By George Noga

Laws often have little to do with logic; this is particularly true with drinking and driving. What we have today is a hodge podge that penalizes innocuous behavior while failing to stop the most dangerous behavior.

The incentives and proportionality all are out of kilter. Current laws penalize conditions (blood alcohol) much more than actions (moving violations). America needs a better paradigm.

“America needs a new and better paradigm – one that
penalizes drivers’ actions much more than conditions.”

Instead of merely criticizing the status quo, I have developed a MLLG model approach that decriminalizes harmless behavior, progressively sanctions risky behavior and severely penalizes the most hazardous behavior. At every step along the way, the incentives are aligned to encourage the least risky behavior. It penalizes actions much more than conditions. It makes the law much clearer and certain thereby enhancing respect for all laws. This model illustrates how laws should operate in a society that respects both life and liberty.

First off, let’s summarize the troubles with the current system. Overzealous advocates such as MADD have gotten it all wrong and and lobbied panicky legislatures into passing their agenda. They penalize innocent activities, impose harsh penalties on low-level infractions and do little to stop truly dangerous behavior. They use hokey statistics that report alcohol is involved in an accident if a passenger (but not the driver) has been drinking – and even if the driver was not at fault.

All MADD and the ersatz statistics have done is to make responsible people even more responsible while failing to rein in those accountable for the carnage. There is no rationale and the incentives are wrong. The major components of an effective and rational system are:

• Make open containers legal. If a worker wants a tall cool one on his way home, that is called liberty American style. Instead, present laws encourage the worker to stop in a bar where there are powerful incentives to have more than one – and then still drive home. Furthermore, what of the passengers; why should their liberty be denied?

• Driving with a low level of blood alcohol should be a minor offense provided the driver does not also engage in other dangerous behaviors. A rational system of laws discourages improper actions more so than conditions. A couple that goes out for dinner, has a cocktail and shares a bottle of wine is not the problem; yet, that’s who gets caught in the crosshairs.

• At every step of the way drivers should be incentivized to act in the safest possible manner within a system of logical, proportional and progressive sanctions for ever more dangerous activities. The current system focuses nearly exclusively on blood alcohol level (a condition) and fails to properly take into account a violation such as reckless driving (an action).

• Destructive behavior that imperils life and limb must be stopped. MADD notwithstanding, the worst homicidal offenders are not effectively barred from repeating their offenses. Part of the penalties imposed on worst offenders must be monitoring to prevent them from driving. Officers should be assigned full time to check randomly and to take violators who drive (even sober) straight to jail, subject, of course, to due process. The most dangerous offenders must be removed from the roads forever.

“The action-based matrix system is logical, proportional and progressive with powerful incentives and disincentives at every juncture. It respects and enhances individual liberty and offers more protection from truly dangerous behavior.”

The Matrix Assigns Points and Sanctions Based Mostly on Actions

I have developed the following matrix that assigns points based primarily on driver actions but also takes blood alcohol into account. The legal penalties (sanctions) are based on the total points which are cumulative on a rolling 18-month basis. A few examples may help. A driver with blood alcohol of 1.1% who was stopped for a moving violation would have 6 points – 3 for blood alcohol and 3 for the violation. Such a driver would be less penalized than under present law. A driver with an alcohol level of 2.0% convicted of reckless driving would have 35 points – 12 points for blood alcohol, 8 points for a moving violation and 15 more for reckless driving. Such a driver would be penalized much more harshly than under current laws.

Matrix of Drinking and Driving Points and Sanctions

Blood Alcohol                    0.8-1.2 >        1.2-1.5 >            1.5-2.0 >         2.0-2.5 >          2.5
Blood alcohol level                3                       7                        12                      20               30
Moving violation                      3                       5                         8                       13               20
Subtotal                                    6                     12                      20                       33               50
Careless or reckless            4                       8                       15                       22               40
Subtotal                                  10                     20                      35                       55               90
Accident with injury               10                    15                      20                       25               30
Total                                         20                    35                      55                       80             120

Any combination of violations within a rolling 18-month period that totals less than 10 points as shown on the matrix will result in sanctions or penalties no worse than a traffic ticket. For between 10 and 20 points, drivers would receive penalties comparable to a first DUI today. When the points are between 21 and 35, the penalties would be comparable to those meted out currently for a second DUI. Thereafter, punishments become progressively more severe.

Between 36 and 55 points, violators would receive a minimum 60 days in jail (served consecutively) and a package of sanctions including license suspension followed by a lengthy period of restrictions on driving. Miscreants who accrue over 55 points go to jail for a minimum of 120 days (again, served consecutively) followed by minimum 5-year license revocation further followed by numerous restrictions and safeguards. Note: vehicular homicide is a serious felony and beyond the scope of the matrix. Following are some benefits of the matrix.

• As blood alcohol level increases, the penalties increase, not in a linear manner but, progressively. Even if a driver drinks too much, he/she is incentivized to keep the alcohol to a minimum. Today it is impossible to know one’s blood alcohol and it can and does vary considerably from person to person and based on conditions. The matrix removes some of the uncertainty about blood alcohol while imposing steeply progressive sanctions. The present system makes little, if any, distinction between blood alcohol of 0.8% and 2.5%.

• If someone decides to drink and drive, they have every possible incentive to drive safely, not to commit a moving violation and certainly not to drive carelessly or recklessly. Remember: we are sanctioning actions more than conditions.

• Drivers know where they stand; the system is rational and proportional. Of course, people of good will may disagree about precisely how many points to assign to what behavior.

• The matrix still makes it a violation to have blood alcohol of 0.8% or more as at present; it does not make it legal to drink and drive with elevated blood alcohol.

The matrix is but one example of how Americans can enjoy more liberty and less government intrusion into their daily lives while at the same time being better protected against drunk driving.

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