Guilt by Irresponsibility or Guilt by Association? Steve McNair Arrested for DUI by Consent

Baltimore Ravens quarterback Steve McNair was arrested late yesterday in Nashville, Tenn., on a driving under the influence by consent charge. He was a passenger in his silver 2003 Dodge pickup truck, which was being driven by his brother-in-law. There is no evidence that McNair himself was intoxicated or even had any alcohol in him, as that doesn't matter with a DUI by consent charge: all that matters is the driver of the car was impaired, and that the owner of the car allowed the driver to drive the car; if so, the owner of the vehicle can also be charged with DUI, even if he isn't in the car. An increasing minority of states have this law or something similar (e.g., "aid and abet DWI" in North Carolina), and unfortunately for McNair, Tennessee is one of those states.

Rick Maese of the Baltimore Sun has an excellent column today on McNair's arrest and relates it to public reaction to Josh Hancock's death and the NFL's new discipline policy. I was interviewed for the column, and here are some excerpts:

Today we're swimming in that gray area, where you may not agree with a murky Tennessee law, where you don't know if there's a definite right and a definite wrong, and where we have no idea how the NFL will respond. With its new player conduct policy, the league has hinted that it might not see different shades in its black-and-white world.

This is made all the more difficult because sport is built within boundaries, rules and scores. Everything is measurable, the drama usually confined to a two- or three-hour block of time. But as more athletes do their in-town traveling via the back seat of a police car, there's no instant summation or clear-cut understanding.

"It's so easy to jump at the first facts," says Michael McCann, an assistant professor at the Mississippi College School of Law who runs sports-law.blogspot.com. "We're moved by the tragedy or the initial news report."

McNair's alleged infraction -- riding shotgun in a car he owned while the driver was allegedly drunk -- violated what McCann termed an "unusual law." As certain states strive to "get tough" and "crack down," they've lengthened the reach of accountability. In civil cases, you choke on food and skip over the line cook to sue the restaurant chain. And in criminal cases, authorities stretch liability as far as they can to discourage recklessness, and in theory, save lives.

"This is a law that's very scrutinizing of those who own cars and very protective of others on the road, the bystanders," McCann says. "It's built around public safety. It is your car, and there's certain expectation that you'll be responsible with it. It certainly raises the ante a bit."

If the facts come out and McNair knowingly allowed someone under the influence to get behind the wheel, he'd probably be guilty of pretty bad judgment. Did he break a law? Did he endanger others? It's foolish to even try inferring definitive answers today.

After all, the first thing to hit newsprint often only hints at the bigger truth. In this case, we're talking about "McNair charged a second time with DUI" -- even though he wasn't convicted the first time and last night's alleged infraction sure has the makings of something that will be contested.

The full story is usually too complex to fit on ESPN's crawl. As a news item, it has the movement of a knuckleball and we don't know the direction. Similar to when a stripper accused lacrosse players of sexual assault. Or to when we lionized a likable young pitcher who was killed in a car accident.

One and a half weeks ago, Josh Hancock, of the St. Louis Cardinals, died after running his Ford Explorer into a parked tow truck. Initial news reports praised Hancock and mostly ignored the unanswered questions. We later learned there was much more to the story, and that Hancock had a blood-alcohol level nearly double the legal limit.

"He went from being a hero to someone who we were suddenly skeptical of," McCann says. "I think certainly we need to be cautious until all of the facts come out. Whenever we react immediately, we're missing facts and context to the story."

This brings us to the NFL commissioner's office, which just last month issued a new conduct policy for its players, a set of vague zero-tolerance guidelines that would benefit from heeding the same warning as fans: When it comes to doling out punishment and deciding complicity, the smart area is somewhere between hard and fast and weak and slow. It's the gray area.

For the rest of the column, click here.

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