Sunday, January 24, 2010

I'll Drink To That !

In the old days, I would have drunk to a warm handshake, but as a non-drinker today, I have no dog in this fight. But the fight itself could be a real donnybrook, so it should be fun to watch. Vermont legislators will soon be debating a bill lowering the drinking age back to eighteen. That would make Vermont the first state in the Union to lower the drinking age from twenty-one since South Dakota caved in to the federal highway mandate in 1988.

In 1984, Congress passed the National Minimum Drinking Age Act requiring states to raise the drinking age to twenty-one or face the loss of federal transportation money. As a neo-federalist I'm all for reaching sensible conclusions about drinking and driving, but I'm a strong opponent of federal intrusion into state matters. After all, Congress is specifically empowered to withdraw federal funds from "sanctuary cities" that refuse cooperation with federal immigration authorities, and cities like San Francisco and Los Angeles are sucking up millions of federal dollars with no interference from Congress. In the law, that's called "selective enforcement."

MADD (Mothers Against Drunk Driving) played a major role in getting the federal statute passed. As a dues-paying member of DAMM (Drunks Against Madd Mothers) at the time, I naturally opposed the measure. Today, MADD will be the major force opposing the Vermont legislation. DAMM doesn't seem to have a presence anymore. I guess my lengthy absence took the wind out of their sails.

Two bills are currently pending in the state legislature. The first is the drinking age proposal. The other is a resolution asking the state's Congressional delegation to urge an exception to the federal statue for Vermont. Shades of the Cornhusker Kickback and the Louisiana Purchase. Getting an inexplicable exception for your home state seems to be the trick du jour. Perhaps the Vermonters are asking for an exception on the grounds that you have to be drunk to listen to anything said by former Vermont Governor Howard Dean. In fact, you had to be drunk to vote for him in the first place.

Vermont legislators estimate that without the exemption, the state stands to lose about $17.5 million in highway funds in the first year. But what is that compared to tipsy teenaged boys on a testosterone rush getting behind the wheel of an automobile while rushing to the polls to vote for the blessed legislators who are trying to pass this bill? "Rock the Vote, But First Have A Boilermaker." Experts in opposition to the bill point out that numerous studies since passage of the original federal legislation have revealed things about the adolescent brain that weren't known at the time of passage. That part of the brain that exercises judgment develops substantially later than the part that seeks out reward and risk. Young people who start drinking before age fifteen are fifteen times more likely to become alcohol-dependent as adults as those who wait to drink until they're twenty-one. Since this bill concerns eighteen-year olds, I assume the statistics fall somewhere in between.

Proponents of the bill, such as John McCardell of "Choose Responsibility," say that "We can either try to change the reality, which has been our attempt since 1984, and which as is always the case in times of prohibition, has simply failed. Or we can, through enlightened public policy, create the safest possible environment for the reality." In his testimony before the Vermont legislative committee, he went on to say: "The higher age encourages unsafe drinking by driving young people into locked dorm rooms, off-campus apartments and farm fields to do their consuming." I don't want to be a spoilsport here, but isn't that where they're already smoking their marijuana?

Contra, Johns Hopkins professor David Jernigan says: "Whatever problems the twenty-one minimum hasn't addressed should be handled with education, increased taxes on alcohol (swell, more taxes), and more study, not by lowering the minimum. It's kind of like putting a fence around a swimming pool. People are still going to jump the fence. Does that mean it doesn't make sense to have a fence? I would argue no," he said.

The best statement of federalist principle that came out of the committee hearing (which passed the proposal on to the debate floor) came from State Representative John Moran, who opposes a lower drinking age but believes the decision should be Vermont's, not Washington's. A Democrat from Wardsboro, Moran said: "We don't want the federal government to tell the state of Vermont. This is an issue the state of Vermont should be discussing, as we've done today."

