The following brief was submitted on behalf of a young military widow who had been denied death benefits following her husband's fatal car crash on grounds that the husband's drinking-related misconduct in driving his vehicle led to his death.  I have changed all names and excised portions of the text that might too readily lead to the identification of principals.  Dates have been "blurred" for the same reason.


A Case of Vanishing Probability &
Biased Commonsense Understandings

Ron Roizen, Ph.D.
Consultant Sociologist

I.  The Structure of this Critique

As I read it, the Board's 199X decision relies on two fundamental standards of "willful misconduct":  (1) the idea that your husband's death was a "probable consequence" of his pre-crash conduct and (2) that your husband's pre-crash conduct involved "conscious wrongdoing."

The two standards may be related to each other, but they also involve quite separate issues of fact and interpretation.  Therefore, I consider the evidence and arguments relating to both, below (see sections numbered III & IV). Before doing so, however, some preliminary matters require discussion (section II).  I offer my conclusions (section V) and have added a brief comment about my professional competence.   Photocopies of two articles -- Beitel et al. (1975) and Roizen (1987) -- are attached.  Finally, my c.v. is also attached.

II. Clearing Away Underbrush

The Board's 199X decision was based on the contention that your husband engaged in a combination of proscribed and/or very risky behaviors in the hours and moments before his death.  The key language in the Board's 199X decision holds that these behaviors were sufficiently "wanton and reckless," in fact, to make the fatal outcome your husband suffered a "probable consequence" of his pre-crash conduct (see 199X decision, pages 6 & 12, emphasis added).

Black's Law Dictionary (BLD)--relevant pages of which the Board kindly provided to you--sets a high standard for "wanton and reckless misconduct." BLD defines "wanton and reckless misconduct" as occurring "when a person, with no intent to cause harm, performs an act so unreasonable and dangerous that he knows or should know, that it is highly probable that harm will result" (page 1149, emphasis added).

I want to turn in a moment to making a rough calculation of the actual probability of dying in a traffic crash that your husband faced on the night of XX August 198X.  Before doing so, however, it is necessary to clear away three important items of what might be termed conceptual or philosophical underbrush:

Guarding against post facto reasoning: First, it is crucially important to understand that it is illogical and illegitimate to use the fact of your husband's actual death as evidence relating to the probability his pre-crash conduct harbored a significant probability of immanent death.  This may seem a very odd logical restriction to impose from the point of view our commonsense understanding.  After all, the fact he died in effect prove that he was doing things that led to his death?

The logician's answer, however, is no.  Logicians call this sort of reasoning the "post hoc, ergo propter hoc fallacy" or the logical error of "affirming the consequent."  The basic problem with such reasoning lies in the fact that once we know that your husband died, we are at liberty to invoke any factor we may like in his previous conduct to explain his death's occurrence.  Post hoc assertions allow for no way to be empirically disproved, and therefore, and despite appearances, they have no truly empirical content.  In a sense, this logical rule expresses the academic equivalent of the everyday maxim that "hindsight is always 20/20."

Hence, in order for us to make a rational and logically defensible assessment of the likelihood of death as a consequence of your husband's conduct in the hours and moments before his crash, we must in effect (a) put ourselves in his circumstances before the crash, (b) eliminate any hint of foreknowledge of the crash, and (c) reasonably evaluate the death-risks associated with the things he was doing or omitting to do.

Guarding against metaphoric use of terms:  It is also important to understand that terms like "probable" or "very probable" (as these appear in the 199X decision or the law dictionary) are intended in their literal meaning and not in some other metaphoric or emotion-laden meaning.  The word "probable" in reference to a projected outcome means that said outcome is more likely to occur than not to occur.  In other words, it may be equated with a specific probability or range of probability re that outcome, namely: a better-than-50% chance of occurring. The words "very probable," obviously, imply even greater probability of occurrence, though precisely how much greater is unclear. It goes without saying that crafters of statutes must both use and intend the use of the literal meanings of the terms they employ. Otherwise, legal confusion and chaos would obviously result.

