Burger v. State
This text of 163 S.E.2d 333 (Burger v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
Admittedly there is a great surge of opinion among religious and social workers, and among some doctors, that alcoholism is a disease and that one who, being .a chronic alcoholic, becomes drunk, should not be punished but should be treated for his condition. But, as was pointed out in Powell v. Texas, 392 U. S. 514, 522 (88 SC , 20 LE2d 1254), “there is no agreement among members of the medical profession about what it means to say that ‘alcoholism’ is a ‘disease.’
The theory that alcoholism is a disease and that it can be treated is relatively new. There is no wide experience which demonstrates whether it be right, particularly in several of the [330]*330recognized types of the condition. On the other hand drunkenness, either public or in the form here involved, has been regarded as a crime since long before this country had its founding as a republic. As was pointed out in Powell v. Texas, supra, while a jail term for the offense may not be “therapeutic” in the sense of effecting a cure of the underlying causes of the defendants’ misbehaviour, it does serve to “dry them out,” gets them off the street where they are exposed to danger in many ways, and may serve as an incentive to put some control on their drinking.
Chronic alcoholism was held not to be a defense to the offense of escape in Grimes v. Burch, 223 Ga. 856 (159 SE2d 69) where an excellent discussion is to be found of the matter of criminal responsibility on the part of one who commits an offense while drunk.
Just as was true in Powell v. Texas, supra, the record here is scanty, revealing little of the defendant’s problem, or about the nature of alcoholism itself. Perhaps it is just as well, in view of the unsettled status of the views of the problem taken by the medical profession and the sociologists1 up to this time. There may well come substantial advances in discovery of the nature of the problem and of what can be done about it, making desirable another look at it from this vantage.2
[331]*331But as matters now stand we apprehend that a reversal of this judgment is likely to result in having substantially all of those who are arrested on charges of drunkenness, or charges involving drunkenness, enter pleas of chronic alcoholism, whereupon they would simply be returned to the streets and the wine shops. As Mr. Justice Marshall reminds us in Powell v. Texas, 392 U. S. 514, 529, supra, “the medical profession cannot, and does not, tell us with any assurance that, even if the buildings, equipment and trained personnel were made available, it could provide anything more than slightly higher-class jails for our indigent inebriates. Thus we run the grave risk that nothing will be accomplished beyond the hanging of a new sign — reading 'hospital’ — over one wing of the jailhouse.”
While the Act of 1964 (Code Ann. § 88-101, et seq.), exhaustively revising, consolidating and codifying the laws relating to the Department of Public Health, its powers, duties, etc., and, inter alia, “to provide for hospitalization, detention, rehabilitation, and release of persons suffering from alcoholism,” does, for that purpose, define alcoholism as an illness (Code Ann. § 88-401), it does not purport to and does not deal with drunkenness as a crime or as a defense to acts which the law makes criminal.
Moreover, it may be questioned as to whether the General Assembly can by its fiat declare some physical status to be or not to be an illness. Is it within that body’s competence to establish or disestablish scientific facts? Are they qualified to do that which over the span of many centuries has been a peculiar province of the medical profession? Suppose the Assembly should adopt an Act declaring that measles or tuberculosis is not a disease, or that perspiring upon exertion is one, would the declaration become an established scientific or medical fact? We believe that this is a matter that must lie within the judgment of the medical profession.
It is still an offense to drive motor vehicles on the public highways of this State while drunk or even under the influence of alcoholic beverages, Code Ann. §§ 68-1625, 68-9927, and the General Assembly of 1968 has provided that one who drives vehicles on the highways impliedly consents to having his blood [332]*332tested for the alcoholic content, the result to be used as evidence in his prosecution for driving while drunk or under the influence. Ga. L. 1968, p. 448. If chronic alcoholism or dipsomania is to be accepted as a defense to a charge of drunkenness, would it not also be logical to accept it as a defense to a charge of driving while drunk? If so, how are we to eliminate or slow down the greatest cause of death on the highways? And why not accept a plea of pyromania by an arsonist, of kleptomania by a thief, of nymphomania by a prostitute, or a similar plea of impulse and non-volitional action by the child molester? Many other examples might be listed. What criminal conduct can be regulated or controlled if “impulse,” a “feeling of compulsion,” or of “non-volitional action” arising out of these situations is to be allowed as a defense. This Pandora’s box had best be left alone for now.
Judgment affirmed.
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Cite This Page — Counsel Stack
163 S.E.2d 333, 118 Ga. App. 328, 1968 Ga. App. LEXIS 1382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burger-v-state-gactapp-1968.