Driving Whilst Intoxicated

Debate on the topic of drink driving as a criminal offence is intense, divided and passionate. Some scholars like, Thomas Aquinas believed that intoxication was to some extent a defence, whereas Aristotle thought the punishment should be quite harsh. This paper will offer the view that drink driving should be treated as a criminal offence because people who ‘cause death by drunken driving, murder’. (Steinbock 1985, p. 295)

While the drunk driver may not be evil or intentionally set out to kill anyone, they irresponsibly and capriciously disregard human life by driving while intoxicated, knowing all along while sober, the deadly potential consequences. Steinbock refers to social, habitual and chronic heavy drinkers, but no matter what class of drinker, the fact remains that being drunk does not lessen one’s responsibility. It is all about choices and the choice to drive while drunk displays ‘extreme indifference to the value of human life.’ (Steinbock 1985, p. 291)

Husak (1994) has the view that it is difficult to accurately gauge just how serious the offence of drink driving is. He notes that “graduations of seriousness are matters of imprecise judgement” and in fact goes on to argue that drink driving is not “an especially serious offense.” (p. 53) This view seems misguided, when here in Australia drink driving generates a huge national and community burden and expense, not only in unnecessary deaths, but also injuries, emotional as well as physical suffering. Road accidents are the leading cause of death and injury in Australia. From 1925 until 2003 more than 169,000 people have been killed on the road. (Australian Bureau of Statistics, 2005) This figure exceeds the number of people killed in wars with Australian involvement. (Australian War Memorial, 2008) Alcohol has been a fundamental ingredient in many of these road accidents. While the ABS cannot ascertain exactly, drink driving is speculated to play a role in between 30 to 40 percent of all fatal road accidents. Figures the National Drug Research Institute (2000) however, do give a more precise indication and record that “alcohol consumption currently causes over 400 road deaths and 7,700 serious road injuries requiring hospitalisation a year, at an estimated cost to the community of over $1.34 billion.”

There are numerous laws that regulate drivers. Most driving offences full under the Road Traffic Act 1961. Offences enclosed within this legislation are generally summary offences, while indictable offences, like reckless driving resulting in death, form part of the Criminal Law Consolidation Act 1935. (Government of South Australia 2008). Many people support the notion that more severe consequences for drink drivers should exist and this would act as a deterrent. If judges conferred harsher punishment people may refrain from such dangerous behaviour. “If one risks losing one’s license, or even going to jail, surely one will be less likely to drink and drive.” (Steinbock 1985, p. 291) Contrary to this belief is the view expressed by Jacobs who considers that:

the option of merely increasing penalties for drinking and driving has been strongly discredited by experience to date. The most hopeful opportunities for further deterrent accomplishments would seem to lie in increasing the actual probabilities of apprehension and conviction of drunk drivers. (Jacobs 1988, p. 211)

From the deterrence standpoint, Stuart (1989) too suggests that harsh penalties for drink driving cannot be justified. He does acknowledge that “research tends to indicate that once the moderate level of severity has been reached, then the certainty of punishment is a more important component for increasing deterrence than severity.” (Stuart 1989, p. 107)

Steinbock is quite strong in her criticisms and states that the ‘slight or nonexistent penalties for vehicular homicide allow people literally to get away with murder’. (1985 p. 279) Under Australian legislation from 2005 police have had the authority to enforce instant licence disqualification or suspension for serious drink driving offences [Road Traffic Act 1961 s.471AA]. But it can be argued that the introduction of section 10 of the Crimes Act allows a magistrate to find a person guilty of drink driving, but is then able to dismiss the charge and not record the conviction. Section 10 was implemented so that a person, who in principle was guilty of a traffic offence, but because of positive and sympathetic circumstances, could be shown mercy by the courts rather than having to succumb to the full force of the law. The message here is that the courts’ discretion will usually let off offending drink drivers.

