DWI: Victimless Crime

 Posted on June 24, 2008 in Uncategorized

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.