I'm neutral on the issue of the drinking age. After all, I come from the era that asked: "If they're old enough to give their lives for their country, aren't they old enough to have a drink?" But both sides have good arguments, and I'm waiting for one side or the other to strike the final blow before making a decision. On the other hand, if this becomes a national debate on the right of states to make their own laws without interference from the national government, I'll risk a little security in exchange for freedom to choose. Drink away, teeners, but keep your cars off my lawn. And lest I forget, since Vermont has the most liberal gun laws in the nation, maybe I should consider asking them to leave their guns at home when they're drinking. Or is Vermont's extremely low death rate from guns (responsible gun ownership) also an argument for responsible drinking? I'm confused. I hope we can get some comments that will guide me down the right path.

30 comments:

StanH said...

Interesting dilemma with this Lawhawk. I know in the ‘70s I thought changing the drinking age down to 18 was the right thing to do. And I to subscribed to the notion that if you’re old enough to die for your country you’re old enough to have a drink. However now grown with my kids going through the same years, I think that it should be 25…kidding. I guess I come down to letting the states make their own laws.

AndrewPrice said...

I don't have any problem with them lowering the drinking age. What they need to think about is changing the punishment for drinking and driving -- ban any teenager caught driving. . . er, drinking and driving, from driving until they turn 21 and impound the car for 6 months, no matter who owns it.

BevfromNYC said...

StanH - that argument only worked when we had a draft. I could drink legally as 18 and I don't remember my friends drinking like they do today. Were we just more responsible?

Our dysfunctional state legislature is set to pass new drunk driving laws in NY to make it a felony to drive while drunk with children on board.

LawHawkSF said...

StanH: These laws can get complicated. The drinking age in New York City in '64 was 18. I had just arrived as a twenty year-old and found out quickly that I could now do what I couldn't do in California. Oddly, I drank more sensibly in NY than I had back at home. But at the same time, NYC had a problem with Jersey kids coming into NYC to do their drinking because they also had a twenty-one year old age minimum like California. They seemed to see it as an opportunity to get riotously drunk, and worse yet, to try to drive home after too much imbibing. So, many of the bars didn't allow anyone under twenty-one in, despite the legal drinking age. It would be interesting to know if that problem was fixed when New York also moved up to age twenty-one. Bev?

LawHawkSF said...

Andrew: California's current drinking-and-driving laws are very close to what you've proposed. It originally was designed to keep sixteen-year olds from drinking and driving (they get their licenses at sixteen), but it seemed to work well enough that they tightened the law by adding the impound provisions. It doesn't cover ownership by non-family members however, so it doesn't have as much effect on teenagers getting drunk and driving their friends' cars. The impound is just a standard impound, not six months, but in California that's still going to cost somebody between four and five hundred dollars to get the car back.

LawHawkSF said...

Bev: I'm not sure if the draft argument is valid or not, but I see your point. Still, most of the recruits today are under twenty-one, so they're not only in the military, but they volunteered their service to America. If anything, I almost see that as an argument in favor of them being allowed to drink--they've already demonstrated their responsibility by enlisting. On the other hand, some of the best bar-brawls I ever got into were with young military types who also had fake IDs (yes, I do have a checkered past).

LawHawkSF said...

Bev: I forgot to ask again--did the twenty-one year old limit have any effect on the problem NYC used to have with the Jersey Boys (in those days, it was never the Girls)?

AndrewPrice said...

Lawhawk, I like the longer term impound idea because it's truly inconvenient to the owner's day to day life. That's the real incentive, money isn't that big of a deal in the world of credit card spending. . . but losing your car for six months would be significant.

Many state go to take away the license, but that alone doesn't work because a great many people keep driving even without it -- and in some instances, you just let others in your family drive for the 90 days or whatever. But losing the car would be a real disincentive.

(By the way, I'm opposed to seizure laws -- too corrupting.)

I'm also not convinced that these devices that make you blow into them before the car will start are effective either because you can easily get someone else to do that for you -- I've had several clients tell me that.

