On Monday last week, two highway police officers were killed by a truck while performing their duties. The incident is thought to have happened because the truck driver had worked for 22 days in a row, raising the question of whether drowsy driving, which is no less dangerous than drunk driving, should be made a criminal offense.
The only penalty for drowsy driving is in Article 34 of the Road Traffic Management and Penalty Act (道路交通管理處罰條例), which says that any driver who has driven continuously for more than eight hours or is so ill as to affect driving safety will be fined between NT$1,200 and NT$2,400 and banned from driving.
However, it is doubtful whether the eight-hour limit is reasonable or scientific, and the article states that driving must be continuous, so this condition will not be met if the driver has taken a break, making it hard for police to enforce the law.
Furthermore, an administrative fine of a few thousand New Taiwan dollars is really no deterrent.
The law’s inability to prevent drowsy driving might lead to the idea of criminalizing it along with drunk driving by making them both subject to Article 5-1, Paragraph 3 of the Criminal Code, which concerns endangering traffic safety.
However, this involves another problem: The standard for punishing drunk driving — a breath alcohol concentration of 0.25 milligrams per liter or blood alcohol concentration of 0.05 percent — is easy for police to enforce, but how would such a standard be set for drowsy driving?
Maybe legislators could set a certain number of driving hours as the benchmark that decides whether a driver should face criminal punishment, but they would then face the difficult question of how many hours it should be. Even if they manage to set a number, there would probably be arguments about what constitutes continuous driving and how police are to prove it.
On the other hand, if the standard for law enforcement is less precise, decisions about whether to impose checks for driver fatigue would depend entirely on the arbitrary judgement of police officers, who could then face allegations from the accused or prosecutors and judges. This kind of criminalization would therefore be even less effective at preventing drowsy driving.
If these legal principles and enforcement techniques are set aside and drowsy driving is really made a criminal offense, lawmakers would also have to consider whether other dangerous behaviors such as speeding should also be regulated by criminal law.
Lawmakers could follow the example of Japan, which in 2013 enacted a law concerning dangerous driving and raised the prison sentence to 20 years for cases resulting in death.
However, such a measure places too much faith in the omnipotence of criminal penalties, while overlooking the philosophy of judicial modesty and restraint, which holds that criminal law should be the last resort rather than the foremost means of resolving social disputes.
The actual urgent tasks should therefore be to impose much heavier fines and to review and improve methods of enforcement.
Wu Ching-chin is an associate professor of law at Aletheia University.
Translated by Julian Clegg
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