Guarding against the impressions created by anti-drunk-driving publicity campaigns: Finally, it is important that we keep in mind that the nation has been made audience to a massive and vigorous publicity campaign against drunk or alcohol-impaired driving since the founding of M.A.D.D. (Mothers Against Drunk Driving) in 1980.  This campaign has doubtless saved many lives over the past 17 years, and I have no brief against it whatever. Like all efforts to "raise the public's consciousness" about a social problem, however, campaign strategists look for ways to get their message across that with maximum substantive and emotional impact.

Public service announcements and other sorts of anti-drunk-driving information do not ordinarily take great pains to offer critical or searching assessments of the statistics they employ.  So, for example, the average American will not be privy in these publicity campaigns to the daunting methodological problems associated with clearly operationalizing and then measuring "alcohol-related" vehicle fatalities.

Obviously, the Board's analysis of your husband's case must insulate itself somewhat from the inevitable distortions of such publicity info and seek to find reasonable grounds for its declarations.

III. The "Probable Consequence" Standard

The question that must be addressed is: What sort of probability calculation or estimate can we properly apply to your husband's circumstance in order to test the Board's probable-consequence assertion?  The following rough calculation is adequate for this purpose:  

The calculation:  In order to make a prospective (i.e., not after-the-fact), ballpark estimate of your husband's pre-crash risk of becoming a traffic fatality on the night of XX Aug 8X, we must construct a fraction reflecting that risk probability.  That fraction has the number of alcohol-related fatalities in 198X in its numerator and the number of alcohol-impaired instances of driving in the same year in its denominator.

The numerator:  According to the U.S. Department of Justice's Sourcebook of Criminal Justice Statistics, there were 46,087 reported deaths from motor vehicle accidents in 198X, the year CPL Roberts died.  Of these, some 24,045, or 52%, were classified as "alcohol-related." We can use the latter number, 24,045, as the fraction's numerator.

The denominator: The denominator in this fraction is the total number of occurrences of alcohol-impaired or drunk driving in the nation in 198X.  The Sourcebook reports that there were 1,459,000 DUI arrests in the U.S. in 198X.
As it happens, the alcohol science literature suggests that there is roughly a 1:200 chance that an instance of "driving under the influence" will result in an arrest for DUI.   It follows, of course, that if the number of DUI arrests in the country was 1,459,000 and the probability of DUI arrest was I in 200, then the number of instances of DUI-driving is 200 x 1,459,000, or 291,800,000. If we in turn employ this latter figure in the denominator of our DUI-fatality risk calculation, CPL Roberts' probability becoming an alcohol-related motor vehicle fatality is 0.00008 - - a risk that may be more readily understandable as 8 chances in 100,000.  Or, put the other way 'round: his chances of not becoming a motor vehicle fatality were 99,992 in 100,000.  

The above calculation might be adjusted (or even disputed) in a variety of ways -- some adjustments marginally increasing, and some marginally decreasing, the estimated fatality risk probability it provides.1  It is difficult to imagine any refinement, however, that would alter the basic conclusion that your husband faced a tiny probability of becoming a motor vehicle fatality on XX Aug 198X.  Multipling his approximate risk probability (as I've calculated it above) by 10, by 100, or even 1,000 would not bring the result close to the 50,001-plus per 100,000 risk level implied by a literal interpretation of the "probable consequence" standard.

IV. The "Conscious Wrongdoing" Standard

Did your husband's pre-crash conduct involve "conscious wrongdoing"?

The Board's decision's text is actually quite vague with respect to the question of which of your husband's actions on XX Aug 8X were proscribed.  The text mentions drinking, speeding, and driving while fatigued -- indeed, it assembles these factors together in a kind of aggregate "act."

