Drunk driving (United States)
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Drunk driving is the act of operating a motor vehicle under the influence of alcohol and/or drugs to the degree that mental and motor skills are impaired. It is illegal in all jurisdictions within the U.S. The specific criminal offense is usually called driving under the influence [of alcohol and/or other drugs] (DUI), and in some states driving while intoxicated (DWI), operating while impaired (OWI), or operating a vehicle under the influence (OVI). Such laws may also apply to boating or piloting aircraft.
In the United States the National Highway Traffic Safety Administration (NHTSA) estimates that 17,013 people died in 2003 in "alcohol-related" collisions, representing 40 percent of total traffic deaths in the US. Over 500,000 people were injured in alcohol-related accidents in the US in 2003. NHTSA defines fatal collisions as "alcohol-related" if they believe the driver, a passenger, or a nonoccupant of the vehicle (such as a pedestrian or pedalcyclist) had a BAC of 0.01 or greater. NHTSA defines nonfatal collisions as "alcohol-related" if the accident report indicates evidence of alcohol present. NHTSA specifically notes that "alcohol-related" does not necessarily mean a driver or nonoccupant was tested for alcohol and that the term does not indicate a collision or fatality was caused by the presence of alcohol.[1] On average, about 60 percent of the BAC values are missing or unknown. To analyze what they believe is the complete data, statisticians simulate BAC information.[2]
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[edit] Laws
All states in the U.S. designate a "per se" blood or breath alcohol level as the threshold point for an independent criminal offense. A second criminal offense of driving "under the influence" or "while impaired" is also usually charged in most states, with a presumption of guilt where the person's blood alcohol concentration (BAC) is .08 or greater (units of milligrams per deciliter, representing 8 g of alcohol in 100 deciliters of blood). Some states include a lesser charge — often known as driving while impaired — at a BAC of, for example, .05 or above but less than the legal limit for the more serious charge. Prior to wider emphasis on drinking and driving in the 1980s, standards of .10-.12 were in place. The legal limit for aircraft pilots and commercial drivers in the U.S. is set at 0.04. All states also observe a much stricter standard for drivers under the age of 21, commonly of .01-.02; these are often referred to as "Zero Tolerance" laws.
Unlike DUI cases that involve alcohol, there is no "per se" or legal limit that is employed for persons accused of driving under the influence of prescription medication or illicit drugs. Instead, the key inquiry focuses on whether the driver's faculties were impaired by the substance that was consumed. The detection and successful prosecution of drivers impaired by prescription medication or illegal drugs is therefore quite difficult. Similarly, although urinalysis toxicology screens can detect the presence of such substances in the driver's bloodstream, these analyses are unable to demonstrate that the substance was actually causing impairment at the time of driving. In response to these problems, several jurisdictions are currently considering legislation that would establish "zero tolerance" laws for those drivers arrested for DUI and found to have drugs or medication in their system. Additionally, breathalyzers have been developed for the purpose of administering roadside or laboratory tests that can detect the actual level of a controlled substance in an individual's body.
Many jurisdictions require more serious penalties (such as jail time, larger fines, longer DUI program, the installation of ignition interlock devices) in cases where the driver's BAC is over 0.20, or 0.15 in some places. These additional sanctions are an attempt to deter and punish the operation of a vehicle at extremely high BAC levels and the concomitant danger posed to the safety of persons and property by heavily impaired drivers. In many cases, the reason given for these additional sanctions is because an average person would have passed out from that much alcohol. To be able to drive at that level, a person has to have gotten drunk regularly for years, to increase his/her alcohol tolerance, and therefore is likely to have driven drunk repeatedly. However, since there is currently no standard test to measure alcohol tolerance, proponents of high-BAC additional penalties point to some studies that indicate that high-BAC offenders are more likely to be involved in a crash and more likely to recidivate. Critics of such laws point out that, due to the wide variation of alcohol tolerance, people with a high tolerance will suffer the additional penalties, even though they may be much less impaired than people with a low tolerance that were driving with a much lower BAC.
