Drunk driving (United States)

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 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.

According to the National Highway Traffic Safety Administration (NHTSA), 17,013 people died in 2003 in "alcohol-related" collisions, representing 40 percent of total traffic deaths in the United States. Over 500,000 people were injured in alcohol-related accidents in the US in 2003. "Alcohol-related" is defined to include any driver, passenger or pedestrian involved in a fatal crash who has any trace of alcohol or suspicion of alcohol usage. According to the NHTSA, no other country uses these criteria in their statistical computations.

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 (i.e., 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 juristictions. 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.

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. These organizations — MADD in particular — 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.

In some areas of the country, including New York City, it's part of police procedure to impound cars of arrested drunk drivers. The offenders forfeit the cars permanently if they are convicted.

Sample timeline of a typical DUI arrest

The following is what can happen when a law enforcement officer has a reason to suspect a driver is intoxicated. Some possible reasons are erratic driving, poor coordination, and/or the presence of the smell of alcohol.

"The Stop"

First the officer must approach the suspect. If the suspect is in a moving vehicle, the officer has to stop the vehicle. Other situations may require other methods of approaching the suspect. The officer must have reasonable suspicion to "stop" the suspect; otherwise the officer may violate the suspect's right under the Fourth Amendment to the United States Constitution to be free from unreasonable search and seizure.

Field sobriety test

The officer will administer one or more field sobriety tests (FSTs). Some common FSTs include having the driver:

walk in a straight line, heel-to-toe (walk-and-turn).
tip head back with eyes closed and touch the tip of the nose with the index finger (Romberg test).
stand on one foot for thirty seconds.
recite all or part of the alphabet.
touch fingers of one hand to thumb in both directions in rapid succession.
horizontal gaze nystagmus.
breathe into a "preliminary alcohol screening" device.

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).

A private laboratory under contract with the (US) National Highway Traffic Safety Administration has determined that three FSTs are statistically reliable in detecting impaired drivers if administered correctly; all other field sobriety tests were found to be unreliable, although they are still widely used by law enforcement. These three "Standardized" Field Sobriety Tests (SFSTs) are the "Walk and Turn", the "One-Leg Stand", and the "Horizontal Gaze" (in which a law enforcement officer observes three distinct types of movement of a person's eyes when tracking a stimulus across their field of vision). The reliability of the SFSTs has also been questioned.

A more recent but widely 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 states have begun to admit them as evidence of BAC.

Chemical test

If arrested, the driver is brought to the police station, and given one or more chemical tests: breath, blood or, much less frequently, urine. Breath test results are usually available immediately and are sometimes given before the actual arrest takes place; urine and blood samples are sent to a lab to determine the BAC. In some jurisdictions, refusing to take a breathalyzer test is an offense in itself, and may carry a rebuttable "consciousness of guilt" under the law.

If a person is involved in a motor vehicle accident involving a fatality or serious physical injury, and is suspected to be intoxicated, some jurisdictions permit the police to forcibly take a sample of the driver's blood without their consent. This is often done after a warrant is obtained from a judge, although it is increasingly common to force a "draw" without a warrant under the "exigent circumstances" doctrine.

While chemical tests are used to determine the driver's BAC, they are unable to determine the driver's level of impairment. State laws usually provide for a rebuttable legal presumption of intoxication at blood alcohol levels of .08 or higher. However, their accuracy is a subject of some dispute (see blood alcohol test assumptions). 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 process whereby an expert witness estimates earlier levels based upon average rates of alcohol absorption and elimination.

Next step

If it is determined after arrest that the person's blood alcohol concentration is not 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 assuming some evidence of drug usage, he may face charges of driving under the influence of drugs or the combined influence of alcohol and drugs -- in which event, a blood or urine test is likely, or at least the testimony of a specially-trained officer called a Drug Recognition Expert (DRE).

Most of the time, the driver will either be kept in a holding cell (sometimes referred to as the "drunk tank") until they are deemed sober enough to be released on bail or on their "own recognizance", or kept in jail to wait for their first court hearing, called an arraignment.

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