk is worth taking. On weekend nights many people go out just to drink at parties or bars. For others drinking is a natural part of other activities such as dining, bowling, or playing poker. Much American social life involves drinking alcohol; and this society depends on the automobile for mobility. Furthermore, alcohol and the automobile are symbols of adulthood, especially manhood. Patterns of drinking and driving are so deeply ingrained in American social, cultural, and economic life that they won’t be much changed by legislation. In addition to drivers who drink casually with friends or in bars, there are perhaps ten million alcoholics or “problem drinkers” for whom drinking is not wholly a matter of choice. Other drinkers go on binges to relieve their anxieties or avoid their problems. Such people are hardly aware of legal threats and most of them won’t be deterred by them.
If laws are to deter, people must think they face the possibility of punishment that is unacceptable. Those who have been caught driving while drunk have traditionally expected no more than a small fine or a short suspension of their licenses. Even drivers with several convictions for drunk driving could usually avoid jail, in part because juries often ignored the law. This history of light punishment suggests a deep American ambivalence toward drinking and driving and toward the use of alcohol in general.1 While most Americans may tell opinion polls that they deplore drunken driving and support stronger punishment, they show by their actions that they tend to identify with the drunk driver and that they reject draconian penalties. The drunk driver is not yet considered “a criminal,” and is too often an otherwise law-abiding friend, neighbor, or member of one’s own family.
Although new and harsher laws are being enacted, few drunk drivers will serve even short jail sentences of one to seven days, if for no other reason than that our jails and prisons are already crowded with more dangerous criminals. As long as jailing on a large scale remains a practical impossibility, deterrence will have to depend on fines and revoked licenses. In practice, fines are supplemented by higher insurance charges and, for some, legal fees. It is doubtful that increasing fines even by as much as several hundred dollars will stop people from driving while drunk, and, in any case, large fines are hard to collect; the default rate is already high.
Nor is losing one’s license a strong deterrent. Studies have shown that more than half of those whose licenses are suspended continue to drive and that most people eventually get them back. The longer the suspension or revocation, the greater the likelihood of illegal driving, particularly if the person suspended normally drives to work. To act as a deterrent, suspension and revocation would have to be backed by a credible threat of jail. Crowded jails, clogged courtrooms, and overburdened prosecutors make it unlikely that those driving without valid licenses will ever be jailed, at least for very long.
If that is not enough to bury hopes of deterring drunk drivers, the single most important weapon of deterrence, the threat of being arrested, is also weak. By some estimates cited by Ross, a drunk driver can expect to make as many as two thousand trips before he is stopped. The threat of being caught would have to be vastly increased to produce any effect on drinking and driving behavior. Ross describes experimental programs during the 1970s that increased fourfold the number of arrests for drunken driving; yet there was no discernible impact on the number of crashes by drunk drivers. A really effective increase in enforcement rates would require a large shift of police from daytime to nighttime duty and from other serious felonies to that of drunk driving. Such a changes is inconceivable. In view of widespread fear of predatory street crime in the cities, it may be undesirable.
The sad conclusion is that current efforts to prevent drunk driving through instruction, threats, fines, and revoking licenses are doomed to failure. And even if the amount of drunk driving could be reduced through heavily increased enforcement, there would be no assurance of a proportionate decline in the number of serious crashes. The drivers most likely to crash are probably the hardest to deter.
If the recent campaigns against drunken driving don’t seem likely to reduce seriously the casualties on the highway, what should be done? Much depends upon how dangerous and irresponsible drunken driving really is. Oddly, we know very little about how people drive their cars when dangerously drunk. Laboratory tests show that judgment and driving skills deteriorate substantially, even for heavy drinkers, after four or five drinks within an hour. Some drivers have experience with these effects and try to compensate by driving with more caution. Some may nevertheless have accidents that would not have taken place if they had been sober. There probably exists another group for whom alcohol obliterates inhibitions and stimulates aggression and bravado, the highway equivalent of the “fighting drunk.”
A careful look at the drunken-driving statistics collected by Ross reveals two important facts. First, of those drunk drivers who harm anyone (a very small proportion), most harm themselves or their passengers. Drunks are the most likely victims of their own irresponsible behavior, whether at home, at work, or on the road. This suggests that at least some drunk driving is more like suicide than homicide. Indeed the possibility that a significant number of people who die while driving drunk, particularly in single-car crashes, may want to commit suicide should not be easily dismissed. Second, drunk driving is not so high a risk as is often claimed. Ross estimates that the absolute risk of a crash for the drunk driver is only on the order of 1 in 1,000, and the risk of causing death very much lower. Because only a negligible percentage of drunken-driving trips end in calamity, it is difficult to describe the average trip by a drunken driver as depraved conduct.
As with all other crimes, there are more and less serious varieties of drunk driving, although the recent campaigns tend to lump them all together. A person who may seem to be driving carefully may be stopped by the police because of one defective headlight. When the policeman smells alcohol on his breath, he may ask the driver to take a Breathalyzer test. If the driver has a BAC level of 0.10, now the legal limit in all but two states, should he be punished as severely as a driver who attracts the attention of the police by speeding and repeatedly swerving into the oncoming lane and who turns out to have a BAC level of 0.30? Clearly not, but current and proposed laws tend to lump both drivers into the same category.
