The Conscience of Abe’s Turn freedom of speech, defense, and life

Radley Balko posted a quick link to this Boston Herald article, which reports:

[Massachusetts state] trooper “Kathleen T. Carney was stripped of her service weapon and cruiser last week after a Dec. 1 duty status hearing stemming from allegations of brutality in the drunken-driving arrest of a 35-year-old Quincy woman, Patricia J. Dooling, on the night of Aug. 28…

There are several points in this article that ring a bell.

Firstly, the term “drunken-driving” is used 3 different times in the short news report. But people are no longer accused of drunken driving. Rather, they are accused of drinking and driving, a subtle but important difference, as Radley himself pointed out in a Cato Institute paper, 5 years ago, about the new War on Alcohol. Having now won the PR war against drunk driving, anti-alcohol zealots have begun going after the rest of us. Former MADD president Katherine Prescott, for example, told the New York Times that drunk driving “has been reduced to a hard core of alcoholics who do not respond to public appeal.” Therefore, laws have been tightened to go after drivers who are casual, light drinkers, even if they’re not even close to drunk. One of MADD’s new slogans is “You drink and drive; you lose.” According to the new religion, any alcohol is too much.

This trooper, Kathleen Carney, was awarded MADD’s “Drive for Life” award. As you can gather, MADD plays a villainous role in the Cato Institute paper above. MADD is no longer an organization who fights against drunk driving. Rather, they work closely with government lawmakers and regulators to progressively criminalize any alcohol consumption or anything to do with alcohol (or at least as much as they can, for now). Progressive steps include new laws that have nothing to do with drunk driving, such as open-container laws and new, lower BAC limits that criminalize even sober driving. As PR experts, MADD and their ilk fudge statistics and overstate the case for their proposed legislation. These efforts of course do absolutely nothing to help catch the few remaining drunk drivers out on the road, but they do misdirect limited resources away from these drunk drivers and toward sober individuals who may have had a drink. Radley even points out, rather than protecting the interests of responsible, law-abiding citizens, some laws even attempt to strip innocent drunk-driving suspects of their due-process rights. (Does this remind you of any other set of backwards laws that are currently on the books?)

I took a keen interest in this subject recently, when I inadvertently broke the law. You see, I have a medical problem: hypercholesterolemia… High cholesterol. In an attempt to mitigate it and help to protect against stroke and heart disease, I drink a glass or two of red wine each day. Numerous studies have shown that moderate, consistent drinking of red wine or dark beer may mitigate high cholesterol and may reduce the risk of heart attack or stroke.

Now, on one particular Sunday, I and the family were to visit my parents. I brought a bottle of wine, so that I could have a glass with Sunday dinner. Unfortunately, the only bottle available had already been opened, and I had no means of transporting it in the trunk. Dinner was at 2 PM. I had 4 oz. of wine with dinner. We left for the drive home at 6 PM, 4 hours later. I was not drunk—I wasn’t even drunk at 3 PM. Even so, I wondered what I would tell the cop if I were to have been pulled over on some traffic stop. Have I had a drink? Well, technically, yes, but it was so long ago as to be irrelevant. Do I answer “yes” and brand myself as a prima facie lawbreaker? Or do I answer “no” and risk lying?

I also wondered what might happen if this hypothetical cop were to discover the bottle of wine my daughter was holding between her feet on the floor. At that point, I wasn’t even sure whether it was technically a so-called “open container.” I feared the worst if I were to be pulled over, and my paranoia got the better of me, and I drove exceedingly carefully. When I got home, I was anxious to get the bottle of wine out of the car and into the house because, as I explained to my daughter, “having that in the car is probably illegal.” Confusedly, she asked me what the hell was I talking about?

As soon as I could, I looked it up on the Internet. (Thanks, Google!) An “open container” is any bottle whose original seal has been broken. And according to a recent law (courtesy of our friends at MADD, working closely with the NHTSA), it can’t be transported anywhere in the cab of the car, not even way back in the corner of the back seat where no driver could ever reach it. And whether or not you’ve been drinking is irrelevant; these laws—as MADD brags—“prohibit the possession of any open alcoholic beverage container” (emphasis added, and does that remind you of another class of laws that don’t work?) The very fact that an illegal bottle is in an illegal location gives the cops all the “evidence” they need to throw the book at you. Fortunately, here in Massachusetts, the penalty for this horrific act is a fine of between $100 and $500, making it a bit of a joke. (Whew! Still I’ve made better transportation arrangements since and will continue to do so in future.)

The first question I had, of course, was whether these laws do any good at all. A quick Google search showed a study by the National Highway Traffic Safety Administration. I was suspicious. I later learned (from Radley Balko’s paper) that this same NHTSA over-counts “alcohol-related traffic fatality” statistics by something like 200%, so I was right to have been suspicious. I eventually read the paper by the NHTSA— At least I think I got the right paper. But it didn’t define any study methodology, and it used the flawed NHTSA “alcohol-involved fatalities” statistic, which has nothing to do with fatalities actually caused by alcohol, and it looked only at the first 6 months after new laws were enacted, which is bound to give a misleading impression (because the actual, long-term response to new laws tapers off afterward), and it didn’t seem to contain any math or any adjustments for confounding factors or any measurement of the certainty of its conclusions, and it even contained a section on how popular anti-open-container laws were with voters. Oy vey!

A little more research dug up a slightly better study by L.E. Richardson and D.J. Houston, at the University of Missouri. This one was actually scientific, actually tried to measure real data, actually used a scientific process, might have been peer-reviewed, and actually tried to account for confounding factors. Unfortunately, it too used the flawed NHTSA figures for “alcohol-related traffic fatalities.” It also failed to account for confounding factors that could have been reducing the number of traffic fatalities, outside of the new legislation itself. And the study produced some puzzling results, such as that open-container laws seemed to slightly reduce the overall number of traffic fatalities without necessarily reducing the “alcohol-related” traffic fatalities. (But this can easily be explained, once you realize that the latter is not a meaningful count but rather a political measurement.)

Bottom line: There is no evidence that criminalization of responsible, consensual conduct, with regard to alcohol, does anything to keep the roads safe from drunk drivers.

The Boston Herald doesn’t give us any hint of what the brutality allegations are against Carney. But I have to wonder if maybe Radley is onto something when he calls MADD and their ilk “neo-prohibitionists.” That is, I would not be surprised if police brutality turns out to be one of the natural outgrowths of these laws. You know what George Santayana said about “those who cannot remember the past”…

-TimK