Capable of committing a crime

Recently, the Minnesota Supreme Court upheld a drunken driving conviction of a man (named Fleck) who was drunk, asleep in his car, in his apartment parking lot, with the car keys on the car's console. The conviction and affirmation were based on Minnesota law that makes it illegal to be in "physical control" of the vehicle... meaning that the drunken person COULD take control of the vehicle.

Chief Justice Alan Page wrote that "Fleck, having been found intoxicated, alone, and sleeping behind the wheel of his own vehicle with the keys in the vehicle's console, was in a position to exercise dominion or control over the vehicle and that he could, without too much difficulty, make the vehicle a source of danger"

We might all agree that drunken drivers are a significant danger, and that they must be stopped and punished severely enough to discourage them from doing it again. I don't have a problem with laws that allow police to stop someone driving erratically and then testing for drunkenness. I do have a problem with such laws that have been expanded and harshened steadily over the years until we have now reached a point of total absurdity.

Guilty for what one MIGHT do? Guilty for what one is CAPABLE of doing? Guilty of "driving while under the influence", but NOT driving? With the car not running? With the driver not conscious? Stop and think about the implications of such law, if applied in other areas.

Could one be convicted of ROBBERY for looking at a store, because he COULD decide to rob it?

Could a man be convicted of RAPE because he is "armed" and physically CAPABLE of doing so?

Can someone with matches in their possession be convicted of ARSON because they COULD have started a fire?

Could someone be convicted of TERRORISM because their garage contains substances that are incendiary and COULD be used to construct an explosive device?

Of course not, or at least so we thought, because one can only be guilty of DOING SOMETHING, not of being CAPABLE OF DOING IT. Even if one is INTENT on doing something wrong, but doesn't actually do it, no crime has been committed... assuming rational judgment.

Under the current DUI law, no harm need be done, no actual danger need be present, and not even intent need be present. Only the CAPABILITY to possibly cause harm is required.

I'm written about the stupidity and destructiveness of "victimless crimes"... crimes when no other person is harmed. I've written about hate crimes as "thought crimes", where extra punishment is meted out because of the reasons behind the crime, but these DUI laws, as they're being interpreted, are CAPABILITY CRIMES.

DUI is not a trivial matter, but it is involved in only about 30% of driving fatalities. Why is such intensity focused on DUI? We've all seen drivers involved in personal distractions that make them a menace to other drivers... eating and drinking while driving, chatting or texting on cellphones. I recall watching one woman curl her eyelashes while driving in rush-hour traffic. The greatest impairment to accident-free driving is, in my opinion, the presence of other people in the car distracting the driver. Probably the most distracting are children. Do we have special penalties for accidents when the driver is impaired in other ways?

Generally, we don't have such special crimes, because drivers encounter many distractions that impair safe driving, not the least of which is the condition of the streets and roads, and the absurd number of signs we're required to notice and respond to instantly.

There are a great many causes of accidents and fatalities, but our laws treat substance impairment very differently, and far more harshly, than all others. There are side issues that
fog our reason when it comes to DUI. Special laws allow police to impound a car when DUI is suspected, and often those impounds become permanent takings... to the extent that police argue about which department will get possession of the car.

Careless, erratic, or even dangerous driving seldom results in arrest. If it does happen to result in a police stop and the driver is NOT under the influence, the matter is likely to end with a warning, even though the CAPABILITY (or even likelihood) of harm is clearly present.

If we allow the current Minnesota DUI interpretation to stand, it WILL serve as precedent for other similar applications of law. A precedent that allows the mere CAPABILITY to commit an offense to be treated as the offense is to turn the law completely upside down.

It seems especially ironic that the Chief Justice of the Minnesota Supreme Court, Alan Page, used to make his living as a Viking pro football player, where his job was to inflict harm on others, which he did well and famously. Yeah, well, games are different, aren't they... but consider football where penalties are called when a player MIGHT HAVE done something illegal, or because he was CAPABLE of fouling another. The case the Supreme Court ruled on was so patently ridiculous that the football parallel would be penalizing a player on the sidelines because he COULD get into the game and THEN cause harm.