DWI: Victimless Crime

Victim-worshipping commenters on my profile in this morning’s Houston Chronicle are fixated on whether DWI is a victimless crime.

Fortunately, the vast majority of incidents of driving while intoxicated have no victims; they don’t even result in a trip to jail. The victimocrats overclaim when they say that DWI has a victim.

In Texas, crimes are defined by statute. A DWI is, by definition, victimless: it is a crime regardless of its effect on other people. A person commits DWI if he operates a motor vehicle in a public place while intoxicated, that is, while having a BAC of .08 or higher, or having lost the normal use of his mental or physical faculties by reason of introduction of alcohol or another drug into his body.

(In fact, DWI is a crime whether you are driving or not: according to the courts, a person found sleeping in the driver’s seat, in a car with a flat tire, stopped in the roadway, with the motor running, lights on, and the gearshift in “drive,” is “operating” a motor vehicle for purposes of DWI prosecution.)

If in the course of driving while intoxicated a person injures or kills another person, he has committed the victimful crime of intoxication assault or intoxication manslaughter. That’s not a DWI. What makes the difference between a DWI and an intoxication assault or intoxication manslaughter is generally nothing more than dumb luck, but they are different crimes.

This is not to say that driving while intoxicated is a good thing to do. The dumb luck that turns a drive home from the party into a trip to the hospital, to jail, or to the morgue can easily befall anyone who drinks and drives. I’m a motorcyclist, so I have a better idea than most of the fine margin of safety on the roads. When I’m on two wheels, I’m acutely aware of every possible way the drivers around me could possibly hurt me; I ride as though they’re all trying to, but I’d much rather they not be even slightly impaired when making decisions that might possibly land me in the hospital and them in jail.

That an intoxicated driver (like a sleepy driver or a teenage driver or a distracted surgeon) puts other people in danger is true. But that doesn’t make us his victims.

We punish drivers if the State catches them driving while intoxicated and can prove beyond a reasonable doubt that they were driving while intoxicated, and we should do so. But we should do so for the right reasons: not because they have victimized others, but because we want to discourage people from unnecessarily subjecting the rest of us to any more dumb luck.

Every crime doesn’t have to have a victim. There are other victimless crimes: discharging a firearm in city limits (dumb luck could turn it into a manslaughter or an aggravated assault); speeding (the same); indecent exposure in a public place (dumb luck could turn it into indecency with a child).

Or culture needs heroes. We don’t need victims. We don’t need to worship them, we don’t need to lionize them, we don’t need to exalt them, and we damn sure don’t need to invent them.

Update: Ft. Worth criminal-defense lawyer Shawn Matlock thinks not only that is DWI is victimless, but also that it shouldn’t be a crime. I tend to disagree with him, and am mildly startled to find myself to the right of Shawn on any issue.

Further update: New York criminal-defense lawyer Scott Greenfield argues that DWI should be a crime.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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15 Responses to DWI: Victimless Crime

  1. sctexas says:

    “Every crime doesn’t have to have a victim. There are other victimless crimes: discharging a firearm in city limits (dumb luck could turn it into a manslaughter or an aggravated assault); speeding (the same); indecent exposure in a public place (dumb luck could turn it into indecency with a child).”

    I agree to a point, but if some dude shows me his junk in the parking garage, you damn well better believe I am a victim in that scenario.

  2. Windypundit says:

    “philosopher/criminal defense attorney”?

    I hope you have that on your business card.

    Some of the confusion arises because “victimless crime” has a number of different meanings. The way in which DWI is victimless is different from the way in which, say, prostitution or drug use is victimless.

    To avoid confusion, Peter McWilliams has suggested that crimes like prostitution and drug use should be called “consensual crimes” to emphasize that every participant consents to the consequences.

  3. Mark Bennett says:

    SC, maybe so, but a victim is not required to make the crime. Most indecent exposure cases are made by cops who seek out the exposure.

    Windy, do you think maybe SC protests too much?

  4. sctexas says:

    Oh mark, you clever little devil you. Not wanting to see some dude’s schlong doesn’t make me gay–it makes me an aesthete.

  5. Windypundit says:

    I’ve heard (from Lammers, I think) that (at least in some states) there’s no such thing as a breach of the peace of a police officer—he’s not out there because he wants peace. I’ve often thought that idea should apply to some other crimes—the cop should not be the complaining witness.

    As for SC, I don’t know him well enough to say.

    Sigh. As much time as I’ve spent visiting the hospital lately, if “some dude shows me his junk” I’m not sure it would even register as unusual.

  6. Bill M says:

    Just read through the comments on your Chronicle story. It’s something I rarely do anymore. Something I’ve always found strange: commenters on local newspaper sites are always the most extremist (or vicious) group on the internet (and that’s saying a lot). It seems true of every newspaper I’ve ever read, whether American and foreign. Something about the local paper brings out the parochioal, knee-jerk reactions.

