DUI a victimless crime?
Driving under the influence is usually a victimless crime. If someone is killed or injured in an accident that involves an intoxicated driver, then there is a victim involved, but the charge will be Felony DUI in South Carolina, not DUI. Most of the time, DUI involves a traffic stop where no injuries are involved, field sobriety tests, breathalyzer or a blood test, and no victim. I say usually it is victimless, and not always, because there are times when a two car collision results in a misdemeanor DUI charge and yet there are not injuries sufficient to raise the charge to felony DUI, or there are times when a one-car accident while intoxicated results in property damage.
Shawn Matlock at the Matlock Blog makes the argument that DUI should not be a crime. He points out that DUI's clog the court's dockets more than any other type of case, and that DUI's are about two things: driver's licenses and money. He suggests that DUI's are more administrative issues than they are crimes, and perhaps we should begin treating them that way. The license restrictions and the financial penalties could be handled administratively, without every misdemeanor DUI going through the criminal courts.
People who come to me after being accused of driving under the influence are, without fail, most worried about losing their license. If they refuse the datamaster and their license is suspended, we request an administrative hearing to regain their license and they can get a temporary license until the hearing. If they are convicted of DUI, they will lose their license again. People need their driver's license to get to work, to take the kids to school, to buy their groceries, to survive.
The worst consequences of a misdemeanor DUI conviction, as Matlock points out, are the license suspension and the financial consequences. In South Carolina, it is 150$ to request an implied consent hearing and 100$ to obtain a temporary license from the DMV. Fines can run into the thousands for the DUI and related traffic tickets. ADSAP, which is mandatory if you lose the administrative hearing or if you are convicted of the DUI, can cost up to 2500$. 100$ reinstatement fee after the 6 month suspension for a DUI 1st offense, and then SR-22 insurance for 3 years which can cost thousands more. And this does not take into account the cost of hiring a DUI attorney to fight the charges.
I believe that there should be no such thing as a victimless crime - if there is no victim, there is no crime, only extraneous regulations and restrictions imposed on us by an out of control government. Among others, this includes drug possession and use, prostitution, gambling, and most misdemeanor DUI's.
I understand that when a person's family member is injured or killed by a drunk driver, that person is angry - they are a victim (of felony DUI). They want to make a difference, and prevent the same thing from happening to anyone else, and they need to do something to help the healing process. And these are the people that legislatures are responding to in passing get-tough-on-DUI laws, but criminal law is not the answer to every social ill. Instead of criminalizing more conduct, scarce resources can be put into prevention and treatment. We can find more creative ways to solve society's problems than locking people up in jails.
My opinion is that victimless DUI's should not be a crime. Felony DUI carries quite severe penalties and is vigorously prosecuted. When a misdemeanor DUI results in property damage or minor injuries it should be prosecuted as a crime, because there is a victim. When a person drives and is obviously under the influence to the extent that it impairs their ability to drive (which is not the case in many DUI arrests), a civil penalty or forfeiture of license is appropriate provided there is due process.
Of course, my opinion does not matter to the South Carolina legislature - DUI will not be decriminalized, the DUI laws will be enforced, and harsher and harsher laws will be passed. DUI and other traffic offenses will continue to be a cash cow for local governments. Any legislator who agrees that when there is no victim there is no crime will never speak the truth publicly, because it would be political suicide. Harsher DUI laws, more restrictions on convicted sex offenders, and tougher drug laws wins votes. Beating the DUI drum is a sure-fire way to work a constituency into a fever, and we will hear it again year after year.
Comments
By this theory, isn't shooting into a crowd a victimless crime if no one is hit? We can quibble about which is more likely to produce injury about which the state may be concerned, but ultimately it would be a discussion of degrees.
How about if I swing a plank of wood at someone from behind, and miss? They didn't see me and were not put in fear until, if at all, after the fact. Victimless?
If I manufacture a product that can be harmful if made improperly, and make it improperly to cut costs, and the danger is detected and stopped before anyone is harmed by the product, is that a victimless crime?
It would seem that this vision of the legitimate scope of the criminal justice system would also cast the law of attempt and conspiracy into doubt.
Posted by: Ken | July 6, 2008 10:44 PM
I think these are very good examples, actually. What is different about attempt and conspiracy crimes is intent. A person who fires into a crowd can be charged with assault with intent to kill, because they intended to hit someone, whether or not a person is struck by the bullet.
To be convicted of conspiracy, the person has to intend to be a part of the conspiracy - there has to be a meeting of the minds, and take some act in furtherance of the conspiracy.
A person who drives after drinking does not intend to cause harm to anyone. Typically they intend to go to the store for a pack of cigarettes, or they intend to go home and go to sleep.
Products liability is also a good example - corporations are not usually charged with a crime for making an unsafe product. They get sued. If they detect the danger before anyone is harmed they don't get sued - an example of a system other than the criminal courts, the tort system, working to counteract a social ill.
Posted by: bfrederick | July 7, 2008 6:04 AM
But someone who fires into a crowd might not intend to kill someone; they might merely be recklessly indifferent to the consequences of their actions.
Growing up I had a friend with a compound bow. Occasionally, despite all his friends telling him he was acting like an idiot, he would fire it from his backyard into a nearby valley, where there were several houses. He just liked watching the arrow fly like that. He didn't mean to kill anyone. But he was certainly indifferent to the risk he posed.
Specific intent to harm -- as opposed to indifference to risk to others -- shouldn't be a prerequisite for criminality, I think.
Take another example. Should it be a crime for an airline pilot to drink before flying, if no crash results?
Some actions expose fellow citizens to a heightened risk of death or injury, and reduce the defendant's capacity to exercise due care. Criminalizing that strikes me as an entirely legitimate policy choice.
Posted by: Anonymous | July 7, 2008 3:20 PM