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Steven S. Nemerson, Alcoholism, Intoxication,
and the Criminal Law, 10 Cardozo Law. Review. 393, (1988).
In
the American criminal justice system there is a general principal that
people should not be held criminally liable for acts which they did not
commit voluntarily. Because mens rea is required in order for a
person to be criminally liable, people have questioned whether punishing
the actions of alcoholics is justifiable. The author of this
article asserts that Alcoholism is a disease which follows a predictable
course in the body of those afflicted. [1]
According to the disease model of alcoholism, the alcoholic experiences
a loss of control or an inability to abstain from alcoholic beverages.[2]
According to this disease model, for affected individuals, alcohol
consumption is not a voluntary action, and as a result of their
consumption of alcohol, these individuals will typically become
intoxicated leading to irrational behavior and many times criminal
activity.[3]
If
this disease model is indeed accurate, should such individuals be
subject to criminal liability for actions that may fall beyond the
person's realm of control? Currently, intoxicated but morally
blameless alcoholics are not afforded a legally recognized excuse for
their behavior. This the author claims is justified in light of
the fact that innocent individuals are protected from those who would
other wise commit crimes regardless of their moral blameworthiness.[4]
Accordingly, it is more desirable to protect the rights of people to be
free from criminal harm as opposed to the rights of those who may commit
crimes involuntarily.
The author points out several possible alternatives to the current
system. First, allow alcoholism to be raised as an affirmative
defense that must be established by the defendant.[5]
Second, there is also the possibility that a person's alcoholic state
could be considered during the sentencing phase of a trial.[6]
Ross, Lawrence H., Confronting Drunk
Driving: Social Policy For Saving Lives. New Haven: Yale University
Press, 1992.
It
may come as no surprise that the reason drunken drivers get into
automobile accidents that injure and kill people is because they consume
alcohol immediately before operating their vehicle.The social
value placed on the consumption of alcohol in this country has a
profound influence on the likelihood of people driving while under the
influence of alcohol.[7] According to the
author, drinking is commonly accepted and practiced by most adults, and
that even moderate consumption of alcohol is sufficient to double the
risk of a serious crash if combined with driving.[8]
With this in mind, the author further states that approximately 20
percent of American drivers drive while legally impaired at least once
annually.[9]
In
response to the level and acceptability of social drinking in the United
States, and the subsequent high likelihood of a person driving while
impaired, the author suggests that the starting point for any reform
should begin with our criminal justice system.[10]
First, total percentage of individuals who would normally drive while
intoxicated can be decreased via the broad threat of criminal punishment
of those who violate legal standards.[11]
For example, lowering the legal blood alcohol limit for those persons
operating vehicles increases the chance that even moderate levels of
alcohol consumption will place those persons at risk of a DUI charge if
caught.[12] Likewise, by strictly enforcing
current laws, the percentage of people driving while intoxicated
will decrease as the likelihood of punishment and the severity of that
punishment increases.
The legal system is not the only means of solving the problem of drunk
driving. Possible solutions include increasing taxes on alcoholic
beverages, making alcohol consumption more cost restrictive, and
limiting the amount of alcohol sold nationally via pricing or
manufacturing.[13] Government could even
limit the sale of alcoholic beverages to certain locations where the
chance of a person driving while intoxicated is decreased.[14]
All of these measure in conjunction with increased involvement on behalf
of the legal system could significantly decrease the number of persons
driving drunk, which would in turn save lives.
Drivers Impaired by Alcohol,
From the Council on Scientific Affairs Report 14, adopted by the AMA
House of Delegates, June 1997
http://www.ama-assn.org/special/aos/alcohol1/policy01.htm
In
this report and resolution by the American Medical Association, there
was found to be a strong correlation between state imposed legal blood
alcohol concentrations (BAC) and the rate of fatal crashes in that
jurisdiction. The material report suggests that the lower the BAC
the lower the fatality rate in that jurisdiction. The AMA
believes that a policy of "zero tolerance" would significantly
decrease the occurrence of fatal crashes in jurisdictions that would
adopt this policy.
In
response to the report, the AMA adopted several resolutions intended to
decrease the rate of alcohol related automobile accidents. Of
primary importance was the decision to support lower BAC levels, but not
to press for immediate adoption of a Zero tolerance policy given the
current lack of public or political support for such a measure.
Rather than press for a zero tolerance policy, the AMA instead decided
to focus on educating the physicians, public, and policy makers about
the issue.
Besides this particular report, this web site contains several other
resources valuable for research into the area of Drinking and driving as
well as several other areas related to health care and medicine.
Highway Safety Act, 23U.S.C.A.
§408 (1999).
Under this act, states will be granted federal funding for
implementation of highway traffic safety measures which are designed to
reduce the incidence of alcohol related auto accidents. §408 (a).
The Act outlines general spending procedures which are widely
discretionary for the states. §408 (1-2). Under the statute, States are
also required to provide for mandatory suspension of operators license
of any person committing an alcohol related offense for the first time.
§ 408 (3)(A). In addition to mandatory license suspension for the first
time offender, states are required to impose either one hundred hours of
community service or a minimum prison sentence of no less than 48
consecutive hours. § 408 (3).This suspension procedure applies to
those individuals who submit to either a blood alcohol test, breath
test, and those individuals who refuse to submit to any test. Any
individual convicted of a second offense within five years of the first
conviction under this statute, shall receive not less than ten days in
prison and license revocation for not less than one year.