BevfromNYC said...

LawHawk: I am shocked, yes, SHOCKED that you drank without benefit of legally obtained identification!

Underage drinking continues to be a huge problem. Lindsey Lohan did her best public drinking while under 18 and have many of her friends Paris and Nikki Hilton. Yet no bar ever lost their liquor license. The good news is that they don't drink and drive because of our excellent public transportation system. Seriously. There will alwasy be a problem with the "bridge and tunnel" trade, but the laws are getting more agressive.

LawHawkSF said...

Andrew: I can't argue with that. If someone wants to defeat a safety-device, he will. And as you said, that one's easy to defeat. I see your point on the six-month impound (which, by the way, would also increase the amount of money it would cost to get the car out of impound), but I really can see a strong argument for writing the statute carefully, since I can easily conceive of car owners outside the family who are genuinely innocent of any wrongdoing.

Mr. Smith lets his son, sixteen year-old Johnny, a very responsible youngster, to borrow the family car for a school event. He doesn't know that Johnny's friend Jack Smith, a very manipulative young man and Johnny's buddy, has a drinking problem. Johnny has let Jack drive before, with no drinking involved, but Mr. Smith is unaware of that fact either. Jack has decided that tonight, they are going to have a few drinks and pick up girls after the school event, and convinces the meeker Johnny to let Jack drive. Red lights and sirens ensue.

Mr. Smith neither knows nor has reason to know that Jack will be driving or that Jack likes to drink. A simple impound of Mr. Smith's car would inform him of the problem of Johnny's friendship with Jack, at a serious cost, but wouldn't take the Smith family car out of play for six months.

Should Mr. Smith's family car be impounded for six months because of things over which he had no control and no way of knowing?

Hey, I think I just wrote a Bar Exam question (or is that a bar question?).

LawHawkSF said...

Bev: It gets worse. I made a very good living as a lawyer by, among other things, defending bar owners and bar managers against charges brought against them by the Alcoholic Beverages Commission and the police. I guess I felt I owed it to them. Can't remember the last time I had to pay for a drink in my old Southern California haunts. Which might explain why I don't drink anymore. LOL

Good to hear that the laws are being enforced aggressively there, regardless of whether the miscreants are eighteen or twenty-one.

AndrewPrice said...

Lawhawk, Yes, they should impound the car. Because (1) kids will then just loan each other their cars to avoid the law, which allows the less honest kids to evade the law and the more honest ones to get punished, (2) that's too easy of an excuse to use -- I didn't know my kid was going to loan the car out, and (3) people are ultimately responsible for their own decision.

It's time for parent to start taking responsibility for their kids. . . forget this Jerry Springer culture. If the parents can't trust that the kid won't loan the car out to their friends, then they shouldn't loan the car out in the first place. It's still their fault, as they are the adult and guardian of the kid.

LawHawkSF said...

Andrew: I can see your point as far as the parents of the drinking kid goes, but I don't see the rest of it. A six-month impound of the car of the misbehaving drinking kid makes sense. The parents have every reason to know about their own kid's bad habits.

I had enough trouble watching and monitoring my own kids' behavior. My wife and I did our best to know their friends, but we couldn't run background checks or hire private detectives to check them out. Teenagers change friends like they change clothes, and it was a full-time job just keeping our own kids out of trouble. Teenagers are devious, and the smarter they are, the more devious they are. Twenty years later, we continue to find out things they shouldn't have done, but got away with.

I'm afraid I just can't get with that kind of draconian punishment of an innocent third party. Furthermore, if my car got impounded, even for one day, because of my child's poor decision-making, my parental skills would undergo an immediate modification, and my parental strictness and conscientiousness would be raised a level or two.

If Mr. Smith knew or had reason to know that his child would lend the driver's seat to his drinking buddy, then the six-month impound would make sense. But I know from long, painful parental experience that we can't know everything about our own kids, let alone someone else's. We can be wary, careful, observant and tough, but we can't be omniscient or omnipresent in our children's lives.

