Lon Fuller, a legal philosopher and law professor, was known for, among other things, his careful analyses of legal fictions, which are basically assumptions in the law that something false is true. Fuller once identified the following three legal fictions surrounding the crime of drunk driving: (1) the assumption about risk that allows attribution of blameworthiness to drunk drivers; (2) use of a fixed BAC to prove drunk driving; and (3) the potential fiction that alcohol use is the cause of death or injuries in alcohol-related car accidents. As a Massachusetts drunk driving attorney, Fuller's insights are interesting to consider, as they undermine the logical basis of drunk driving legislation and the justice of OUI prosecutions and convictions. It is also important to consider these legal fictions from a policy perspective, as government resources are wasted on prosecution and punishment when drunk-driving laws are based on fallacy.
First, Fuller explored the fiction of risk. Under this idea, a drunk driver is culpable because he engaged in very risky behavior and violated his duty of care to other people. Fuller notes that the concept of "duty" is so indefinite that we don't have any way to test the reality of a "duty" besides looking to courts to define its existence. In that way, because there is no way to test the reality of a duty, a duty in itself cannot be a fiction. However, according to Fuller, legal relations become fictions when they are linked to extra-legal inaccuracies. In the context of drunk driving, the risk is linked to group statistics about drunk driving in the aggregate as opposed to any information relative to the risk created by the individual OUI defendant. Using a collective group to assess the risk created by an individual is a fallacy and is at odds with criminal theories of culpability. This fiction relieves the government from proving something that might not exist at all: an ignored and substantial risk.
Next, Fuller addressed the fiction of per se BAC. Statutes that define operating under the influence in BAC terms are conclusive presumptions, which Fuller said are necessarily fictions. Certainty is attached to something that does not deserve certainty, and the government evades having to prove that a person was actually drunk. Per se BACs also assume another thing that is false: that people are able to self-monitor their blood alcohol concentration. While per se BACs are constitutional, that does not cure the fact that they are not quite logical.
Finally, Fuller addressed the product of the first two fictions, the fictitious imputation of legal cause. If the first two fictions are accepted, that a person with a certain BAC is drunk and that the person's drunk driving created a serious risk, then deaths or injuries in drunk-driving accidents can be viewed as foreseeable. Using this fiction, two persons involved in accidents, one with a BAC under the limit and one with a BAC over the limit, can be treated very differently despite the fact that they exhibited identical driving behavior.
Use of these fictions in the context of OUI / DUI / DWI, largely for the sake of efficiency, does not serve anyone. It prevents the government from addressing the real social problem. It also results in individual OUI defendants being treated as one-dimensional and forces them to share responsibility with a collective group.