It is important to consider each separately however:

A. Fatigue is the easiest factor to consider. It is difficult to fit fatigued driving, per se, to the spirit and letter of the "conscious wrongdoing" standard. To my knowledge there is no law against driving while fatigued though of course good sense and prudence caution against it.

Hence it seems unlikely to me that the Board would regard fatigue, by itself, as constituting "conscious wrongdoing" on your husband's part.2

B. Speeding is the second element of "conscious wrongdoing" we need
   to consider.

It appears probable that your husband was speeding. The open questions are: (1) Can his actual speed be known with any confidence? and (2) Does speeding, per se constitute "willful misconduct" under the high standard the governing statute demands?

These are questions the Board must answer.

C. Drinking is the third element of "conscious wrongdoing."

Undoubtedly, this was the most important of the three in the Board's eyes.  A variety of indicators suggest that the Board viewed this factor as crucial.3

Despite all the emphasis placed on the drinking factor, however, I found the Board's text regarding drinking to be confused and uncompelling.  One serious difficulty presented is that the decision's text never quite declares, forthrightly and clearly, which specific actions in connection with drinking were proscribed or, in effect, wrongdoings on your husband's part on the night of 29 Aug 86.4

I believe that the Board has confounded together two quite separate issues with regard to you husband's alcohol use on the night of XX Aug 8X: the first is the issue of his drinking, per se, on that night and the second is the issue of whether your husband had a drinking problem (as evidenced, the Board argued, by both his DWI citation and his past alcohol-related treatment).

In order to clarify the relationship between these two issues, I'd like to begin my analysis by considering your husband's behavioral duties and proscriptions in a hypothetical circumstance in which he did not have a "drinking problem."  Such an exercise will help us see more clearly the role that a putative drinking problem plays in the Board's judgment. My iitial goal is simply to demonstrate that the Board's contention that your husband had a "drinking problem" is central to its assertion that your husband engaged in "willful misconduct."  

    Let us suppose for a moment, then, that your husband did not have a drinking problem and never before had been cited for driving under the influence of alcohol.

    If your husband had no "drinking problem" and no previous DWI, then his drinking-related conduct on 29 Aug 86 would have been simply that of a man ho consumed alcohol but not a. much as to put his BAL above the legal limit.

    In this circumstance there does not seem to be any reason (without invoking hindsight) to apply a standard of conduct re drinking to CPL Roberts that is more stringent than the per se DUI limit then in effect.5

    In short, no "drinking problem," no misconduct.

    Let us turn our attention, therefore, to what sort of a "drinking problem" your husband may have had and what sort of implications, duties, or proscriptions it implied for his drinking behavior on the night of XX Aug 8X.

    The simplest hypothetical case is ne in which your husband was a full-blown alcoholic. Let us ask:  Was your husband an alcoholic and, like all alcoholics, was he not supposed to drink at all (see no. 5, below).

    The record indicates that the answer to both question is clearly negative:  There is no evidence that CPL Roberts had been diagnosed as an abstinence-obliged alcoholic and thereby harbored a special duty not to drink at all on the night of XX Aug 8X.  Indeed, there is ample evidence to the contrary:

      a.  SGT J.R. Green's statement (X Sep 8X) notes that CPL Roberts "...wasn't dependent on alcohol ...... as well as that the caseworker to which CPL Roberts had been assigned in Okinawa had "...told him it was OK to drink..." but that he should drink only in supervised and familiar company.

      b.  The decision declares that the military physician's "clinical entry" in regard to your husband's drinking problem were "probative" because it "was made close in time for the purpose of medical treatment."  This entry does not, however, register a diagnosis of alcoholism, alcohol dependence, or alcohol abuse and, indeed, may be quite easily read as a physician's justification for prescribing Antabuse to a patient, whether or not that patient was alcohol dependent.

