Andrew Allis, Granville

In the 2002 Spielberg-directed futuristic science fiction movie “Minority Report,” set in the year 2054, Tom Cruise stars as the chief of the “Precrime” unit, a specialized police force which arrests would-be future criminals from information provided by prescient psychics (called “precogs”) before a crime is even committed. This movie is science fiction for a reason: in a dystopian world, people are punished for something that hasn’t even happened yet.

Unfortunately, we have such a law on our books today, which has been around since 1973. It criminalizes what someone might do, because they possibly (arguably) are in a position to do so in the future, even if they have zero intention of doing it (intent doesn’t matter), and assigns to them the exact same penalty as if they did do it. This law has been upheld by state supreme courts, and largely expanded in many states, including North Dakota’s. It’s called “Actual Physical Control,” or APC, which criminalizes a potential, not actual, crime of driving under the influence.

The original intent of the APC law was to prevent intoxicated people from getting behind the wheel. However, as applied today, it targets even passengers, or people not even in a vehicle, something legislators expressly stated should be excluded because they didn’t want to discourage people from using designated drivers.

After all, if someone can be arrested as a passenger, or because they’re sleeping in the backseat, then there’s no difference between driving while intoxicated and not driving, especially when the penalty for an APC is exactly the same as for a DUI. Even our state supreme court supported this position as early as 1977, saying in State v. Ghylin that “the real purpose of the statute is to deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.”

Yet there have been instances of passengers, seated in the passenger seat, arrested for being in “actual physical control” of a vehicle when their sober designated driver just ran into a store, building, or house, to get something.

I’m not sure if the APC law has ever been tested at the US Supreme Court level, but it needs to be because criminalizing potential behavior is patently unconstitutional. As a parallel, we do not arrest locksmiths for burglary for simply having their tools and a ski mask with them on a cold winter night, just because they arguably may be in a position to possibly commit that crime.

Ridiculously, even when vehicles have been disabled (broken down, mechanically inoperable, stuck, or otherwise immovable), prosecutors have successfully argued that someone could have cured the vehicle’s disability and so convicted citizens with an APC. The North Dakota Supreme Court has interpreted this law very broadly. In 1991’s City of Fargo v. Komulainen, the Court upheld a woman’s APC conviction even though the vehicle’s distributor cap had been removed, rendering it completely inoperable.

Other interpretations are more outlandish. In 2003’s Tennessee v. Butler, that state’s Supreme Court upheld an APC conviction of a man standing 100 yards away from his motorcycle, holding the bike’s broken spark plug. These APC laws are highly subjective, leaving unsuspecting citizens (most of whom don’t even know this law exists), law enforcement officers, prosecutors, and judges with differing understandings of what constitutes “actual physical control.”

While no legislator wants to be labeled as “soft on crime” or “soft on drunk driving,” these laws criminalize potential behavior, therefore legislators should do what’s right, not what’s personally politically expedient. No law is good that tramples on a citizen’s right not to be arrested for something they haven’t even done, and assigns them the same penalty as if they had done it. All kinds of unconstitutional laws would save lives, but at the cost of our freedoms guaranteed under the Constitution. We’ve already seen enough recently (think Covid) of citizens’ rights being savaged under the rubric of “public safety.”

There are already multiple laws on the books to ensure that drunk drivers can be punished for their actual conduct: manslaughter, criminal vehicular injury, negligent homicide, reckless endangerment. While I will never discount the grief of losing a loved one to an alcohol-related traffic crash, and certainly want to prevent other families from going through the same grief, our society cannot constitutionally punish someone for what they might do, but only what they actually have done.

Nor should APC laws be defended on the grounds of being “settled law.” The United States Supreme Court has overturned unconstitutional laws before setting new precedents: Dred Scott was “settled law” until it was overturned, and so was Plessy v. Ferguson, Roe v. Wade, and Affirmative Action (reverse-discrimination) in college admissions. The United States Congress keeps a dedicated webpage for overturned Supreme Court decisions, which details 235 separate cases overturning prior rulings, 43 of which occurred in the last 30 years.

It’s time to add the “arrest-them-before-they-commit-the-crime” APC laws to this list. Otherwise, the absurdly dystopian future of our science fiction movies has, in fact, become our present.