A per se law is makes something illegal, regardless of whether it is dangerous, or not. Oftentimes, instead of criminalizing an act, it criminalizes a status, punishing people who have that status even if it has caused no harm and even if they did not intend to have that status.
Laws that outlaw operating under the influence (OUI) are per se laws because they punish anyone with a particular status – they were driving with a blood alcohol content (BAC) at or above 0.08% – regardless of whether they were too impaired to drive safely.
Unfortunately, the problem with per se laws is that they are too simple, actively ignoring complications that should be accounted for in order to prevent gross injustice.
When it comes to OUI laws, one of those complications is that alcohol affects women more than men.
On a medical and physiological level, biological sex makes a huge difference. One way sex plays a role is a person’s ability to consume alcohol without losing their ability to function: Women tend to get impaired by the effects of alcohol far more quickly than men do.
In fact, this difference has been known for nearly as long as OUI laws have been strictly enforced. As early as 1964, one study had found that men were two times as likely to be involved in a crash when they had a BAC of 0.08%, while women were nine times as likely. More recent studies have confirmed that motor skills deteriorate more quickly when women drink than when men do.
If women truly get impaired by alcohol more quickly than men do, then there are two serious implications for OUI laws.
First, men are being held to a higher standard on the roads than women are, and face a substantially higher chance of being arrested for OUI, even if they are still able to drive safely. If both men and women are considered to presumptively be “under the influence” when they have BACs at or above 0.08%, then men are driving illegally when they are less impaired than women are.
Second, it means that women who are too dangerously impaired to drive are not breaking the law.
If OUI laws are supposed to be keeping our roads safe, then these gender implications suggest that they are not doing it: Men suffer the results of numerous “false positives” that put them in serious legal trouble, while individual women benefit from “false negatives” that put other drivers on the road at risk of their impaired driving.
Per se laws make everything simple. However, they often gloss over important distinctions and nuances, creating injustice while still failing to adequately deal with the problem the law was designed to solve. OUI laws are a perfect example.
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