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When people drink and drive and then cause an accident especially where if someone dies they get years and years in prison but just the act of drunk driving is punished way more lenient. Shouldn't the 2, drunk driving and drunk driving then causing accident be similarly punished? I feel like a lot of times it's luck whether an accident happens.

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    While I can understand that the comparison you made can be seen as valid, likewise for your criticism, it may be more useful to compare "vehicular manslaughter" to "vehicular manslaughter while drunk".
    – TAR86
    Commented Aug 12, 2023 at 10:18
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    I may have misunderstood the question, but isn't this the case of someone being punished based on the severity of the crime that they committed? For example, possessing a concealed weapon is punished more leniently than stabbing someone. Commented Aug 12, 2023 at 14:37
  • Should someone suggest an edit to make clear that the determining criteria is the initial action, not the eventual outcome? Commented Aug 12, 2023 at 15:14
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    Related: Why is murder considered a more serious crime than attempted murder?
    – user45238
    Commented Aug 13, 2023 at 2:12
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    When someone drives a car, a lot of times it's luck whether an accident happens. Therefore, driving and driving-then-causing-accident should be similarly punished.
    – ilkkachu
    Commented Aug 13, 2023 at 13:21

11 Answers 11

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Moral luck

You have raised the issue of moral luck, a long recognized problem in criminal theory. The classic expositions of this issue are by Thomas Nagel, in his chapter, "Moral Luck" (1979) and Bernard Williams, "Moral Luck" (1976). Specifically, you are describing what they call outcome luck, or consequential luck.

Driving while intoxicated vs. driving while intoxicated and causing death is not the only example where moral luck results in a distinction in punishment. Other examples are:

  • dangerous driving vs. dangerous driving that causes death
  • a successful offence vs. an attempted offence (generally resulting in a maximum sentence less than that of the successful offence)

Nagel writes:

If someone has had too much to drink and his car swerves on to the sidewalk, he can count himself morally lucky if there are no pedestrians in its path. If there were, he would be to blame for their deaths, and would probably be prosecuted for manslaughter. But if he hurts no one, although his recklessness is exactly the same, he is guilty of a far less serious legal offence and will certainly reproach himself and be reproached by others much less severely. To take another legal example, the penalty for attempted murder is less than that for successful murder – however similar the intentions and motives of the assailant may be in the two cases. His degree of culpability can depend, it would seem, on whether the victim happened to be wearing a bullet-proof vest, or whether a bird flew into the path of the bullet – matters beyond his control.

...

... How is it possible to be more or less culpable depending on whether a child gets into the path of one’s car, or a bird into the path of one’s bullet? Perhaps it is true that what is done depends on more than the agent’s state of mind or intention. The problem then is, why is it not irrational to base moral assessment on what people do, in this broad sense? It amounts to holding them responsible for the contributions of fate as well as for their own – provided they have made some contribution to begin with. ... If the object of moral judgment is the person, then to hold him accountable for what he has done in the broader sense is akin to strict liability, which may have its legal uses but seems irrational as a moral position.

Two offered justifications for making distinctions based purely on outcome

Two considerations often raised as justification for differential treatment based on outcome are (David Enoch & Andrei Marmor, "The Case against Moral Luck", 26 LAW & PHIL. 405 (2007), pp. 415–17)

  • epistemological / evidential — the person who actually killed a person was more likely to have been driving more recklessly
  • the theory that the actor should have to internalize the risk, fully, when they set out on a risky activity — if they happen to kill someone, the risk of this higher punishment was part of what they should have accounted for when deciding to embark on the risky activity

A couple of quotes from Enoch and Marmor:

All other things being equal, the occurrence of an accident is plausibly considered as at least some prima facie evidence for recklessness, or indeed for a higher degree of recklessness.

A conception of fairness that requires agents to internalize the costs of their risky activities does not necessarily reflect a view of responsibility or blameworthiness. It may simply reflect a judgment about the appropriate distribution of the costs of risky activities.