The states are also required to establish a state wide record keeping
system which will help to identify repeat offenders of this statute. §408
(f)(1).States in order to receive funding must adopt a statewide
minimum drinking age of not less than twenty-one years of age. 408
(f)(6). For those persons who have already been identified as
offenders, the state is to create rehabilitation facilities designed to
help prior offenders and or to research methods of detecting drivers who
have been drinking. §408 (f)(8).
Lee V. Kiku Restaurant: Allocation of
Fault Between an Alcohol Vendor and a Patron-What Could Happen After
Providing "One More for the Road", 17 American Journal of
Trial Advocacy 269
This Journal Article discusses the legal consequences and potential
liability of a vendors to patrons and third parties injured by patrons
who drive drunk after leaving the vendor's establishment.According
to the article, there are signs of a change in the common law view that
injuries to patrons and third parties are the result of consumption of
alcohol and not furnishing.[15] The Article
relies heavily on the New Jersey Supreme Court case Lee V. Kiku
Restaurant in which three patrons of Kiku
restaurant were served alcohol until the point of intoxication, the
patrons then left the restaurant in plaintiff's car, in which they were
later involved in an automobile accident.[16] The
Court reasoned that both the drunken driver and the vendor should be
held responsible for injuries caused by the accident.[17]
According to the article, this decision seems in keeping with the trend
toward broadening liability in an attempt to curb the incidence of
automobile fatalities as a result of alcohol consumption.
This article is a good review of the comparative negligence theory used
to find vendor liability, and makes a good argument that such a policy
will help to limit alcohol consumption before people drive.
New Hi-Tech Systems Keeping Drunk Drivers
off the Streets
http://www.msnbc.com/local/kshb/172783.asp
A
new technology may be the key to keeping convicted drunk drivers from
becoming repeat offenders. A company named Guardian Interlock has
developed a technology which is installed in the vehicle of a person who
has just been convicted of driving under the influence. According
to Guardian Interlock their creation, the Ignition Interlock, requires
the operator to blow into the unit in order for the car to be started,
and once started the unit must be blown into every thirty minutes.
The unit acts as a portable breath alcohol test, and if at any time the
unit sense alcohol on the persons breath, the unit will automatically
disable the vehicle.
Besides being a preventative measure, the unit also stores the
information that it gathers which is then downloaded for inspection by
probation officers. Any violation detected by the unit can mean
that the offender may be subject to greater punishment. Probably
the most appealing aspect of the unit for taxpayers is that the unit is
paid for by the offender. This however does bring up one distinct
problem with the unit, what to do with those people who are unable to
pay the almost $60 per month to be monitored.Because most persons
who are convicted of DUI earn approximately $22,000 annually, the unit
may not be an option for many convicted drunk drivers. In spite of
this, a few communities have contemplated making the instillation of the
unit mandatory for those persons who are convicted of a second drunk
driving offense.
Putting a Cork on Social Host
Liability: New York Rejects a Trend ,55 Brooklyn Law Review 995,
1989.
One method of combating the drunk driving problem has been to hold
people other than the drunk driver responsible. The central issue
of this article is, should social host have a legal duty imposed upon
them to care for individuals who may visit their residence. The
author cites a New York case, D'Amico v. Christie, which stated that
social guests should not be held liable when one of their guests
consumes alcohol while at the host's residence and then is later
involved in a traffic accident. The author argues following the
logic of D'Amico, that the social host may have a moral obligation to
care for individuals who are guests, but that it is bad social policy to
hold that there is a legal obligation. Because alcohol is legal to
purchase it should not be illegal to serve to adults.
This article is important because it clarifies the issue of finding
proximate cause with the social hosts which is becoming an increasingly
more litigated matter in many courts. The issue is still undecided
in many courts, for this reason it is important to understand the pros
and cons of this type of policy.
The National Clearinghouse for
Alcohol and Drug Information, Impaired Driving Among Youth: Trends
and Tools for Prevention, Chapter 4.
http://www.health.org/pubs/qdocs/CSAP3P19.HTM
This Technical Report address the issue of youth operating
automobiles under the influence of alcohol, and Chapter 4 specifically
looks at the possibility of states implementing graduated licensing
requirements as a method of controlling the incidence of youths drinking
and driving. According to the report, a graduated license is
"a system designed to ease beginning drivers into the traffic
environment under controlled exposure to progressively more difficult
driving experiences."Because young teen drivers are almost
eight times more likely then adult drivers to be involved in an accident
based on the same number of miles driven, many see graduated licensing
programs as one method to familiarize teen drivers with the rigors of
driving, without many of distractions which may affect their
performance.
Graduation can take many forms such as limiting teens to driving during
only daylight hours, limiting the number of occupants, passing road
test, etc. During this period of graduation, there is a
zero-tolerance restriction against driving with any level of alcohol in
the drivers system. The report finally examines different
jurisdictions to determine if those with graduated licensing have
experienced reduced rate of automobile fatalities among teen drivers.
The Data clearly indicates that there is a significant correlation
between graduated licensing and a lower fatality rate among teen
drivers.
While the article does show a decrease in fatalities associated with
graduated licensing, it is limited in the fact that it does not directly
address whether graduated licenses lower the incidence of drunken
driving among teen drivers. Even though it is not stated
explicitly in the report, it seems logical that measures such as
limiting teen drivers to daylight hours, would reduce the incidence of
drunk driving, simply due to the fact that the majority of drinking,
especially social, occurs in the evening. For this reason alone,
graduated licenses seem like a good option for states interested in
reducing the rate of teen drunk driving. |