Let the punishment fit the crime. Impound, yes. Six-month impound for Mr. Smith's car, no. The punishment is simply way out of proportion to Mr. Smith's innocent negligence, if it's even negligent at all. That's why I would want to see a very carefully-drafted statute.

LawHawkSF said...

Andrew: I think one of our points of divergence is that I specifically said the Smith's family car. You may be talking about the kid's own car. In that latter case, I have no problem with the six-month impound. If the kid continued to lend the driver's seat of his own car to his friends after a six-month impound, the law enforcement authorities wouldn't be the only ones taking the kid's car from him.

AndrewPrice said...

Sorry Lawhawk, I can't agree.

You're making the exact same argument that I've heard for years from the Jerry Springer set -- "how can I know what my kids are up to?" and "I can't control my kids."

I am part of the generation that knows this is a self-serving lie. I went to school with the children of the "me generation", and I can tell you that there was a very bright line between the kids of the parents who took responsibility for their kids and the parents who didn't want to be bothered. One group was good kids who took school seriously, acted responsibly, and were well behaved -- they rarely got in trouble and, when they did, it was minor.

The other group was nothing but trouble. And whenever the kid got caught and the parents were brought in, they all gave the same very selfish excuse -- "why should I be made responsible for the actions of my kids?"

This law is not draconian, it has a very simple out -- don't loan your car to your kids if you can't trust them. I'm sorry if that means your kids are going to be upset at you, but that's part of being a parent -- and it's a small price to pay to avoid having your car used to kill innocent people (possibly including your own kid).

If we put in the exception you want, the law bcomes meaningless except that it will punish the few people who made an honest mistake (the ones you're talking about) -- the rest will plan their way around it.

Also, as for impounding for one day, who cares? That's less inconvenient than getting your drivers license, renewing your tags, paying a property tax bill, or voting. How is that a real punishment? Moreover, if that's all it took to stop people from drinking and driving, drinking and driving would have stopped a long time ago because most states impound the car already.

AndrewPrice said...

No Lawhawk, I'm talking about THE car, the car that is being driven at the time of the CRIME.

LawHawkSF said...

Andrew: Then once again, we have agreed to disagree.

LawHawkSF said...

Andrew: I would also add that my wife and I were hardly "Jerry Springer" parents. I did the best I could, and she was the traditional stay-at-home mom who did everything within her power to monitor our kids' activity. Years later, my oldest daughter 'fessed up to me that even though she hated it at the time, she was grateful for our tough parenting. She actually said "I would tell the other kids that if I did something bad, my parents are very strict, and if they found out about it, and they would, I would be restricted for life." We were her excuse to stay out of trouble. She was also very smart, and knew that there were probably some things she could get away with without getting caught, but had a ready excuse not to do them. Yet on one occasion that we later found out about, she yielded to temptation and ignored her ready-made excuse. Despite all our best efforts, we didn't find out about it until she told as about it long after becoming and adult and a mother herself.

However many "Jerry Springer" parents there are out there today, there are still parents like my wife and me who should not be punished for doing everything possible to parent properly, only to have something go wrong.

I'm sorry, but I can't back away from the position that ownership of the car combined with guilty knowledge is and should be the standard. A "crime" requires both a guilty act and guilty knowledge.

"If we put in the exception you want, the law bcomes meaningless except that it will punish the few people who made an honest mistake (the ones you're talking about) -- the rest will plan their way around it." Am I reading that right? It's OK to punish innocent people who made an honest mistake because guilty people will be clever enough to get around the law through planning? The exception that I'm suggesting in a
"carefully drafted statute" would require a full evidentiary hearing on whether the third-party parent knew or had reason to know what his kid was up to at every stage of the kid's life.