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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.
    – feetwet
    Commented Aug 12, 2023 at 22:02
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    Is the "No harm, no foul" adage another interpretation of moral luck? Commented Aug 14, 2023 at 11:14
  • I appreciated reading this answer. Commented Aug 14, 2023 at 13:53
  • Good answer. I would add for completeness that there are usually 3 categories: harm intended, reckless but no intention, no intention and no recklessness. You can come from the other direction as well: why is attempted murder typically punished less than murder?
    – JimmyJames
    Commented Aug 14, 2023 at 15:36
  • Probably the wildest swings in terms of moral luck relate to the risky financial dealings of a few stock market brokers - if it works out, you are widely lauded for your brave decision making, if it doesn't you may be facing prison time.
    – xLeitix
    Commented Aug 15, 2023 at 6:07
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Drunk driving remains, per se, "victimless" - a breach of regulations - until someone actually becomes a victim. That puts less emphasis on the punitive role of the justice system and more on deterrence and rehabilitation.

The standards for charging someone with DUI are much lower than with vehicular homicide. DUI is a strict liability offense, requiring no intent, no mens rea. In about half the states it's even possible to get a DUI conviction for sleeping in the back seat of a car. In no state is it possible to kill anyone (other than yourself) solely by sleeping under the influence.

The system of tiered offenses with different culpability requirements is about as strong a deterrent as the public can accept. It allows handing out the first tier of penalties in as many situations as possible, while allowing for heavier charges when there are consequences or aggravating factors.

Not applying the penalty for the worst possible consequences for every act also avoids "in for a penny, in for a pound" perverse incentives, prompting one to exercise whatever amount of caution they still can.

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    +1 for in for a penny, in for a pound. Cop tries to pull you over for drunk driving and it's essentially a capital charge, well, let's see how fast we can go and if we get caught, it still maybe possible to kill the cop and get away. Floor it.
    – jmoreno
    Commented Aug 12, 2023 at 19:03
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    @jmoreno "What's the penalty for being late? Execution. What's the penalty for rebellion? Execution. We're going to be late." Thus begins the fall of a Chinese dynasty.
    – nick012000
    Commented Aug 12, 2023 at 21:55
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    For the others: @nick012000 is talking about the Dàzéxiāng Qǐyì of 209 BC, when two generals rose up in "Big Swamp Village" against the Qin dynasty because they would be delayed from arriving in the area they were tasked to defend due to bad weather... and the two generals became the first rock that would in the end topple Qin China - and the rise of the Han.
    – Trish
    Commented Aug 13, 2023 at 6:36
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    @FrederikVds The penalty for vehicular homicide can be up to 99 years in some states. If that applied to a simple DUI, the most rational option if stopped is to take your chances on the road, not in court. Caution can be exercised at multiple stages; the decision to drink or not is only one of them. The choice between not driving, crawling home at 10 mph, and going "fast and furious" is another.
    – Therac
    Commented Aug 14, 2023 at 14:40
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    @FrederikVds This refers to a situation where you have been stopped or flagged by the police. Currently, everyone just complies, unless they're carrying a dead body or a dozen kilos of drugs.
    – Therac
    Commented Aug 14, 2023 at 17:38
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Drivers are negligent all the time. Not only by drunk driving, but also by speeding, driving when really tired, etc.

The question is, what level of negligence is enough to call it recklessness?

The rough method that is applied here is: If you killed someone, and the killing is connected to your negligent behaviour, then it was probably reckless.

It is not the best method, but it is also not completely unreasonable.

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Have you seen or watched the movie Minority Report? People were arrested and imprisoned based upon what they would have done in the future.

While you are probably unable to drive in a reasonably safe manner in that condition, getting into an accident moves that from probably to certainly. You didn’t just subject yourself and others to an unmeasurable (possible) increase of risk to their safety, you actually caused harm.

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The question "How drunk is drunk?" is legally more flexible than "How dead is dead"

Ultimately, the range of "Too drunk" could be heavily varied - depending on the region, the Blood Alcohol Content (Or BAC) can vary by jurisdiction; some countries have a maximum BAC of 0.02%, and others a BAC of 0.08%. How these limits are determined involves some math math in theory, but in practice usually involves a breath sample via an approved screening device; an important point of the mathematical side, however, does indicate that, with time, the BAC counter goes lower.

The timing aspect of the BAC test result means that, ultimately, you could be charging people with a low enough (But too high legally) BAC amount for simply not waiting longer. "Oh, you didn't wait another 40 minutes before getting onto the road after waiting 80 minutes, so we're going to give you extended jail time" does feel a bit harsh - even if the math might be more complicated than that (See also, how body weight can affect the approximate mathematics in the above linked Wikipedia article). It's also a significantly small margin at times, and you could be punishing people who were spiked beyond the limit unexpectedly.