    Now having set the stage, the commenters on your article were pretty even-keeled. There was only a relatively moderate proportion damning you outright, which was surprising given that: 1) you’re a lawyer, 2) who unapologetically defends the accused, and 3) this is a newspaper website.

    You put out some pretty challenging ideas in very straight-forward language. Based on the comments, I’d say you made more than a few people really stop and think.

    Congrats.

  7. john gibson says:

    I’ve heard the defense put forward that he would not have driven the car if he had not been so drink.

  8. Mark Bennett says:

    SC, not wanting to see some guy’s schlong doesn’t make you gay; protesting that seeing it makes you “a victim” does raise questions, though.

    Bill M, Thanks. I usually don’t read Chronicle comments — they make me feel dirty. But since it’s all about me this time (sorry, SC) I read them. They did get better toward the end.

    John, I think that defense should work here. Any crime requires a voluntary act; the “act” in DWI is driving; if the person is driving involuntarily, it shouldn’t be a crime. I doubt that our courts of appeals would agree with this fundamental proposition.

    BTW, Windy, Epictetus said “Don’t call yourself a philosopher; behave like one.”

  9. Ron in Houston says:

    DWI is probably victim less about 80% of the time. I understand your distinction about DWI and intoxication manslaughter, but it’s just too fine of a distinction to say that DWI is totally victimless.

    It’s the other 20% that’s the problem. Walter P. Moore who designed the Astrodome was the victim of a DWI driver.

    The problem is whether our reaction to the “problem” is appropriate or justified.

    I know I’ve been guilty of DWI. I didn’t kill anyone or even cause an accident. I didn’t get caught or convicted. Should I have been given a criminal record for the rest of my life? I don’t think so. Then again, I’d suppose that you’d say I’m biased.

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  11. It needs to be a balance. To say “speed is a victimless crime” is not exactly accurate. The three greatest contributers to fatal accidents are speed, alcohol, and (lack of) seat belts. Does that mean the government has no interest in prosecuting people who don’t wear seat belts, speed, and drink alcohol then drive? Thus, to say it shouldn’t be a law would go too far. Then again, if you’re sending people in Houston to a year in jail for their second offense, maybe you should rethink the laws.

  12. Mark Bennett says:

    Ron, WJ, I think we have to distinguish the act (driving while intoxicated) from the crime (DWI). The act can have victims; the crime — by definition — does not. A victim is not necessary to make it a crime.

    I would bet that driving while intoxicated is victimless at least 99.9 percent of the time. I think it’s less than one time in a thousand that an impaired person gets behind the wheel and someone (or someone’s stuff) gets damaged as a result. Most of the time the intoxicated person makes it home just fine, like you did, Ron (and if you didn’t get caught or convicted, you weren’t legally guilty of DWI).

    I think there’s an analogy to be drawn between the act of driving while intoxicated and lots of other activities. For example: surgery can kill people. Yet not only do we not call surgery a crime with a victim, but we don’t call it a crime at all.

    Of course speeding is victimless. A risk is not the same as a victim. If there’s a victim, it becomes something else. Not all crimes need victims to be justified.

  13. shg says:

    The consensual crimes, prostitution and drugs, are by-products of our Puritan political ancestry. Drunk driving is a bit different. It is “victimless” in the sense Mark means, as it is enhanced as soon as there is a “victim” or collateral consequence.

    But the crime, regardless of the outcome, is the volitional acts of drinking and driving, thereby setting up the scenario for a potentially tragic outcome. DWI only means nothing bad happened by the time you got nailed.

    The consequences are the result of turning it into another bogeyman crime, creating the impression of far greater moral turpitude and harm than reality justifies. But there will never be balance as long as groups like MADD exist and politicians get elected playing on fear of harm.

    On the other hand, I know many people who feel zero tolerance for drunk driving. Of course, they conveniently forget their own days when “dumb luck” got them home safely and without being arrested.

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  15. John David Galt says:

    I can see both sides of this argument.

    Yes, drinking any amount and driving does increase your chances of an accident (although that’s lumping together a wide range of possible cases, some of them MUCH more risky than others).

    In numbers, your chance of an accident causing any injury or death on one trip home is increased from about 1 in 20 million to 1 in 200,000. I wouldn’t drive drunk myself, but it seems to me that 1 in 200,000 is an acceptably low risk.

    But what we should REALLY be questioning is not the DUI law itself, but the way that law enforcement has lobbied for and used “secondary” laws, or misinterpretations of laws, to effectively destroy the presumption of innocence for anyone who “just might” have drunk something and driven before the cop got there. Examples of this range from the open container law, to the practice of arresting someone sleeping it off in his car, or pushing a car home with the engine off instead of driving it, or even arresting people for public intoxication just for being over .08 in case they “just might” plan to drive later.

    So long as the police are willing to perpetrate the abuses I’ve just listed (all of which are common in my area), I’ll never make a call to the police that might cause one of them to happen to anybody.

    The presumption of innocence is the ONLY thing that makes America a country worth defending. No price is too high to keep it — or to get it back.

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