      c.  There is the significant -- if seemingly unnoticed -- fact that nothing in the record or the post-crash statements relating to your husband's case suggested that your husband should not be part of the group that went to a bar, that you husband should not join in the drinking that went on at the bar, or that your husband was asked to stop drinking at any point or for any reason, whether because of his "drinking problem" or anything other factor.

      d.  Your husband was in the company of two members of his unit, one of whom, SGT Green, was a person who appears to have been aware of CPL Roberts' diagnostic history re drinking.  That neither SHG Green nor CPL Johnson made any mention whatever of trying to dissuade CPL Roberts from coming along with them to the bar, trying to dissuade him from drinking at all, or trying to stop his drinking once started strongly suggests that neither CPL Roberts nor his companions saw him as duty-bound to an abstinence standard on the night of XX Aug 8X.

    Neither your husband nor his companions felt that he had a duty not to drink at all on that night.

    It might be noted in passing the finding that even if you husband were a bona fide alcoholic, that finding would not have wholly unambiguous implications with respect to the "willful misconduct" standard.  Alcoholism, for example, implies the possibility that your husband's drinking was not entirely freely "willed" -- presumably part of the connotation of "willed misconduct."6

    If your husband was not a full-blown alcoholic,7 was he nevertheless a "problem drinker"?  And what sort of special duty or proscription re drinking would have flowed from a "problem drinker" designation?

    The Board's decision never explicitly applied an "alcoholism" diagnosis to your husband, but it did (see footnote # x, above) suggest that the term "drinking problem" applied.
    What does the application of such a term actually imply?  Unfortunately, the term "drinking problem" is subject to even more confusion and differences of opinion than than the term "alcoholism."

    Some writers use "drinking problem" (or "problem drinker") as a catchall that includes both alcoholic and nonalcoholic drinkers with "problems."  Others reserve the terms for drinkers who are not dependent on alcohol but nevertheless encounter difficulties with their drinking -- of whatever provenance.

    For our purposes here, the important point is that the term "drinking problem" or "problem drinker" carries with it no clear implication or duty with regard to CPL Roberts' conduct on the night of XX Aug 8X.

    What, then, supplied the Board's view that CPL Roberts operated under a special duty re drinking and what exactly was that duty?

    The only other consideration bearing on CPL Roberts' conduct was presumably his past DWI citation.  Nowhere in the Board's decision however is it asserted that CPL Roberts was proscribed either from (a) all driving or (b) all drinking as a result of that violation.

    The decision mentions that his base driving privilege was suspended, but no specific reasons for the suspension were offered, nor is the suspension's duration and termination date noted.  We simply do not know, therefore, whether CPL Roberts was proscribed from either driving or drinking as a result of the DWI violation and what the length of such proscriptions may have been.  The DWI violation appears to have occurred in 198X (see decision, p. 7), which suggests that any proscriptions deriving from it may in any case have lapsed by XX Aug 8X.

    What is significant in the Board's decision's text, it seems to me, is that the Board itself appeared to be uninterested in the specifics of the DWI and the special duties or responsibilities devolving from it re either driving or drinking.  The Board's decision's text in effect appears to be satisfied with an essentially undefined special duty -- something associated in general with the several factors it mentions, but never actually specifying which factor, and in what way, special proscriptions regarding drinking or driving were in effect.