Some U.S. states also increase the penalties for drunk driving (even to the point of making it a felony) if certain other aggravating circumstances besides a very high BAC are present, such as if the drunk driver caused an accident requiring the hospitalization of another person lasting greater than a specified period of time (often 72 hours), in cases where an accident resulted in property damage exceeding a certain amount (often $500), or where the driver has prior (and relatively recent) convictions for drunk driving. In addition, most states observe administrative laws that further penalize people convicted of DUI, typically enforced by the department that issues driver's licenses, usually titled Department of Motor Vehicles (DMV), or Department of Licensing. Also, in many states, persons under 21 who purchase, or even attempt or conspire to purchase, alcohol can have their driving privileges suspended (if they already are licensed drivers) or delayed (if not) even if they were not caught actually driving while intoxicated. This belief that restricting alcohol availability and increasing sentences on the basis of damage done is contrary to all the evidence available from other jurisdictions. Australia and the UK have higher alcohol consumption rates, lower ages for alcohol consumption much lower sentencing regimes for DUI Manslaughter - and much lower incidences of DUI.
[edit] History of drunk driving laws
The first jurisdiction in the United States of America to adopt laws against drunk driving was New York in 1910, with California and others following. Early laws simply prohibited driving while intoxicated, with no specific definition of what level of inebriation qualified. The first generally-accepted legal limit for blood alcohol concentration (BAC) was 0.15 (in 1938, the American Medical Association created a "Committee to Study Problems of Motor Vehicle Accidents"; at the same time, the National Safety Council set up a "Committee on Tests for Intoxication". After some study, these two groups came up with their findings: a driver with 0.15 BAC or higher could be presumed to be intoxicated; those under 0.15 could not).
In the US, most of the laws and penalties were greatly enhanced starting in the late 1970s, and through the 1990s, largely due to pressure from groups like Mothers Against Drunk Driving (MADD) and Students Against Driving Drunk (SADD) and leaders like Candy Lightner. Most significantly:
1. The legal presumption of intoxication from blood alcohol concentration was reduced to 0.10; more recently, and with federal pressure, all states have further reduced the limit to 0.08%.
2. A second drunk driving offense was created and eventually adopted in all states: driving with a BAC of 0.08% or higher; this was typically charged in addition to the traditional offense of driving under the influence.
3. So-called zero tolerance laws were enacted which criminalized driving a vehicle with 0.01 or 0.02 BAC for drivers under 21.
4. Automatic license suspension laws were universally adopted which provided for the immediate confiscation and administrative suspension of the driver's license if the BAC was 0.08% or if the driver refused testing.
MADD and other organizations are also widely cited for getting the drinking age raised to 21 in those states where it had once been lower. Also during this era, enforcement of drunk driving laws became a priority for police for the first time, and constitutional impediments to such practices as sobriety checkpoints were removed.
[edit] Typical DUI investigation and arrest
Following are common procedures when a law enforcement officer has reason to suspect a driver is intoxicated.
[edit] Probable cause to stop
There are usually four situations in which the officer will come into contact with a driver:
- The driver has been involved in an automobile accident; the officer has responded to the scene and is conducting an investigation.
- The driver has been stopped at a sobriety checkpoint (also known as roadblocks).
- The police have received a report, possibly from an anonymous citizen, that a described car has been driving erratically. The officer should verify the erratic driving before pulling the driver over. In some cases, the driver will no longer be in the vehicle.
- The officer on patrol has observed erratic or otherwise suspicious driving. This is by far the most common reason for stopping a suspect.
The following list of DUI symptoms, from a publication issued by the National Highway Traffic Safety Administration (DOT HS-805-711),[3] is widely used in training officers to detect drunk drivers. After each symptom is a percentage figure which, according to NHTSA, indicates the chances that a driver is over the legal limit.
| Turning with wide radius | 65 |
| Straddling center or lane marker | 65 |
| Appearing to be drunk | 60 |
| Almost striking object or vehicle | 60 |
| Weaving | 60 |
| Driving on other than designated roadway | 55 |
| Swerving | 55 |
| Slow speed (more than 10mph below limit) | 50 |
| Stopping (without cause) in traffic lane | 50 |
| Drifting | 50 |
| Following too closely | 45 |
| Tires on center or land marker | 45 |
| Braking erratically | 45 |
| Driving into opposing or crossing traffic | 45 |
| Signalling inconsistent with driving actions | 40 |
| Stopping inappropriately (other than in lane) | 35 |
| Turning abruptly or illegally | 35 |
| Accelerating or decelerating rapidly | 30 |
| Headlights off | 30 |
If the officer observes enough to have a reasonable suspicion to legally justify a further detention and investigation, he will ask the driver to step out of the vehicle.
