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September 7, 2013

Working draft of bill for new ORC provision to criminalize "Damaging while driving in rain"

In order to facilitate the consideration by students/legislators concerning a new bill I have proposed in the hope of reducing the harms that too often result from driving in the rain, I have formally drafted some bill language:
PROPOSED ORC Section 2999.99: Criminal Damaging While Driving in the Rain
(A) No person shall cause any physical harm to any other person or to the property of another person while driving in the rain.
(B) Whoever violates this section is guilty of criminal damaging while driving in the rain, a misdemeanor of the second degree.  If a violation harms property valued in excess of $5000, this offense is a misdemeanor of the first degree.  If a violation harms a person or property valued in excess of $50,000, this offense is a felony of the third degree.  If a violation causes serious harm to multiple persons or the death of any person, this offense is a felony of the second degree.

This 2008 report from Science Daily, headlined "Bad Weather: Bad Drivers" highlights the impetus and importance of this kind of proposed legislation.  Here excerpts (with key points highlighted in bold):

Researchers and statisticians found that 24% of all crashes occur during adverse weather conditions, including ice, snow, and rain.  The research showed that most drivers do not account for adverse conditions created by rainy weather.  They suggest slowing down and increasing the distance between traveling cars as a way to decrease the number of accidents in bad weather.

Each year, nearly 7,400 people are killed and over 670,000 are injured in crashes.  But not all wrecks are because of driver error.....  Rainy weather can wreak havoc on highways. When a big storm rolls in, drivers tend to either slow down too much or not enough. Drivers need to be wary of driving in any change in the weather.  A new study by transportation engineers reveals that nearly one-quarter of all crashes occur in bad weather conditions.  Most happen on wet pavement....

Unlike snow and ice covered roads that scare drivers into staying home or driving more carefully.  Many drivers don't consider rain as 'bad' weather, so more cars end up on wet roads, and drivers don't slow down enough to avoid serious accidents.

For more research on this front (which further supports the need to do whatever is necessary to try to make our roads safer during inclement whether), check out this related story headlined "Rain Is More Lethal For Drivers After A Long Dry Spell."  Here is a key fact  based on a review of many years of roadway accident data:  "For any given day in the state, on average, each centimeter of precipitation increases the risk of fatal crashes by about 1 percent, [and] for nonfatal crashes, the increased risk is 11 percent."

September 7, 2013 in Class reflections, Course materials and schedule | Permalink


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I'm still not sure that the criminal code is the appropriate policy vehicle to achieve the goal here. "Innocent" people will be punished here. A party is at fault in every vehicular accident, but this statute would not differentiate between drivers who were truly behaving dangerously or recklessly (no headlights, excessive speed, etc.) and drivers who are held at fault because of an accident that happened due to the inherent chaos of the road.

The behavior that this statute aims to curb has its own punishment: accidents themselves. People don't want to get in accidents because they can damage their vehicles and cause injury and death to themselves or their passengers. People drive more cautiously in snow and ice because they recognize that it makes the road more dangerous. Erroneously, the public does not view rain and wet roads as a similar hazard. The appropriate way to address this problem is through public education: PSAs, driver's education classes. I would be more amenable to something like the seat belt laws we now have - make dangerous driving in the rain a more serious traffic offense and launch a public education campaign on the dangers of driving in the rain to coincide with the new laws.

Posted by: Ben Wallace | Sep 8, 2013 12:40:23 PM

I have to agree with Ben- a new ORC provision to criminalize "damaging while driving in rain" is not the way to handle this issue. Even if this criminal provision does not pass, drivers who cause accidents in the rain will still be punished in one way or another. If they are the driver at fault, they would most likely receive a traffic ticket and have to pay for damages.

We should also take into consideration the advice that the researchers give us. The researchers in the 2008 Science Daily report say that drivers need to slow down and increase the space in-between cars. If we focus on spending money to educate drivers rather than punish those who made the mistake of driving in the rain, we would be much better off.

Would this provision raise awareness that driving in the rain can cause accidents and probably shouldn't be done? Maybe. But I believe the same results, or possibly even better results, could be reached with a PSA campaign and/or increased funding to drivers education courses.

Posted by: Morgan Cheek | Sep 8, 2013 3:37:48 PM

Echoing the sentiments of Ben and Morgan, I too find the new ORC provision regarding driving in the rain to be problematic. While its goal is noble, its strategy is questionable.

As we mentioned briefly in class, the enforcement of "Criminal Damaging While Driving In The Rain" is troubling. Surely, driving in the rain is dangerous. However, the accident also could have been caused by wildlife, a careless biker on the shoulder of the road, or another automobile malfunction. If the Oliwood legislature makes driving in the rain punishable as a strict liability crime, the assembly is essentially closing the door on any other factors playing a legitimate role in accidents.