    It has occurred to me that even the matter of CPL Roberts' exposure to driving school as a result of his DWI violation may have suggested to the Board that CPL Roberts would have been in a better position to know about, and therefore, take precautions against the perils of alcohol-impaired driving.  Perhaps CPL Roberts may even have been made aware of literature and findings (of the sort it provided to you) in his driving school experience.  Even in that case, however, I see no necessary proscription that CPL Roberts may have regarded himself as beholden to.8
    There is a final, singular fact that I should like to highlight in relation to CPL Roberts' putative drinking problem and its relation to his conduct on XX Aug 8X.  It has not been highlighted before, but I believe that this fact deserves singular attention: CPL Robers' BAL was probably somewhere in a range from 0.75% to 0.12% -- somewhere between being either marginally below or marginally above the then in effect per se limit of 0.10%.
    If, however, CPL Roberts did indeed have a "drinking problem" that was in effect on the night of XX Aug 8X, why then was his BAL so low as to fall in this range?
    A "problem drinker" who drinks over the course of a long evening might be expected not to stop drinking or modulate his intake until he passed out or his BAL reached much higher levels--0.15%, 0.20%, 0.25%, or even higher.  Such very high BALs are commonplace among DWIs who are referred to alcoholism treatment and indeed provide an important element part of the argument presented for the appropriateness of that referral (see Gusfield, 1994, p. 212 et seq.).
    Ironically, then, the fact that CPL Roberts' BAL was either marginally below or above the 0.10% per se limit affords, in this particular context, strong evidence that the "drinking problem" aspect of this case is moot with respect to that particular evening.  Whatever else CPL Roberts may have been doing, his BAL does not indicate that he had played out the uncontrolled and high-quantity pattern of alcohol consumption consistent with a "problem drinker" or "alcohol dependent" designation on that evening.  

V. Conclusions

The two standards the Board invokes to justify its decision -- "probable consequence" and "conscious wrongdoing" are quite simply not sustained by the facts of this case.

The "probable consequence" standard is clearly not met, as the crude probability calculation offered earlier clearly demonstrates.

The "conscious wrongdoing" standard involves a murky conflation of conducts and supposed special duties bearing on you husband that are nowhere clearly explicated. My own effort to explicate and test them, moreover, comes up with little confirmation for the Board's view.

I fear that what we have at hand here is a judgment strongly influenced by hindsight on the Board's part. This is by no means an unusual conceptual tendency in relation to tragic events such as that which befell your husband. Tragic events are extraordinary and devastating and they call out for "moral explanation" as much as "scientific" or "causal" explanation.  In a moral conceptual idiom or framework, we all tend to look for evidence of misconduct or even character flaws that explain -- perhaps unspokenly -- the moral questions posed by tragic death.  It is instructive, for example, to consider what kind of judgment boardmembers may have had if CPL Roberts had made it to his destination safely that fateful night.  Yes, he would have driven when he was fatigued; yes, he would have driven too fast; and, yes, he even would have driven with a BAL approaching the legal limit, but his safe arrival would have rendered these factors in a much more benign light -- perhaps as foibles of youth.  The harsh language of "willful misconduct," "wanton and reckless disregard," and "conscious wrongdoing" simply would not have applied.  Therefore, I am quite comfortable with the conclusion that a kind of retroactive consequentiality, an unnotice hindsight that looks to explain tragedy with enhanced projections of moral turpitude, is quietly at work in the Board's decision.

Nothing in the fact picture of this case can fully dispell a rather simple model of what happened:  Your young husband probably thought he was tired and had done some drinking but could nevertheless safely make it to his destination. The road was clear and dry and he even risked exceeding the speed limit by some unknown margin.  The vast majority of times young men make this judgment they do indeed arrive at their destinations safely.  Your husband was young, strong, and (it might be noted) a Marine.  He undoubtedly figured, if he thought about it much at all, that this would be one of those safe times.

There is imprudence and even foolhardiness in this conduct, but there is nothing, in my humble judgment, that coimes close to justifying or sustaining the harsh language and opprobrium that is required and resides in the Board's decision.  Only as distoriting moral hindsight would come to the conclusiton that either the "probable consequence or the "conscious wrongdoing" standard is truly met in your husband's case.

