(dissenting) — Washington law prohibits any person under the age of 21 from possessing or consuming alcohol. RCW 66.44.270(2). Each and every person violating this law is subject to traditional juvenile or criminal penalties, including potential incarceration. Yet Washington's statutes single out one small group, those aged 13 through 17, for additional punishment. Members of this group automatically lose their driving privileges for a minimum of 1 year.58 See RCW 46.20.265; RCW 66.44.365; RCW 13.40.265. The creation of this underinclusive class lacks any rational basis, both in excluding all those under the age of 13, and in excluding all those aged 18 through 20. Because the legisla*568tion violates equal protection, I dissent. I also address two constitutional issues not directly raised by the parties; substantive due process and proportionality of punishment.
I
Equal Protection
The Legislature's rationale for creating the enhanced penalty for 13- through 17-year-olds is as follows:
The legislature finds that many persons under the age of eighteen unlawfully use intoxicating liquor and controlled substances. The use of these substances by juveniles can cause serious damage to their physical, mental, and emotional well-being, and in some instances results in life-long disabilities.
The legislature also finds that juveniles who unlawfully use alcohol and controlled substances frequently operate motor vehicles while under the influence of and impaired by alcohol or drugs. Juveniles who use these substances often have seriously impaired judgment and motor skills and pose an unduly high risk of causing injury or death to themselves or other persons on the public highways.
The legislature also finds that juveniles will be deterred from the unlawful use of alcohol and controlled substances if their driving privileges are suspended or revoked for using illegal drugs or alcohol.
Laws of 1988, ch. 148, § 1, p. 592.
This legislation, and its rationalization, gives me great concern. By limiting the loss of driving privileges only to minors aged 13 through 17, Washington's "abuse and lose" legislation triggers two distinct issues for analysis, one at each end of the classification's age range.
First, at the high end of the range, the legislation treats 17-year-olds differently than 18-year-olds. In concluding that this distinction has a rational basis, the majority refers primarily to other instances in which the Legislature already distinguishes between those under age 18 and those aged 18 through 20. Majority opinion, at 564-65.
This reasoning is rather startling. Merely because a distinction between 17-year-olds and 18-year-olds is used in some settings, such a distinction does not automatically justify it in others. The majority presents no persuasive reason why in this particular setting the distinction between 17-year-olds and 18-year-olds is constitutionally sound.
*569Instead, the analysis should examine whether the Legislature could rationally conclude that individuals aged 13 through 17 are more likely to cause harm as drunk drivers than those aged 18 through 20. How could they be? Driver's licenses cannot even be acquired until the age of 16, and instructional permits (requiring a licensed driver who has been driving for at least 5 years to ride in the passenger seat) can be acquired only a half year earlier. See RCW 46.20.031(1); RCW 46.20.055(l)(a). For example, a 19-year-old who drinks alcohol, and who presumably already has a driver's license, is a far greater risk for driving while drunk than is a 14-year-old, who cannot even drive a car for the next 2 years. The 19-year-old is drinking while licensed to drive, yet we cannot know that the 14-year-old will continue to drink after he or she reaches the driving age, let alone drink and drive. Cf. State v. Barnes, 117 Wn.2d 701, 709, 818 P.2d 1088 (1991) (discussing the unreliability involved in predicting future dangerousness).
Moreover, although the majority's quotation from a law review article shows that juveniles are involved in disproportionately high numbers of fatal traffic accidents, the quotation does not establish that this is due to the use of alcohol. The quotation's last sentence, stating that juveniles who drink have "an increased probability of traffic accidents", states very little; any group that drinks will have an increased probability of traffic accidents. Majority opinion, at 562.