These people may not have killed anyone –yet, but unless the message is loud and clear that people must be held accountable for their actions, and while the courts continue to be averse to treating “homicide by reckless driving as manslaughter or murder” (Steinbock 1985, p. 282) then the problem will only escalate. Defendants often appeal and are then guilty of minor traffic offences, which often are not stated in criminal histories. (Road Traffic Act 1961 s.47B) This does not send a serious message to drivers who drink. Even Husak (1994) who writes in strong opposition to Steinbock, notes that there exists “public cynicism over the disparity between the statutory maximum penalties prescribed by the legislature and the sentences actually imposed by the courts. (1994, p. 73) He further argues that the act of driving in itself is a risky undertaking, and a sober driver is also a danger to other road users. The act of sober driving is not negligent because it is an acceptable and reasonable act, whereas the act of drunk driving is negligent because it is unjustifiable. He observes that while drunk drivers kill, bring about personal injuries and damage property so too do sober drivers. Husak does concede however, that drink drivers do present a greater risk. The issue of probability of risk enters the debate here and it can be said that drivers are generally aware of the risk that their behaviour may provoke an accident or cause a fatality. Husak suggests that “severe punishment is unwarranted unless the defendant is aware that he is engaging in an act that the state has defined as criminal [and] unfortunately many drunk drivers do not realize that their behaviour is illegal.” (Husak, 1994, p.71) On this point Gould’s (1998) summary seems more appropriate when he states that “a person doesn’t have to be morally brilliant to know that drunk driving is wrong. The problem of drunk driving is a problem of doing, not of knowing.” (p. 352) Earlier this year a man killed six Mildura teenagers with his dangerous and criminal driving and was sentenced to a mere seven years in jail.

The man’s previous convictions included eight counts of drink-driving, driving while his licence was cancelled, burglary, destroying property, theft and driving an unregistered vehicle. He fronted court on 40 counts between 1991 and 2003. Many people aren’t fearful of being prosecuted for drink driving offences. Severe penalties should be in place as a deterrent.The probability of a death occurring as a result of drink driving increases every time a person drink drives. For the full wrath of the legal system to be felt and known, it must be used to its full advantage. Offenders should be made an example of and harsher criminal punishment should be given for first offences. The law should not be sympathetic towards those who injure others while under the influence of drink. With all the anti drink driving announcements appearing regularly on television, radio and in magazines, initiatives often supported by insurance companies, car manufacturers and even the liquor industry against drink driving, one can hardly claim to be unaware that drink driving is illegal. Jacobs adds that drivers may be aware of what is dangerous and illegal but continue to engage in that behaviour and that “it would be simplistic to believe that if people are told that drunk driving is dangerous, irresponsible, illegal, and punishable by serious labelling and sanctioning, they will forever desist from this behaviour.” (Jacobs 1988, p. 217) Fortunately, the vast majority of drivers, through commonsense, media releases or education programs, do realise the potential consequences of their actions and do not put themselves at risk and adopt a rational approach to driving which includes not drinking. Jacobs states the obvious when he remarks that “a crime is committed each time an individual drives a motor vehicle while having a BAC exceeding legal limits.” (1988 p. 175) Clearly current legislation doesn’t deter drink drivers.

Offences that made up the bulk of adjudicated defendants in Australia were the road traffic and motor vehicle offences at a staggering 44%. (ABS, 2008) It is conceded that not all of these involved alcohol, but regardless, it is an unacceptable figure. Husak (1994) further comments that “a defendant is negligent when he should be aware of a risk, even though he is not consciously aware of it … a negligent defendant fails to be aware of a risk that a reasonable person in his situation would have considered.” (p.59) Risk, he clarifies, is affected by numerous factors, including the age of the driver, traffic conditions and the time of day and he concludes that “one cannot simply assign full responsibility for all the harm involved in an accident to the driver who disobeyed a traffic law … other drivers, as well as the state, bear some degree of responsibility if they should have done more to reduce the risk of injury.” (Husak 1994, p.67) Jacobs concurs and definitively notes that “there seems little doubt that driving while intoxicated, in the absence of some extraordinary excuse, would satisfy most current statutory definitions of gross negligence, which is a gross deviation from the standard of behavior expected of a reasonable person”. (Jacobs 1988, p. 195)

In general, deliberate and intentional crimes are regard as more unethical and immoral than those which are not premeditated or unforseen. A person who, when sober knows the dangers and potentially deadly consequences of drink driving, gets in their car despite the potential consequences and kills innocent people while behind the wheel is culpable. The drink driver cannot claim he didn’t know that he could kill someone by driving in an intoxicated state. The common-law rule is that a person who intentionally inflicts grievous bodily injury is guilty of murder, if death results. So, if death or serious injury is certain or even highly probable as a result of a defendant’s actions there should then be a conviction for murder. Lord Elwyn-Jones in Director of Public Prosecutions Respondent v Majewski Appellant [1977] A.C. 443 states it succinctly that:

it is no excuse in law that, because of drink or drugs which the accused himself had taken knowingly and willingly, he had deprived himself of the ability to exercise self-control, to realise the possible consequences of what he was doing.