Additionally, I wouldn't consider a $400 or $500 overnight impound fee along with a substantial fine to be a minor punishment, credit cards or not.

Writer X said...

I'm kinda torn on this one, and I'm not sure if I have a very good argument one way or another. I like Andrew's idea about the punishment: Limit/ban a teenager's driving privileges till age 21 and he/she might find religion real quick. Regardless of the laws, nothing compares to having responsible parents who always know what their kids are doing. I had those kinds of parents and, LawHawk, I said the same thing years later to my Dad. Man, was he strict!! ;-)

Side note: It's kind of sad (although not terribly surprising) that most states (maybe all?) only caved in to the drinking age statutes just so they wouldn't lose out on highway funds. Wasn't the purpose of the law to save/protect lives?

AndrewPrice said...

Lawhawk, I have no doubt that you were good parents, knowing what I know about your kids. But you are making the Murphy Brown mistake -- you're assuming that one set of wealthy, well-educated, motivated parents who do their best, but make a mistake, are representative of all parents. That's just not accurate. There are far too many people out there who just don't car what their kids do and then try to hide behind the idea that they can't control their kids.

Moreover, look at what you wrote about your daughter. If she knew that her lending the car to a friend against your wishes could result in the loss of that car, do you really think she would have done that? I don't -- because you raised her well. I think this law, with the rarest of exceptions, would only catch the people who don't pay attention to their kids and who won't take responsibility for not handing their out-of-control kids a loaded gun.

Also, you are not reading that right. I'm saying that what you are proposing is to create a baked in excuse/avoidance technique in the law that will let the liars and the cheats easily avoid being caught under the law, and the only people who will be caught are the very innocent people you are talking about. I don't accept your solution because it's already been tried for decades now and it's proven that it doesn't work.

A better solution to address your concerns would be to include some sort of hardship exemption combined with a first-time in trouble rule in what I'm proposing.

As for $400 being a lot, then tell me why people keep drinking and driving, or speeding, or littering?

BevfromNYC said...

Innocent third parties are held financially responsible in civil law all the time. It's what products liability is built on...

LawHawkSF said...

Andrew: First-time/hardship exemptions would be another way of writing that "carefully-drafted" statute. I see that as viable, and perhaps an answer to my objection to imposing innocent third-party punishment. I did not make the "Murphy Brown" mistake, since I proposed a full evidentiary hearing on the innocent third party defense. But your solution would work as well, and maybe do a better job of preventing future repeats. So when do we start drafting the legislation?

The drinking and continuing to drive argument only works against those who actually do the drinking and driving, not to innocent parents. I suspect if the parents are truly innocent the first time, they wouldn't be found innocent the second time because they are now on notice of their children's proclivities. The ones who keep drinking and driving after big fines, jail time, and impoundment do so because they are stupid. They don't do it because their parents are stupid. But since I've already agreed that your first time exemption might work better, this would become a moot point in the brilliant legislation we're going to write.

PS: My daughter's one transgression into criminality was not what we've been discussing here. It had to do with, shall we say, taking things that don't belong to you. The lesson she learned was that if she risked us finding out, she would be in severe trouble, guilt's a bitch (even if you got away with what you did), confession is good for the soul, and that if she ever did it again, and got caught this time, she would lose our respect and be harshly punished and watched even closer. That's where my proposal would have its strongest effect (no second chances for the formerly innocent parent or the child), but I like yours a little better. Your proposal is more direct, and easier to legislate and implement.

Obviously, we're both seeking the same goal. I think you may have gotten there first.

LawHawkSF said...

Bev: I could write a book about products liability (in fact, I almost did). It created a whole new class of ambulance-chasers that actually had to work for a living previously. Now, their only expense is TV advertising: "Do you or anyone in your family suffer from mesothelioma? If so, you have rights. Call the law firm of Dewey, Screwem and Howe." I wonder how these clowns are going to make a living when the asbestos legislation hits its final deadline.