[edit] Probable cause to detain
The officer will typically approach the driver's window and ask some preliminary questions. The purpose is to detect the possible presence of such preliminary evidence as:
- an odor of alcohol on the driver's breath or in the car generally
- slurred speech in response to the questioning
- blood shot or reddish eyes
- flushed face
- difficulty in understanding and responding intelligently to question
- fumbling with his driver's license and registration
- the plain-view presence of containers of alcoholic beverages in the vehicle.
If the officer observes enough to have a reasonable suspicion to legally justify a further detention and investigation, he will ask the driver to step out of the vehicle.
[edit] Field sobriety tests
The officer will administer one or more field sobriety tests (FSTs). The most commonly administered FSTs include:
- walk-and-turn (heel-to-toe in a straight line).
- finger-to-nose (tip head back, eyes closed, touch the tip of nose with tip of index finger).
- modified-position-of-attention (feet together, head back, eyes closed for thirty seconds; also known as the Romberg test).
- one-leg-stand for thirty seconds.
- recite all or part of the alphabet.
- touch fingers of hand to thumb in both directions in rapid succession.
- horizontal gaze nystagmus (following an object with the eyes to determine characteristic pupil reaction)[1].
- count backwards from a number such as 30 or 100.
- pick up a coin from the ground without bending down.
- breathe into a "preliminary breath test" device.
Although most law enforcement agencies continue to use a variety of these FSTs, increasingly a 3-test battery of standardized field sobriety tests (SFSTs) is being adopted. These tests are recommended by the National Highway Traffic Safety Administration (NHTSA) after studies indicated other FSTs were relatively unreliable. The NHTSA-approved battery of tests consists of walk-and-turn, one-leg-stand and nystagmus. In some states, such as Ohio, only the standardized tests will be admitted into evidence — and only if administered and objectively scored as recommended by NHTSA.
FSTs are more effective at determining the level of impairment than they are at estimating the driver's blood alcohol concentration (BAC). However, studies question whether the tests increase the officer's ability to judge either. In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink and drive". The blood-alcohol concentration of each of the 21 DUI subjects was .00, unknown to the officers. The result: the officers gave their opinion that 46% of these innocent people were too drunk to be able drive. This study showed the possible inaccuracy of FSTs. Cole and Nowaczyk, "Field Sobriety Tests: Are they Designed for Failure?", 79 Perceptual and Motor Skills Journal 99 (1994).
An increasingly used field sobriety test involves having the suspect breathe into a small, handheld breath testing device. Called variously a PAS ("preliminary alcohol screening") or PBT ("preliminary breath test"), the units are small, inexpensive versions of their larger, more sophisticated instruments at the police stations, the EBTs ("evidentiary breath test"). Whereas the EBTs usually employ infrared spectroscopy, the PAS units use a relatively simple electrochemical (fuel cell) technology. Their purpose, along with other FSTs, is to assist the officer in determining probable cause for arrest. Although because of their relative inaccuracy they were never intended to be used in court for proving actual blood-alcohol concentration, some courts have begun to admit them as evidence of BAC.
[edit] Probable cause to arrest
If the officer has sufficient facts justifying a reasonable suspicion that the suspect has been driving under the influence of alcohol, he will make the arrest, handcuff the suspect and transport him to the police station. En route, the officer may advise him of his Miranda rights and his legal implied consent obligation to submit to an evidentiary chemical test of blood, breath or possibly urine.
[edit] Chemical test
At the police station, the arrestee will be offered a chemical test of breath, blood or, much less frequently, urine. Breath test results are usually available immediately; urine and blood samples are sent to a lab for later analysis to determine the BAC or possible presence of drugs.