Additionally, the Solicitor General for Victoria in The Queen Appellant v O’Connor Respondent Supreme Court of Victoria, 1979-1980 146 CLR 64 said that the:

voluntary nature of the ingestion or administration of the alcohol or other drug renders all the acts of a criminal nature done during the resulting intoxicated state voluntary acts for relevant purposes: and that the intention to do the criminal act whilst so intoxicated must be unchallengeably presumed. Thus, the voluntary taking of the alcohol and drugs to the point of intoxication satisfied the requirements of the relevant mens rea.

To be guilty of a crime the accused must have perpetrated a crime, the actus reus, while being in a particular frame of mind, the mens rea. The mens rea of breaking and entering is the intent to steal property from the legal owner. Would therefore the mens rea for drink driving resulting in death be the intent to kill an innocent third party? On this point, the details of what constitutes mens rea need to be examined. Firstly, did the person responsible know what they were doing? Did they know that is was illegal? Were they able to decide whether to do it or not, but chose to continue regardless? If the response is positive to all of these matters then it could be argued that mens rea is absolute and the person could be found guilty. Further to this it must be added that ignorance of the law is no justification, an individual is guilty simply through the actus reus itself. Appraising the presence of mens rea in drink driving is certainly challenging and without a definitive conclusion. But while it could be argued that a drink driver might lack the capacity to actually intend to kill someone while driving, they certainly do not lack the capacity to appreciate the significant risk involved while under the influence of alcohol. Then again this issue is so much more difficult simply because drivers choose to drink. In fact it can be reasoned that this is the only rational choice they make. The subsequent choice of whether to drive or not is therefore made in an intoxicated condition, a state which may rule out mens rea. However the initial lucid choice of choosing to drink should outweigh the imprudent choice to drink drive. Ultimately individuals have free will to choose how they will act. Drink drivers know what they are doing is categorically wrong.

The issue here of right and wrong introduces the connection between law and morality, and it is a complicated one. Lord Devlin held that the law should connect with morality and that society was justified in punishing actions that transgressed against its collective morality. H L A Hart on the other hand, didn’t believe that there was a great deal of shared morality in modern society. To the contrary, in the last two decades or so, social views on drink driving has changed noticeably. Society takes a dim view of those who drive while intoxicated and many regard it as morally wrong. Currently the South Australian Government is running a campaign called “Everyone Hates Drink Drivers” and this is an illustration of the general social disapproval of drink drivers. The campaign attempts to deter this illegal and socially unacceptable behaviour. This is supported by observations from the Tasmania Law Reform Institute (2008) that it is “community expectation that harm doers will be penalised, [and] that limiting the defence will be a deterrent so the community will thereby be protected, and respect for the law will be maintained.” Many moral theories denounce drink driving. Utilitarianism, Kantian duty ethics, the ethic of care, social contract ethics and Judeo–Christian ethics all condemn drink driving because it disrespects others and causes them harm. (Gould 1998, p. 342) All these traditions bring to light the harm principle. Mill’s concept was that a person is free to make their own decisions and then lives with the ensuing consequences, but others should not endure the consequences that result from that decision. He contends that one’s actions should be accountable to the law if that action causes harm to others. Harm then is satisfactory justification to criminalise conduct.

There is no strict definition of criminal responsibility, however it generally applies that in order to be responsible for a criminal act a person has to understand firstly what they are doing and secondly that it is wrong. Other than young children or the mentally impaired most adults would fall into this category. No matter how it is argued, the plain fact exists that intoxication is not a defence to a crime. Intoxication ought to be immaterial when an individual made a conscious choice to get drunk in the first place. To accept intoxication as an excuse is to ignore the earlier decision of getting drunk. Culpability should exist in this situation since the person knowingly made a choice to put themselves in a position of recklessness with the possibility of jeopardising the welfare of others. Drink driving laws in Australia are not strict enough and drink driving must be categorised as a criminal offence. Penalties for drink driving should include drink driving sentences, imprisonment, fines for drink driving, licence suspension and drink driving criminal records.