To Sleep, Perchance To Dream

There was once a time when drunk driving prosecutions were based on a driver being drunk.  That meant that a driver was sufficiently impaired by alcohol that he could not adequately drive safely, and the tell-tale was his driving.  Then things got "scientific."  Blood alcohol became the test, first at .10%, and later at ,08% when the former didn't yield enough criminals.

The argument, initially, was that the numbers meant nothing. Alcoholics typically functioned just fine at .10%, as their livers were used to being filled with booze. Larger men and smaller women had very different physical reactions to two and a half beers. Then there was the notice question, how anyone was supposed to know what their BAC was at any given moment.

But in time, the science overcame reason, and absolute numbers answered all prosecution questions.  The only real problem was that it wasn't actual science, but a quantifiable substitute for proof of wrongdoing.  Aside from criminal defense lawyers and a few drunks, nobody complained all that much.  Mothers Against Drunk Driving owned the public relations campaign, and nobody argued for the conduct that killed children. It's a tough argument to make.

Now, there is a new kid in town, the next frontier of a life of perfect safety on the road: drowsy driving.

Roadside signs around the country have long warned drivers not to doze off behind the wheel with gentle catchphrases like “You Snooze, You Lose” and “Drive Alert, Arrive Alive.”

Now the campaign against so-called drowsy driving is moving to the courtroom, with law enforcement officials increasingly pushing to hold sleepy drivers criminally accountable when they cause fatal crashes.

It's not a new concept, that people drive while tired, sometimes dozing off behind the wheel.  It's not surprising that a person with his eyes closed, his mind disengaged, his hands on a speeding projectile, stands a decent chance of killing people. One of the points often missed by those who vilify certain dangerous conduct is that it exists alongside perfectly lawful conduct that's every bit as dangerous. 

Drunk drivers have been made pariahs in our society. Drowsy drivers are sad, lacking the moral culpability of the drunk.  The people they hit, however, are just as dead.  No survivor takes comfort in the fact that the driver was asleep instead of drunk. It's not a happier cause of death.

Ridding the roads of drowsy drivers isn't a bad thing under any stretch of the imagination. Most people have driven when sleepy, some because of going days without sleep in order to make deadlines, a la long haul truck drives. Others, because they get sleepy after lunch and just can't manage to stay awake. Again, who cares why? The fact that you're tired doesn't mean I'm happy to have you kill my children.

But a warning campaign, public enlightenment, isn't where this road trip ends.

The shift from polite chiding to prosecution follows successful efforts to criminalize other dangerous driving habits, like speeding, drinking alcohol and using cellphones. But drowsy driving, which the AAA Foundation for Traffic Safety calls “one of the most significant, unrecognized traffic safety problems,” faces tougher legal hurdles. A blood-alcohol test can show whether a driver was drunk. Skid marks may betray a speeder. And cellphone records will reveal whether someone was texting right before a crash. But drowsiness is a personal and often fleeting state of mind that leaves no permanent record.

The next step will be the one that distinguishes a reasonable effort to make our roads safer from the one that facilitates criminalization, conviction and imprisonment.  Notably, we went from a time when a drunk driver was stopped because his driving was erratic and dangerous. Now, we have roadblocks to test people and police have been given the authority in some states to do involuntary roadside blood draws, an idea that would have been totally outrageous a generation ago.

It was a mere baby step in moving from eliminating the person driving dangerously because he was drunk to the person who was driving fine but had .08% BAC according to a magical black box.  If you squinted a bit, it made perfect sense.

So what kind of proof will be developed to show that someone engaged in drowsy driving? Beats me. But then, someone far more dedicated to the cause of eradicating this blight will think long and hard, and come up with some pseudo-scientific method that will be sold to the courts and public in some massive PR campaign and become the standard by which a new criminal industry is born. 

The push toward the courts has been supported by traffic-safety advocates, researchers and lawyers who say that when it comes to, say, driving without seat belts or driving while texting, educational efforts alone are rarely enough to change human behavior.

“The threat of criminal prosecution can go a long way to heighten driver awareness,” concurred Daniel Brown, a lawyer who is on the board of the National Sleep Foundation, a scientific and educational group in Washington.

When it comes to the rhetoric of changing human behavior, criminalization has long been the method of choice, a blind acceptance of the religious belief that deterrence works.  After all, look how well it's eradicated drunk driving, murder and insider trading. 

But with such august scientific groups as the National Sleep Foundation aboard, how long before these brilliant minds come up with a methodology that will serve to conclusively prove guilt?  And since it's under the rubric of science, mere mortals like judges and juries couldn't possibly dispute or reject it.  Stand back, we're doing science here.

Sharp lawyers are already scarfing up domain names like New York Drowsy Driving Lawyer, and advocacy groups are busy calculating how many inadvertent head nods are needed for a felony.  It's coming.









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