The movement against drunk driving may be mistaken in attempting to lower the level of alcohol required for a conviction. If we lower the BAC level, more drivers will be found in violation of the law but it will become even less likely that “drunk drivers” will be considered as criminals. Perhaps the threshold BAC level should be raised rather than lowered, drawing a line between somewhat reckless drunk driving and grossly irresponsible drunk driving. In that case, driving with a BAC greater than 0.20 should be defined as a more serious criminal offense than driving with a BAC of 0.10. It might also make sense to concentrate enforcement and punishment on reckless driving itself, whether the ultimate “cause” is alcohol, marijuana, amphetamines, lack of sleep, or just disregard for the rules of the road.
Americans will continue to drink and drive unless they become convinced that it is too dangerous to themselves to go on doing it; that would require a longterm effort to inform the public comparable to the one linking cigarettes and lung cancer. While the antismoking campaign has had notable success, billions of cigarettes are still sold each year. Changing the public’s attitudes toward drinking and driving will be far more difficult. A campaign against drunken driving would not have behind it the scientific and medical authority of the campaign against smoking. The message that smoking per se is “hazardous to health” is clearer and more forceful than the somewhat vague warning not to drive after “excessive” drinking. And as much as they like smoking, Americans may be even more drawn to drinking. Compare the public’s acceptance of antismoking regulations in airplanes and other public places with the vehement protest that forced Congress to overrule the federal requirement that cars be operable only when their seat belts are fastened. Driving seems the supreme expression of individualism for many Americans.
A quite different approach to problems of highway safety has been promoted by Ralph Nader and his associates since the early 1960s. Nader’s book Unsafe at Any Speed2 was a devastating attack on the automobile industry and the highway-safety establishment for ignoring or suppressing efforts to make the automobile manufacturers more accountable for the poor performance of vehicles involved in accidents. Since the automobile came into use, there have been almost 2.5 million fatal casualties in the United States and three times that number of persons permanently injured. Yet the safety of the cars themselves has been a largely moot issue. The auto industry blames highway slaughter on the drivers for improperly handling sound machines on essentially safe roads. It is no surprise that auto manufacturers welcome and support the movement against drunk driving; it reinforces their own view that the nut behind the wheel is the number-one highway-safety problem.
The auto industry’s attitude makes it all the more important to assess the true seriousness of the drunk-driving problem. National statistics are compiled in a way that systematically exaggerates the danger of drunk driving. The specter of 26,000 “alcohol-related” deaths annually is raised again and again in Congress, the press, and the reports of the state commissions on drunk driving, but it has very little factual foundation. In fact, fewer than 30 percent of all drivers involved in fatal crashes are tested for blood alcohol concentrations. That means that there is no reliable system for collecting data that can tell us how many traffic deaths are caused by drunk drivers. Statistics on traffic deaths do not distinguish between drivers who were drunk at the time of the crash and those who probably had no more than one or two drinks.
Nor is it correct to assume, as the statistical compilations do, that all drivers who have been drinking are to blame for their crashes. Many have accidents for the same reasons that nondrinking drivers do. Moreover, as currently compiled, the national statistics on alcohol-related traffic fatalities include 2,000 drunk pedestrians hit by sober drivers, a tragedy to be sure, but not one to be blamed on drunk drivers. Drunk driving is obviously a danger even when it is cut down to size; but it is not the only or even the predominant problem. Measures aimed at preventing crashes by drunken drivers will not affect the majority of all crashes and injuriesâ€”far from it. But producing safer cars could potentially affect all traffic crashes and injuries.
Auto manufacturers claim that the public is not interested in safer cars. They may be right, for while many citizens have been supporting the campaigns against drunk driving, only 11 percent of American drivers wear seat belts; and no grass-roots citizens’ movement is lobbying for air bags or other safety devices. Public opinion has not been mobilized against the auto manufacturers as it has been against the “killer drunk driver.”3 Ironically, all the attention now being concentrated on drunk driving diminishes the attention given to automobile safety.
While President Reagan leads the attack against drunk drivers, his administration has rescinded the regulation that would require all automobiles to be fitted with air bags or automatic seat belts. (The legality of the administration’s action is now being contested before the Supreme Court.) In 1977, the Department of Transportation predicted that such passive restraints could prevent 12,000 deaths and more than 100,000 serious injuries annually. Air bags would cost approximately $200 to $300 per car; automatic seat belts would cost less than half that amount. In addition, consumers would benefit from lower insurance premiums made possible by the reduced number of injuries. Other technological innovations might prevent a drunk driver from starting his car, or limit his speed, or warn other motorists that he is dangerously drunk by constantly blinking lights. While drunk driving is rightly being recognized as irresponsible and dangerous, building safer cars holds incomparably more promise for increasing highway safety than the countermeasures to drunk driving now being promoted throughout the US.
See Mark Edward Lender and James Kirby Martin, Drinking in America: A History (Free Press, 1982).↩
See Joseph R. Gusfield, The Culture of Public Problems: Drinking-Driving and the Symbolic Order (University of Chicago Press, 1981).↩