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September 6, 2018

Some data to support a proposed "Driving in the Rain" criminal law in Oliwood

This headline from a USA Today article says it all: "Surprise: Rain is the deadliest weather driving hazard."  This press article about the driving during rainy conditions is hardly a surprise given well-known data on the extent of the rain-driving problem.  As explained in this government website drawing on a decade of crash data (with emphasis added):

On average, nearly 6,000 people are killed and over 445,000 people are injured in weather-related crashes each year.  The vast majority of most weather-related crashes happen on wet pavement and during rainfall: 73% on wet pavement and 46% during rainfall. A much smaller percentage of weather-related crashes occur during winter conditions: 17% during snow or sleet, 13% occur on icy pavement and 14% of weather-related crashes take place on snowy or slushy pavement. Only 3% happen in the presence of fog.

In other words, nearly 1000 people in the US are injured every single day thanks to folks crashing while driving in the rain.  And, as this government paper states not only that "wet weather is far more dangerous than winter weather," but also that "weather-related crashes cause between 94 million and 272 million hours of delay each year [with the] annual cost of weather-related crashes estimated to be between $22 billion and $51 billion."

Of course, any proposed driving-in-the-rain criminal law will not prevent all or even most weather-related crashes (just like existing drunk-driving and texting-while-driving criminal laws do not prevent all other dangerous-driving crashes).  But if a proposed new criminal law can reduce the number of weather-related crashes by even just 10%, that could save dozens of innocent lives, reduce by hundreds the number of Oliwood citizens injured on the roadways, and save millions of dollars each and every year.

The simple proposed draft text for a "Driving in the Rain" criminal liability statute appears below, and it is important to note that it does not call for punishing people for driving in the rain, but really only for crashing in the rain.  I look forward to hearing whether and why Oliwood legislators support or oppose this use of the criminal law in our great state.

PROPOSED OPC Section 55.55: Criminal Damaging While Driving in the Rain:  No person shall cause any physical harm to any other person or to the property of another while driving in the rain.  Punishment for a violation of this section shall depend upon the amount of harm caused and other relevant factors in the discretion of the sentencing judge.

September 6, 2018 in Course materials and schedule | Permalink


This proposed legislation could certainly serve the purpose of deterring crashing in the rain, which theoretically can save lives, but it shifts the paradigm a bit of how the criminal justice system should be used. Traffic crimes are generally a strict liability for the perpetrator based on the voluntary action such as speeding, ignoring traffic signs, reckless/distracted driving, etc.; however, this legislation imposes a strict liability for crashing in the rain based on involuntary action. Making the conscious decision to drive when it is raining out, a known risk beyond driving in clear weather, would absolutely fill both the thought and act requirements needed to even crash in the rain, but this conscious decision is the same in the lawful behavior of driving in the rain and yet there is still punishment. Certainly the act being punished is crashing, but involuntary crashes do occur even when both parties are driving responsibly. To put this in an analogy, being under the influence, for example, and choosing to drive is never legal, but having rainy weather and choosing to drive is always legal. Of course we are only interested in CRASHING in the rain, but we are justifying policing and deterring otherwise lawful thoughts and actions in order to punish individuals who may have acted in a reasonably careful manner. It must be stated for this argument that even if this legislation punishes only those who crash, people will still drive in the rain and people who exhibit proper care will still get in accidents (and so will those that do not exhibit proper care). Involuntary accidents happen, regardless of weather, through such means as hidden road hazards, manufacturing issues, sudden part failures even with reasonable maintenance, etc. and an imposing a crime on someone simply because it happened in the rain is unjustified.

Retributively, this legislation does not punish those who are not crashing nor does it punish those that crash more than needed, but can we say that those that crash are ALWAYS guilty enough to be punished? I argue no, they cannot always be guilty to be in the situation they were in and there are better means to punish those that truly acted in a guilty manner. A better means to punish those who took too great a risk in driving in the rain would be to somehow prove that they specifically posed a greater risk to other drivers in the rain and that they reasonably should have known not to go out driving. This would be very narrow but fits with the notion of not punishing the innocent. Basically we do not want to punish people drove correctly in the rain and got in an accident due to something else, but we do want to punish those that did not drive carefully.

From a utilitarian perspective this legislation deters people from driving reasonably in the rain altogether, but it does save lives and can be weighed on a how much good vs how much evil scale. Certainly saving lives is a societal good that can outweigh the societal harm of inconveniencing and arguably wrongfully punishing innocent people and this legislation would achieve that. Do we care if people have to pay an extra fine? It's not really causing them much harm and it's not stopping them from being able to drive, but is it the way we want our society to look in the future and where else can we start applying these principles to punish lawful behavior that goes awry (crashes) and save lives?

I concede that my utilitarian argument is not as strong as my retributive one, but you need both sides to agree in order to have a robust case for this. I see a similar problem with ORC ยง4511.202 concerning failure to control. It makes sense on the surface to outlaw not being in control of a vehicle, but even when accidents occur this can have some severe impacts on people who drive for a living. I would make a case against this, through anecdotal evidence, that a school bus driver can lose their job and not find work again since they have the "failure to control" on their record, even if it was due to poor road maintenance and all other charges were waived (since they still "failed to control). Regardless of this one case, both the OH statute and proposed Oliwood statute always punish actions that are not always voluntary or even deserving of punishment.

Posted by: Ari Pompas | Sep 7, 2018 11:58:50 AM

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