To the contrary, a review of the authorities relied on by the majority reveals that 18- through 20-year-olds are more likely to harm the public through drunk driving than is the group targeted by the "abuse and lose" legislation. According to those authorities, only 25 percent of youth aged 12 to 17 — as opposed to 58 percent of individuals aged 18 to 20 — drink alcohol in any given month. See National Transp. Safety Bd., Safety Recommendation H-93-1 through -9, at 3 (Mar. 11, 1993). This pattern of alcohol use increases through the teen years until age 21, so that 61 percent of people aged 18 to 21 regularly drink alcohol. Safety Recommendation, at 4. Given *570that the group targeted by the "abuse and lose" legislation uses alcohol less often and drives less often (see discussion above) than do 18- through 20-year-olds, I can only conclude that the targeted group represents a substantially smaller risk of harm to others through drunk driving than do individuals 18 and older. In fact, the greatest incidence of alcohol-related driving accidents is not among juvenile drivers at all, but is in the 23-year-old age group. See Johnson v. State Hearing Examiner's Office, 838 P.2d 158, 182 (Wyo. 1992) (Cardine, J., concurring specially).
In light of these observations, it is difficult to conceive what rational basis the Legislature would have for excluding those aged 18 and older.
Nor does the majority convincingly explain why the classification's lower limit, a person's 13th birthday, comports with equal protection. The majority looks to the legislation's deterrent effect in justifying this distinction. According to the majority, the Legislature could rationally conclude that "abuse and lose" legislation would deter 13-year-olds but not younger children. Majority opinion, at 566.
I disagree. In this state, a child is presumed incapable of committing a crime until the age of 12. See RCW 9A.04.050. Thus, it is the 12th birthday, not the 13th, which determines when minors acquire the mental capacity to determine their own actions and hence when they are capable of being deterred. Accordingly, even if one were to assume that any lower limit could be constitutionally set for this legislation, the 13th birthday would not be that proper lower bound.
The selection of the 13th birthday as a basis for distinction appears to have been wholly arbitrary. Nothing in the legislative findings explains the use of this date. In fact, the findings allege that all juveniles will be deterred by "abuse and lose" legislation. See Laws of 1988, ch. 148,. § 1, p. 592. Nor have we been pointed toward any relevant research or study that reveals any basis for finding any difference in deterrence between the ages of 12 and 13.
*571The arbitrary nature of the legislation's lower cutoff date is heightened with the recognition that the Legislature appears to have adopted this distinction without any meaningful consideration. The "abuse and lose" legislation was initially passed by the House without any lower age limit. See House Bill 1482, 50th Legislature (1988). The lower age limit was later added by the Senate, and approved in the House, yet the legislative history reveals no explanation for this change, other than a desire to conform to Oregon's statute. Thus, the Legislature does not appear to have considered at all whether 13-year-olds are more susceptible to this legislation's deterrence than are younger children. I can only conclude that the setting of the lower limit was an arbitrary act in violation of equal protection.
The majority emphasizes the principle that the Legislature is not required to address every problem in its entirety. As the majority states, the Legislature "is free to approach a problem piecemeal and to learn from experience." Majority opinion, at 567 (quoting Yakima Cy. Deputy Sheriff’s Ass'n v. Board of Comm’rs, 92 Wn.2d 831, 601 P.2d 936 (1979), appeal dismissed, 446 U.S. 979, 64 L. Ed. 2d 835, 100 S. Ct. 2958 (1980)). While in many contexts I would agree with this statement, it has important limits. Were the principle to apply as broadly as it is stated here, no underinclusive legislation would ever violate equal protection; every such enactment could be upheld as a piecemeal solution. It is the court's role to examine the basis justifying such distinctions among classes of individuals. The court may well find that, as with the current legislation, the relationship between the classification and its goal is "so attenuated as to render the distinction arbitrary or irrational". See Nordlinger v. Hahn, _U.S._, 120 L. Ed. 2d 1, 112 S. Ct. 2326, 2332 (1992).
Accordingly, I conclude Washington's "abuse and lose" legislation violates equal protection. Since my concerns with this legislation are not limited to equal protection, I also briefly address the constitutional issues of substantive due *572process and disproportionate punishment presented by this law.
II
Substantive Due Process
This legislation, even if it had not been restricted to a particular age group, would still suffer from a fundamental flaw: there is no rational basis for revoking driver's licenses based on nondriving offenses. The possession of consumption of liquor in no way requires the operation of a motor vehicle; therefore, a finding that a person possessed, or even drank from, a can of beer hardly establishes that the person is a threat as a drunk driver. In fact, many people who drink take pains not to drive while drunk. Thus, the legislation arbitrarily punishes for an offense not committed — driving while drunk.
