American Judges Association


Date of this Version



Court Review, Volume 54, Issue 1 (2018)


Copyright American Judges Association. Used by permission.


Alcohol-related crashes are responsible for many of the traffic fatalities in the United States, and the sad thing is that many of these are preventable. Yet the attitude of the public toward driving while impaired (DWI)1 is conflicted, and that ambivalence is reflected in the criminal justice process. Unlike other crimes, or even smoking, the goal of the law is not to cease all drinking and driving, just drinking that impairs judgment and the ability to drive safely. The question then becomes how much drinking is acceptable before driving, which can vary by health, weight, and tolerance of the individual. On one hand, we as a society want to punish the offender who kills or seriously maims someone because of impaired driving, but on the other, we don’t want to enroll the “social drinker” into the criminal justice system. Consequently, it was not unusual in our history to either let impaired drivers off the hook with a warning or reduce their charges to lesser misdemeanors. After all, many impaired drivers do not harm others and those that do did not intend to cause harm. Therefore, some observers argued that DWI offenders should not receive severe punishments.2 Even if victims were severely injured or killed, prosecutions for manslaughter were rare, and even license suspensions and jail time were imposed infrequently.3 The words of Judge Robert S. Heise echo the thoughts of many:

The philosophy of some people is that you have to make the punishment fit the crime. But that’s the wrong way to look at drunk drivers. These are social drinkers who went a little overboard. They’re not alcoholics or criminals. Most of the time they’ve done nothing dangerous, but have merely violated a law…I just feel that some of these people [convicted of drunken-driving deaths] have already suffered more than I could impose on them.4