A fairer approach would be to depart from the strict liability classification of the crime, and to require the state to prove that it was exclusively the rain that caused the individual accident, and that any other factors were simply not at play. Again, this approach suffers from circumstances that are simply too difficult to prove in the absence of being present at every single rainy accident, or installing video cameras at every Oliwood intersection, a pricy endeavor. To Ben's point, most juries would likely find that the parties involved have suffered enough (personal bodily harms, totaled or severely damaged vehicles, rising insurance deductibles, damage costs of the other cars, etc). After thinking through this second course of action, I remain convinced that any type of criminalization for such an act is far too difficult to enforce. Launching an awareness campaign very specific to driving in the rain (and the special dangers that condition poses) is likely the best way to get the attention of the public and work to eliminate the problem.

Posted by: Kelly Flanigan | Sep 8, 2013 9:40:54 PM

If one is criminally liable only because the damage is done on a rainy day regardless of whether he is negligent or carefully enough, it may sound like we are condemning driving on a rainy day. Maybe legislators want to discourage people to drive on a rainy day for safety, but what if it is sunny when I set out from home but begin to rain afterwards? I will feel terribly unlucky and feel very nervous driving in the rain. Will the nervousness suffered by drivers leads to more accidents? I don't know, but at least it is possible.
In my opinion, strict criminal liability, which does not require a culpable mental state, can only be applied in some risky behavior which highly threaten public health and safety, such as carrying gun, growing marijuana. Besides, these actions bring little good. Is driving on rainy day a behavior as dangerous as carrying gun and growing marijuana? Although there are some statistics, I don’t think they are of the same level. Anyway, driving on a rainy day enable us to do many useful things. Therefore, I believe it is not appropriate to apply strict criminal liability to driving on rainy day.

Posted by: Di Zeng | Sep 8, 2013 11:25:30 PM

I have to agree with what both Ben and Morgan have already stated. I do not believe that establishing criminal liability will actually solve the problem. People involved in accidents are already punished through paying for damage, higher insurance rates, and possibly civil litigation. If the aim of this statute is really protect citizens, maybe legislation should be enacted reducing speed limits while it is raining. Would this not possibly achieve the same goal of protecting people?

Posted by: Jason Groh | Sep 9, 2013 12:48:05 PM

Also, people really need to turn their lights on when it is raining. It drives me crazy when other drivers don't do it.

Posted by: Ben Wallace | Sep 9, 2013 1:20:18 PM

"The bureaucracy is expanding to meet the needs of the expanding bureaucracy." If I felt that other anti American laws should be enforced, like the war on drugs, then I would feel compelled to support a raining while driving law--at least so that I would have a coherent world view. It sounds like I might be alone in class, outside of Berman. Liberty and equity are the most important values to actual patriots. We should never curb freedom just to gain a little security or sense of security. To discuss a "utilitarian equation," freedom and choice are what should be maximized in the objective function for someone honestly advancing the public interest. (But that is if we want to be honest and talk like the technocrats we are studying to become) I really question the intellectual honesty of anyone who opposes Berman's proposed raining law while supporting giving time to someone accused of selling ecstasy like the in class hypothetical situation. Everyone who would have given that non violent offender time or any sort of punishment should consider the logic of the following. If you look at the link I included where there is a basic microeconomic curve by quantity and price, a producer's incentives to produce increase as price increases. Making drugs illegal, but leaving a market makes it so that price increases. When has the war on drugs ever eradicated the market? It hasn't. This failed war directly increases the incentives to continue to supply the market. So huh, the war on drugs logically increases incentives to sell drugs by increasing price. Thus the war on drugs directly subverts the policy interest it is assumed to further. Thank god generations of legal scholars have continued to support the failure of their laws and assert more regulation and control is the solution. Wouldn't it be great if people when they were wrong could just admit they were wrong? Unfortunately, it seems a lot of the people in power for the past few generations instead of admitting the faults of their ideas, chose to create some elaborate excuse about how they were right but wrong just about some small thing and just adding more poppycock will prove them right. Furthermore, the Reagan administration and the CIA smuggled cocaine into this country during the Contra Affair, so it should be obvious that the law only applies if you are poor and don't have good government connections. The whole war on drugs is a joke, and functions only to create a prison state. Fortunately, we are now privatizing prisons, good bye criminal laws that advance any actual public interest!!! I honestly am very uncomfortable hearing people laugh in class about them thinking they have the right to incarcerate their fellow man just because they supposedly have a better idea of what the public interest is and how to advance it than their fellow man. Sure, microeconomic assumptions breakdown when we look at a complex global economy and Walrasian systems, but we can go further into understanding incentives to see that the war on drugs and any other kind of philosophy that subverts individual freedom to somehow increase aggregate utility is generally a bunch of poppycock. Attorneys should be working to preserve civilization and working to protect the rights of their clients, not senselessly assuming a technocratic position to enforce their own beliefs and values on their fellow person. The point of this country was voluntary self interest and preserving the "inalienable rights" of each person, not having the fortunate bourgeois impose their will on the less fortunate. How many of our peers that are not fortunate enough to be in law school right now are going to go to jail for the worldview you arbitrarily think is right, perhaps because you think that is what you should think????