Because this offense has no immediate connection with operating a motor vehicle, the license revocation is arbitrary and lacks the rational relationship demanded by substantive due process. See Johnson, 838 P.2d at 172-74. To similar effect, Washington's courts have required, both before and after the passage of the Sentencing Reform Act of 1981,, a rational relationship between conditions imposed in a criminal sentence — here, the license revocation — and the underlying crime. See State v. Riley, 121 Wn.2d 22, 36-38, 846 P.2d 1365 (1993); State v. Eilts, 94 Wn.2d 489, 494, 617 P.2d 993 (1980) (restitution, as a condition of probation, must be related to the crime being charged). "[T]he mere fact that drinking is associated with driving in the abstract will not suffice to supply the requisite rationality." Johnson, 838 P.2d at 174 (quoting from Commonwealth v. Strunk, 400 Pa. Super. 25, 41, 582 A.2d 1326, 1334 (1990) (Popovich, J., dissenting), appeal denied, 528 Pa. 630 (1991)).
The Legislature's rationalization quoted above, especially its third paragraph, reveals that the Legislature's true aim here is not deterrence of drunk driving, but deterrence of drinking.in and of itself.59 This being the case, the Legislature *573might just as easily have used the threat of revoking driver's licenses to deter other nondriving offenses, such as shoplifting, juvenile vandalism, loitering, or even the commission of sexual offenses. See Johnson, 838 P.2d at 172-74; People v. Lindner, 127 Ill. 2d 174, 176, 535 N.E.2d 829 (1989) (statute revoking driver's licenses for commission of sexual offenses is arbitrary and violates due process); Strunk, 400 Pa. Super, at 41-43. The problems involved in pursuing this "deterrence" approach have been well summarized elsewhere:
The test of "rational relationship" as defined by the "deterrence" rationale is not logically cabined solely to the offense of underage drinking or offenses committed by minors. Consider a legislature desirous of deterring juvenile vandalism. Under today's rationale, and owing to the intractable nature of juvenile deterrence, the legislature might rationally consider suspension of operator's privileges as an effective deterrent. Following like reasoning, the legislature might penalize public drunkenness or disorderly conduct or loitering with suspension of operator's privileges. To be sure, these are but a few examples. Troublesome with the "deterrence" rationale is that its limits are largely defined by the ingenuity of legislators, not by the test of rationale relationship under the substantive component to the Due Process Clause.
Strunk, 400 Pa. Super, at 43 n.3 (Popovich, J., dissenting).
Ill
Disproportionate Punishment
"Abuse and lose" legislation involves double punishment since an offender faces traditional criminal sanctions as well as revocation of driving privileges. The nature and extent of this punishment raises issues of proportionality under the eighth amendment to the United States Constitution. Similar legislation in another state has already been overturned on this basis. See Johnson, 838 P.2d at 177-78. Revocation of driver's licenses causes extended, long-term consequences to young drivers that exceed the simple loss of a license. For one thing, the legislation often sets up a juvenile for repeated, self-perpetuating run-ins with'the law, for many young people will drive even without a license. District and municipal courts *574throughout the state devote a large percentage of court time to hearing license cases. Many of these cases involve young people who would have no contact with the criminal justice system but for the deep holes into which they have dug themselves through licensing problems.
The difficulty for young people is further exacerbated by the significant increases in the cost of automobile insurance once the driver requalifies for a license. See Johnson, 838 P.2d at 166. The financial obstacles most significantly impact young people from families on the lower end of the economic spectrum. See Johnson, 838 P.2d at 166.
Because this legislation violates equal protection, I dissent.
Guy, J., concurs with Madsen, J.
A driver's license revocation may last even longer than 1 year. A first-time offender's license is revoked for a period of 1 year or until the offender's 17th birthday, whichever elapses later; subsequent violations lead to a 2-year revocation or until the violator's 18th birthday, whichever elapses later. See RCW 46.20-.265(2).
The majority of the group being singled out cannot possess a driver's license. Thus, the Legislature's inclusion of the second paragraph, postulating that *573juvenile drinkers might also drive after drinking, appears to have been merely an afterthought and an attempt to legitimize an otherwise arbitrary penalty.