Criminal law is different from civil law in one major factor. In civil law (which is not specifically addressed in the way criminal law is), an "innocent" third party can be held civilly liable for doing something perfectly legal and which even has a huge public benefit if someone using the product is harmed through no defect in the product or the company that produces it. Applied reasonably and logically, that's fair because it's simply part of the cost of doing business. In fact, the cost of money damages for injuries or harm from the otherwise useful product is usually built into its price for exactly that reason.

Unfortunately, with lawyers like John Edwards running the show, legitimate claims have been trivialized by making aggressive and questionable litigation into a major industry for lawyers. Strict liability in tort has become a cancer on the legal system. In ordinary negligence cases, the determination of utility of the act versus the risk of harm is the test. In products liability and strict liability in tort, negligence is not even an issue. It is known in advance that a perfectly produced product, with great benefits, administered with no negligence at all, will statistically cause harm to someone.

In criminal law, intent without the act or act without the intent cannot be the basis for prosecution. The actus reus (criminal act) must exist at the same time and in the same place as the mens rea (the criminal intent).

Criminal intent (scienter, or "guilty knowledge") can be express, or implied from the act (or failure to act). That is the shuttlecock that Andrew and I have been batting around. If Mr. Smith in my example has done everything right, and neither knows nor has reason to know that his son is going to turn the steering-wheel over to a friend who has been drinking, then he has no criminal intent, even if the criminal act was committed in his car. But if Mr. Smith didn't know, and found out only after the arrest, he could no longer claim he didn't know or was expected to know a second time around. Willful blindness and willful negligence can rise to the level of intent, even if it's not the conscious intent of the third party.

PS: Sorry--final score. Indianopolis 30, New York 17.

BevfromNYC said...

Thanks! Now I understand.

Asbestos litigation is too big to fail! One day Congress will have to bail them out...

LawHawkSF said...

WriterX: I apologize. I got side-tracked debating
Andrew about the parental responsibility issue and overlooked your comment.

I think the parental strictness thing is somewhat generational, though the "do your own thing" concept has become dominant because of the 60s rebellion. My father never laid a hand on me, but knew that he was capable of it, and I wasn't about to risk it (he was huge, and very strong). My mother succeeded more with moral and Biblical persuasion. With that combination, I didn't stray much, and when I did I was so guilt-ridden that I never repeated the bad act.

It's hard to tell sometimes which states caved in to federal pressure, and which ones did it out of sincere belief that the formula was right. So I can only condemn those that made the decision based solely on the threat of the withholding of federal funds. Sometimes doing the right thing, and asserting the rights of states to make their own decisions comes with a cost. If for no other reason, Vermont is to be much admired if they change their law because of their own independent determination of the efficacy of defying the federal government.

AndrewPrice said...

Oh sure, blame me! Don't listen to him Writer X, he ignored you intentionally! LOL!

LawHawkSF said...

Bev: LOL. The trial lawyers are going to have to find a new field to plow soon. Asbestos litigation has been time-limited, to the credit of the feds for a change. That's why the ads on TV usually mention that "your time to file is limited, and if you don't act now, you could lose your rights." That gravy train will be drying up in the near future. Maybe they'll assist Obama, Gore and the EPA to keep up the man-caused global warming schtick so that they can get huge damages for unharmed clients "ruined for life" by the deadly carbon dioxide. Later, they can create a whole new area of unjust enrichment by suing on behalf of tree and crop owners whose plants starved from carbon dioxide deprivation. Lord, I hate ambulance-chasers.

LawHawkSF said...

Andrew: Of course it's your fault. If you would simply agree with me we could avoid all this rancor caused by your stubborn refusal to defer to my brilliance. My modesty is well-known too.

patti said...

FIGHT! FIGHT!

i got nuthin' else for fear someone is gonna pull my hair....

LawHawkSF said...

Patti: It won't be me. He's the bad guy, you know.

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