Whereas, whether or not someone is dead, is generally much easier to ascertain (Even if there are legal grey areas regarding the definition of being dead - if the body is found, medically they can check for brain and cardiovascular signs if brought to a hospital, where a determination can be made with more information.)- which makes the harder part determining if you drove into them, and then the hardest part proving that you were drunk at the time - where the above parts come into play.

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    – Community Bot
    Commented Aug 12, 2023 at 22:58
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    "How drunk is drunk?" leads to the observation that a person who is too drunk to start the car is, in fact, safer than one who is a little less drunk. Commented Aug 13, 2023 at 3:36
  • @SimonCrase: That's another point- if you're too drunk to drive a car, but you're, say, in the passenger seat, or the backseat, the only way I suspect you could get the drunk driving causing a death level charge is if the prosecution had evidence that you moved from your seat and took over the driving controls in a way that could cause that. Commented Aug 14, 2023 at 8:32
  • (For the community, I added a link to the Wikipedia page of legal death, where there are some considerations, but there are also the focus on the heart and brain signs for life. Unsure if there's more clarification that would be preferred.). Commented Aug 14, 2023 at 8:35
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Although some of the answers make a good comparison between retributive and preventative punishment, there is a more utilitarian purpose for this difference.

Simply put, the law exists so people do not need to seek whatever they want through illegal means.

If someone kills a man in a hypothetical world without law, the family of the man would seek revenge for his death. Then, if they kill the murderer, the murderer's family might seek revenge for his death. This would lead to a cycle of violence, which is what often happened in tribal societies.

Thus, one of the main purposes of the law is to be the arbiter between people and sole source of violence so they do not feel the need to take violence into their own hands.

The reason, thus, that a drunk driver who kills people is punished more is simply because the law needs to do that if it wishes to prevent many people from feeling their desire for revenge is not fulfilled and falling into lawlessness.

As for drunk driving by itself, it is only punished as a preventative measure.

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Consider these two scenarios:

  • Alice has never driven whilst drunk before, but this one time she's forgotten that she came to the dinner party by car and drinks some wine. Realising her mistake, she drives home exceedingly careful and slow, which raises the suspicion of a policeman who tests her and finds the alcohol level too high.
  • Bob routinely drives slightly drunk, but has been confident and lucky enough never to have been caught. This time though, his intoxication causes him to not notice a pedestrian who has tripped while crossing the road, and he runs her over.

If both were punished the same way, there wouldn't really be an incentive (besides altruism) to act like Alice, which clearly is the less inappropriate thing to do. She didn't act exactly right either, but she certainly acted in a way that posed less danger to society.

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  • Alice driving "exceedingly careful" while being dunk behind the wheel is subjective, plenty of accidents and deaths are caused this way
    – user35069
    Commented Aug 14, 2023 at 17:53
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We know alcohol impairs higher cognitive function, but the degree to which it does varies greatly from one person to the next (and depends heavily on other factors, such as what else you've eaten or drunk), and the ways in which it affects individuals also varies. Never mind that the same person could also be more or less drunk.

So we have a legal limit where the average person would be sufficiently impaired, such that they shouldn't be driving.

But this doesn't mean all those people are equally likely to drive too fast, run over traffic lights, swerve, not notice their surroundings, react too slowly, or do any of the other things a drunk person might do, that greatly increase the risk of someone dying.

So charging all drunk drivers with homicide-level offenses doesn't make much sense given the amount of variation there.

Also note that drunk driving is a preventative charge: drunk driving is not something that causes harm in and of itself, but we collectively agree that people shouldn't do it because of the risk it carries. Since it doesn't necessarily cause harm, it doesn't really make sense to punish it as severely as something which does cause harm. To prevent harm is one of the main reasons laws exist in the first place, so whether harm was or would've been caused is an important consideration.


Drunk driving can be compared to some degree to driving while medicated. Medicine affects different people differently under different circumstances, so it wouldn't really make sense to say driving after taking a single aspirin is equivalent to driving after taking strong prescription pain pills, or that taking something which has no noticeable effect on you is bad because it knocks someone else out.

The difference is that alcohol has a more consistent effect, it's a more common known source of accidents, and it's easier to test for.

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Harming someone, or being drunker, offers different facts that violate more laws.

