OK, that’s a provocative headline. But before you throw stones, allow me to ask two questions about Premier Redford’s new drinking and driving rules.
1. Will the law mean more or less criminal convictions for those blowing just over .08?
Public choice theory says that if faced with a choice between doing something in the public interest or doing something in their self interest, public officials do not always act in the public interest. So for example, given a choice to implement something where one way requires policies that are difficult to implement and the other is simple and efficient, public officials will often choose the former because it allows them to build a bigger bureaucracy. I am not being critical here, just noting that sometimes the incentives faced by public officials (bureaucrats and politicians) cause them to promote their own interest over the public interest.
So now let’s look at the new law from the perspective of public officials acting in their own self-interest.
Janet the policewoman pulls over George. Janet suspects George has been drinking and asks him to blow. George blows .081, which is .001 over the impaired legal limit.
As we all know, the police have some discretion at this point. Under the new law, as I understand it, Janet has a choice. She can:
1. charge George with impaired driving; or
2. impose “administrative penalties” as if George had blown between .05 and .08.
I think we would all agree that the police should be given some discretion, but the key point I want to make here is that the incentives from the point of view of the police/government/politician are not the same for these two options.
If Janet charges George, it is likely that George will fight the conviction. Fighting the conviction will entail a criminal trial. The key point is that this will cost the system money in terms of lawyers and time.
If instead Janet imposes the new administrative penalties, George is probably unlikely to challenge them (he will be relieved to have avoided the impaired driving charge). Therefore imposing administrative penalties will make the system money or at least not cost as much as a likely criminal trial.
And so from a systemic point of view, there is now a systemic incentive to impose administrative penalties rather than criminal convictions for individuals who blow over .08. This is particularly true when, as is true today, governments are retrenching.
Public choice theory tells us that when there is a systemic incentive that runs against the public interest (and I take the public interest here to be that we should charge people who blow over .08 with a criminal charge), we should not be surprised when the system follows the systemic incentive.
Which means that what we may well have done is, on a systemic basis, reduce the number of people who are driving drunk and get charged with impaired driving. Janet can increase her department’s (or the government’s) revenues by levying administrative penalties instead of charging George with impaired driving.
The result will be more revenue for government… which is why I have been calling this the “impaired driving tax”.
In short, the incentives of the law from Janet’s point of view will bias her towards administrative penalties and away from criminal convictions for those blowing just over .08.
2. The second question returns to George and asks: does it matter if George is relatively poor or relatively well off?
It turns out that it just might. If George is very poor, then the prospect of paying a stiff administrative penalty may be just as much of a deterrent as facing a criminal conviction.
But if George is quite well off, paying even a stiff fine would be much less onerous than a criminal conviction. In addition, it is probably much easier for rich George to do without his car and license for three days than poor George.
In short, the impact of the law from Geroge’s point of view will be different based on his relative economic standing.
And so I return to my headline and ask the question: Will more rich people drink and drive?
Public choice theory would tell us that they will. Let’s hope (against much evidence) that the theory is wrong.