If the arrestee refuses to submit to chemical testing, he will usually be booked for driving under the influence; there will be no evidence for filing the second charge of driving with .08% blood alcohol content. In some cases the arrestee may be charged with DUI even after passing a breathalyzer test if he or she refuses also to take subsequent urine or blood tests. However, the refusal will carry increased penalties on the driving under the influence charge (typically a longer license suspension and/or an increased jail sentence), and the act of refusing may be admissible in court as evidence of "consciousness of guilt". In some jurisdictions, refusing to take a breathalyzer test is an offense in itself. In an increasing number of jurisdictions, if the suspect refuses to take a chemical test the police will restrain the individual and forcefully withdraw blood; he may still be be punished for refusing. This is particularly common in situations involving an accident with injury or death. In some jurisdictions this may require obtaining a warrant from a judge.
While chemical tests are used to determine the driver's BAC, they do not determine the driver's level of impairment. However, state laws usually provide for a rebuttable legal presumption of intoxication at blood alcohol levels of .08 or higher (see blood alcohol test assumptions).
The accuracy of breath, blood and urine testing is a subject of some dispute, with various scientific studies indicating unreliable results.[4] In any case, tests can only determine the BAC at the time the test is taken, which can be higher or lower than when the vehicle was actually operated. Evidence of the BAC at time of driving is often presented in the form of retrograde extrapolation, a questionable process whereby earlier blood alcohol levels are estimated by applying a formula developed in 1932 known as the Widmark factor.[5]
[edit] Booking and charging
If it is determined after arrest that the person's blood alcohol concentration is not at or above the legal limit of .08, he will probably be released without any charges. He may, however, still be charged with driving under the influence of alcohol on the basis of driving symptoms, observed impairment, admissions and/or performance on the field sobriety tests. And if there is suspicion of drug usage, a blood or urine test is likely, or at least the testimony of a specially-trained officer called a Drug Recognition Expert (DRE). Assuming sufficient evidence of imparied driving from drugs, the arrestee may face charges of driving under the influence of drugs or the combined influence of alcohol and drugs.
Most of the time, the driver will either be kept in a holding cell (sometimes referred to as the "drunk tank") until he is deemed sober enough to be released on bail or on his "own recognizance" ("O.R."). A date to appear in court for an arraignment will be given to him. If he cannot make bail or is not granted O.R., he will be kept in jail to wait for the arraignment on remand.
[edit] Famous People Who are Known to Have Driven Drunk in the Past
- Halle Berry
- Tim Allen
- United States Senator Ted Kennedy
- Paris Hilton
- Michael Phelps
- Robert Downey Jr.
- Patrick J. Kennedy
- President of the United States, George W. Bush [6]
- Vice-President of the United States, Dick Cheney, Convicted twice of DUI in Wyoming
- Peg Lautenschlager
- Mel Gibson (Mel Gibson DUI incident)
- Gordon Campbell, Premier of British Columbia, Canada[7]
[edit] See also
- Driving under the influence (for issues that are not U.S.-specific)
- Carrollton bus disaster, about a 1988 bus accident in Kentucky caused by a drunk driver that resulted in 27 deaths
- Blood Alcohol Content
[edit] References
- ^ http://www-nrd.nhtsa.dot.gov/pdf/nrd-30/NCSA/TSFAnn/TSF2004.pdf
- ^ http://www-nrd.nhtsa.dot.gov/pdf/nrd-30/NCSA/Rpts/2002/809-403.pdf#search=%22Transitioning%20to%20Multiple%20Imputation%22
- ^ http://www.nhtsa.dot.gov/people/injury/alcohol/dwi/dwihtml/cues.htm
- ^ http://www.duicentral.com/drunk_driving/dui_breathalyzer_accuracy.html
- ^ http://www.duicenter.com/lawyers/widmark_factor.html
- ^ http://archives.cnn.com/2000/ALLPOLITICS/stories/11/02/bush.dui/
- ^ http://canadaonline.about.com/od/premiers/p/gordoncampbell.htm
- Taylor, L. Drunk Driving Defense. New York: Aspen Law and Business, 6th edition, 2006.