Posted by: Fatkat Jack | Sep 9, 2013 7:04:19 PM

Here is the link I referenced:


Here is a good video about how the founding fathers smoked and grew pot and would be horrified by the war on drugs:


Posted by: Fatkat Jack | Sep 9, 2013 7:13:47 PM

Paragraphs are your friend. But then again, I'm just a technocrat.

Posted by: Ben Wallace | Sep 9, 2013 8:36:06 PM

"We should never curb freedom just to gain a little security or sense of security."

Isn't this the entire point of government? We give up some of our individual freedoms because it is in the best interest of society. Obviously a line must be drawn somewhere, but it is equally clear that we are nowhere near knowing where the line should be drawn.

"The point of this country was voluntary self interest and preserving the "inalienable rights" of each person, not having the fortunate bourgeois impose their will on the less fortunate."

If the founding fathers were truly considered with preserving the "inalienable rights" of each person, wouldn't they have abolished slavery, granted women suffrage, and given non land owning men the right to vote? Instead they designed a regime where the fortunate imposed their will on the less fortunate. The United States isn't in the position it is in today because of a piece of paper a bunch of dead white guys wrote on over 200 years ago. It has taken the sacrifice of countless freedom and lives and the creation of a seemingly countless number of laws to turn this country from an agrarian aristocracy into a cultural, economic, and militaristic titan.

I'm not exactly sure what this has to do with driving in the rain, but there's definitely something there. The statistical evidence shows that rain increases the already prevalent dangers that come with driving, and as a good, forward looking society we should be concerned with reducing how the poor decisions of one can negatively affect everyone around them. However, I am unsure if strict liability, public education, or any other theory that could be suggested is the best way to counter the dangers that come with driving in the rain.

The core issue with strict liability is excellently addressed in Ben's first post: "Innocent" people will be punished here. A party is at fault in every vehicular accident, but this statute would not differentiate between drivers who were truly behaving dangerously or recklessly (no headlights, excessive speed, etc.) and drivers who are held at fault because of an accident that happened due to the inherent chaos of the road.

But while strict liability has its flaws, I find the idea of using some sort of public education system to solve this issue comparatively troubling. How many people do you know who have decided not to drive drunk, turned down drugs, practiced safe sex, or done/not done whatever else because of something they saw in a commercial?

Holes can (And will) be poked through any solution any problem, for it is always easier to find problems than solutions. I am not going to pretend I have the perfect solution to the dangers of driving in the rain, and I am not going to pretend I know where I stand on using strict liability as a potential solution. But what I do know is that this serious issue where lives are at stake. Something must be done, and the people who ultimately make this decision must look into their souls and do what they believe is truly in the best interest of all.

Posted by: Max Hunter | Sep 11, 2013 1:06:21 AM


I share you skepticism with public education campaigns, although they probably do have some marginal effect. The reason I think it might work here is that people already seem to appreciate that in certain weather conditions the road becomes more dangerous. It isn't something that is outside of people's consciousness, so maybe the public just needs a little push (and not a shove).

Posted by: Ben Wallace | Sep 11, 2013 8:50:15 AM

There appears to be a common retributive factor underlying many of the arguments put forth against strict liability for causing an accident while driving in the rain. We feel that criminally punishing someone for causing an accident while driving in the rain is not proportionate to the offense committed. The strict liability statute does not differentiate between accidents where the driver was solely at fault and those where other, less-controllable factors came into play.

Continuing with the retributive line of thinking, there is also the issue of how severe the rain is. If strict liability punishments were imposed, would it be fair to administer the same punishments to someone who caused an accident while it was sprinkling and to someone who caused an accident during a raging thunderstorm? The proposed statute may make roads marginally safer, but it also raises even more difficult questions.

Posted by: Alaina Patzke | Sep 11, 2013 1:22:33 PM

While my intuition leads me to agree with Ben, to play devil's advocate, I argue that education of the populace may not be nearly as effective as you may hope. Drug use is an example where constant education from a young age has not eliminated or perhaps even reduced drug use. I doubt education would effectively modify people's behavior. And while the punishment of an accident happening may seem like enough, I do not think it captures the full private and public costs imposed by a reckless driver. That said I do not believe this statute has proper conditions to the rule, such as the requirement of negligence on behalf of the driver. I am not sure if that would defeat the deterrent effect of the proposed statute. I look forward to the class discussion.

Posted by: Josh Hardy | Sep 14, 2016 10:49:12 AM

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