It's simple: if you do more stuff, you can violate more laws at the same time. And some laws are just written in such a way, that violating them is punished harder. So:

Violating some laws gets you punished harder than others.

And with drunk driving, often laws are written like escalation steps. Let me use the law of as an example:

  • If you are a new driver, you may not have any alcohol. 0.0 is your limit. See §24c Straßenverkehrsgesetz (Law on Road Traffic)
  • Driving with some blood alcohol is legal, as long as you are below the limit and drive well enough. Without any signs of alcohol-related errors, you can have less than 0.5 permille.
  • Driving under the influence of alcohol in a manner that is noticeable for the intoxication, you gain a hefty fine when caught. That is called Trunkenheit I'm Straßenverkehr (~Driving under the Influence of Alcohol) under §316 StGB (Penal Code) and can trigger as early as 0.3 permille alcohol according to the highest German court.
  • Getting caught while driving with more than 0.5 permille gives you a hefty fine and automatic loss of the driver's license for 1 to 3 months, depending on how often you do it. This is regulated in §24a StVG, and is called the "0.5 permille limit"
  • Driving with 1.1 permille or more means you are also in for a felony: very hefty fines are leveled, you can go to jail for up to 5 years, your driver's license is on the line for at least 6 months up to 5 years or permanent revocation. This falls under §315c StGB, Endangering of Road Traffic. At this point, the BGH reasoned, you are absolutely incapable to drive a vehicle safely.
  • Should you be caught with 1.6 permille or more, makes the test to determine if you ever can regain your driver's license mandatory. At this point, it is reasonable to suspect that the person in question is a chronic drunkard.

All of those are just driving drunk, where no intent is needed. That's all separate from what comes when an accident happens. The moment your drunk driving harms anyone (or anything), it goes from just punishing your state of drunkenness to making your drunkenness a factor in a totally different crime, the one that revolves around doing the harm. Being intoxicated enough opens you, before anything else, to the reckless versions of harming or killing crimes.

  • Killing someone by driving them over under alcoholic influence is at least Fahrlässige Tötung under §222 StGB (Reckless Killing)
  • Harming someone but not killing them while driving in such a manner is just Fahrlässige Körperverletung under §229 StGB (reckless harming of someone)
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  • I don't think it's all that reasonable to suppose that someone who drank too much on one occasion (and then made the poor decision to drive) is a "chronic drunkard". Never mind that a single 250ml cup of liquor can get you past the 1.6 parts-per-thousand limit (which is 5 shots, but still).
    – NotThatGuy
    Commented Aug 16, 2023 at 10:42
  • @NotThatGuy someone that is caught driving with 1.6 permille must take a test, which will determine if is - the suspicion is that he could be one, because with 1.6 you should feel massively impaired, but someone with an addiction to alcohol would function much better at such level.
    – Trish
    Commented Aug 16, 2023 at 12:12
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You can break the penalty of killing someone while driving drunk into 2 pieces. The smallest part is the actual drunk driving, and the largest portion is causing a death.

Thus a manslaughter charge may be 10 years in prison, but a drink driving resulting in death charge would be 12 years; 2 years DWI, 10 years manslaughter (or at least the theory goes).

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    Legal citations? Commented Aug 14, 2023 at 4:42
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    Fun hypothesis, but AFAIK this is not how things work.
    – feetwet
    Commented Aug 14, 2023 at 14:45
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Suppose that Driver #1 and Driver #2 both direct their cars to follow the same seemingly-careless trajectory with the same velocity, but a pedestrian happens to be in that path when driver #1 does it. Driver #2 would be able to argue that if a pedestrian had been present he would have piloted his vehicle more carefully, so as to avoid a collision, and it would be very difficult for the state to prove beyond a reasonable doubt how driver #2 would have behaved in such circumstances. With driver #1, however, there would be no need to speculate what the vehicle's trajectory would have been if a pedestrian had been present, since one could simply look at what the actual trajectory was, when a pedestrian was present.

Having a separate charge for operating a vehicle in an "apparently reckless" fashion, with a proviso that anyone who contemplates operating in vehicle that might be interpreted as reckless would have a duty to preserve evidence of their regard for safety would alleviate this problem. Someone who operates a vehicle in an apparently reckless fashion, without being able to present any evidence as to why their conduct wasn't actually reckless, would at beyond a reasonable doubt have--at minimum--failed in their duty to prove that they were making a bona fide effort to act safely.

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