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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

June 24, 2010

Why Aren't Drunk Drivers Deterred?

According to the research, judicial interventions result in only small reductions, if any, in the OWI recidivism rate. Of course, judicial interventions only involve individuals with a prior OWI. Judges haven’t had any prior involvement with the largest group of OWI offenders—OWI 1sts.

For that group, society must rely on simple deterrence principles alone to stop drunk driving. The classical deterrence principles of Cesare Beccaria, that are still argued every day in court rooms in Wisconsin, demand that the expected costs of drunk driving must exceed the expected value of drunk driving.

This theory is underpinned by the rational actor model of human behavior. The rational actor model of human behavior has been the foundation of economics and law for centuries. (It is almost certainly wrong, but that is a discussion for another day, and does not affect the analysis below.)

A rational actor makes the decision about whether or not to drive drunk by comparing the expected costs and the expected benefits of drunk driving. If the expected benefits exceed the costs, then the rational actor drives drunk. If not, then he finds a different way home or stops drinking before he is intoxicated. The decision point occurs either at the time the next drink will cause him to be intoxicated, or if he is intoxicated, when he decides to drive.

The expected costs can be calculated as follows: (The probability of being arrested for drunk driving multiplied by the probability of being convicted and punished if arrested multiplied by the expected punishment for drunk driving) plus (the probability of being arrested for injury or homicide by intoxicated use multiplied by the probability of being convicted and punished if arrested multiplied by the expected punishment for injury or homicide by intoxicated use) plus ( the probability that one will be injured or killed themselves and the costs of those results).

Research has shown that more than 90% of those arrested for OWI are ultimately convicted. This number has increased greatly over the last twenty five years with changes in the law regarding implied consent, forced blood draws, and the use of blood tests themselves. The punishment levels, including incarceration and fines, have increased dramatically through the years. The punishment for homicide by intoxicated use has increased many fold during my legal career.

What hasn’t changed much in Wisconsin, is the probability of being arrested for drunk driving (If an accident results, the chances of being arrested are quite high). Using the one published survey figure of one drunk driving arrest for every 55 drunk driving incidents, the chance of being arrested for drunk driving is less than 2%.

Based on the low arrest rate for drunk driving, a rational actor can conclude that one will not be arrested if he or she drives drunk. The rational actor will also correctly calculate that there is a low probability of getting into an accident. Therefore, the expected punishment for drunk driving is rationally quite low primarily because of the low probability of being arrested. The classical theory of deterrence fails because the expected costs of driving drunk are less than the expected benefits.

One attempt to change this calculus was to rescind the ban in Wisconsin on sobriety check-points. The hope was to raise the expectation of being arrested for drunk driving. The legislature, after balancing the interests as they should, decided not to lift the ban on such checkpoints.

However, it is clear to me to increase deterrence of operating while intoxicated, policies must be implemented to increase the probability of arrest for drunk driving. Changes in penalties, treatment, and other judicial interventions are all small potatoes compared to changes in the expectation of arrest.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

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