1 For example, the lower your husband's BAL on XX Aug 8X, the more the denominator of this calculation should be multiplied by a number expressing the ratio of below-the-limit-BAL drivers to above-the-limit-BAL drivers.  Such an exercise would at a very minimum double or triple the denominator, thus significantly reducing CPL Roberts' already tiny probability of motor-vehicle fatality.  On the other hand, it might be noted that your husband's speeding and fatigue need to be factored into his risk equation.  Narrowing the risk calculation to only those DUI-candidates who were fatigued and drove above the speed limit would, of course, considerably contract the denominator, thus increasing CPL Roberts' fatality risk.  Of course, one need to bear in mind that the gross figure of 24,045 fatalities in 198X already includes the speeding and fatigue factors because many such fatalities occurred during late-night or after-midnight hours when drivers might be expected to be fatigued and, of course, fatalities are relatively rarer in low-speed crashes. These sorts of wouldbe refinements -- however interesting they may be as intellectual exercises -- will do little to affect the chief conclusion we may draw from this analysis and calculation.

2 As anyone who has found themselves driving in a sleepy condition knows, the literal application of the "conscious" element of the "conscious wrongdoing" standard to fatigued driving or failing asleep at the wheel is problematic because fatigue is an unwilled condition and one that dulls one's awareness of the need not to drive in a sleepy condition. This is another reason, were another necessary, to suggest that the fatigue cannot be made to bear much weight in the Board's consideration of the "conscious wrongdoing" standard.

3 For example, the decision's text offered quotations from the scientific literature to the effect that even BALs below the 12er se limit impaired the driving ability; the Board sent copies of relevant articles or passages to you; and your husband's medical records were commented upon in connection with a putative "drinking problem."

4 Even passages such as the following from the Board's decision when closely examined to not clearly explicate the specific misconduct CPL Roberts engaged in:
Based on his knowledge of his prior drinking problem, his prior receipt of a DWI, his enrollment in an alcohol rehabilitation program, his loss of base driving privileges, and his noncommissioned officer prohibition against his driving after drinking, he surely knew he was committing a 'conscious wrongdoing or known prohibited action' (page 13).
5 Even in a state of "perfect information" -- say (once again, for the sake of argument) that your husband had by chance read newspaper accounts of the Moskowitz et al. (1985) paper just the day before -- what duty or standard would it have implied for him?  Obviously, public policy sets the legal standard alcohol-impaired driving, not individuals.  Public policy's limits in this regard are set with an eye to differentiating allowable marginal incrteases in crash-risk (positive BALs below the legal limit) from proscribed levels of crash-risk (above the legal BAL limit).  Like all of us, your husband obviouslyt had a duty to obey the law, but he had no clear duty to adhere to a stricter standard that the law did not oblige.

6 It might be noted in this connection that the occupational culture of the military has a longstanding tradition of heavy drining (see Sonnenstuhl, 1996).

7 The implications of the alcoholism concept and diagnosis have been a matters of keen controversy for years. Some experts hold that alcoholics must never drink, but others reject this belief (see Roizen, 1987, attached).  Moreover, though some experts hold that the alcoholic can control whether or not to take the first drink (but cannot control subsequent intake) , other experts hold that even the first drink is not subject to full volitional control.  In short, a bona fide alcoholism diagnosis might have provided the basis for an argument that your husband's drinking on XX Aug 8X cannot have truly constituted "willful misconduct" because his alcoholism, per se, implied an impaired degree of volitional control re drinking.  Thankfully -- and since you husband's record does not suggest an alcoholism diagnosis -- we may avoid these sorts of complexities!

8 Who can say what CPL Roberts may or may not have learned from driving school? He may have learned that more experienced drinkers are less affected by positive BALs than less experienced drinkers (Zylman, 1968, p. 228).  Such driving-school experiences, sociologist Joseph R. Gusfield has shown, often involve quite contentious exchanges between instructors and a dubious and critical student group (see Gusfield, 1994, pp. 205-241).  One important residue of CPL Roberts' DWI experience may have been a heightened sensitivity to his own BAL, thus helping explain why his BAL may have been as low as it was on XX Aug 8X.

Judgment:  For "Mrs. Roberts"