Wednesday, 22 February 2017

Drunk drivers: What are the laws and procedures in dealing with them?                                             

Drunk driving is the act of operating or driving a motor vehicle while under the influence of alcohol  or drugs  to the degree that  mental  and  motor skills are "impaired". It is illegal in all jurisdictions within the United States though enforcement varies widely between and within states/territories, to drive a motor vehicle while impaired or with a breath or blood alcohol concentration of 0.08% or greater if over the age of 21.

The specific criminal offense is usually called driving under the influence (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. Vehicles can include farm machinery such as tractors and horse-drawn carriages. Such charges cannot be laid if the driver is driving one of these vehicles on private property. They can be charged if someone is injured or killed as a result of the actions of a drunk driver where the action took place on private property.  

In this his article, I am going to deal with the issue of drunk drivers killing other people as a direct result of the actions of the drunk drivers.

In the USA, the National Highway Traffic Safety Administration (NHTSA) estimated that 17,941 people died in 2006 in alcohol-related collisions, representing 40% of total traffic deaths in the USA, NHTSA defines fatal collisions as "alcohol-related" if they believe the driver, a passenger, or non-motorist (such as a pedestrian or pedal cyclist) had a blood alcohol content (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 non-occupant was tested for alcohol and that the term does not indicate a collision or fatality was caused by the presence of alcohol
The penalties for driving under the influence (DUI), driving while intoxicated (DWI) and operating while intoxicated (OWI) vary from state-to-state and jurisdiction to jurisdiction. It is not uncommon for the penalties to be different from county-to-county within any given state depending on the practices of the individual jurisdiction. Some jurisdictions require jail time and larger fines, even on a first offense. For instance, Ohio requires a mandatory 72-hour jail sentence for a first offense conviction; however, the jail time component is satisfied by attendance of the Ohio A.W.A.R.E. Program, which is a 72-hour alcohol-education program. Compared to many other countries, such as Sweden, penalties for drunk driving in the United States are considered less severe unless alcohol is involved in an incident causing injury or death of another, such DUI, DWI or OWI with Great Bodily Injury (GBI) or Vehicular Manslaughter.

The State of Washington used to permit those charged with a first offense DUI/DWI/OWI to complete a diversion program that resulted in the charges being dismissed upon the completion of a Diversion Program. In 1975, under the revised code of Washington or RCW Section 10.05, the Washington State Legislature established a deferred prosecution option for offenders arrested for driving under the influence of alcohol and/or impairing drugs (DUI). It was intended to encourage individuals to seek appropriate treatment and, under this option, defendants with a significant alcohol or drug dependence problem could petition a court to defer disposition of their charge until they have completed intensive substance dependence treatment and met other conditions required by the court. If the defendant successfully completed the terms of the program, the charge was dismissed; for those who failed, the deferred status was revoked and the defendant was prosecuted for the original DUI charge. (RCW 10.05.010 and 10.05.020) In 1992, the University of Washington Alcohol and Drug Abuse Institute evaluated DUI deferred prosecution and concluded the program reduced DUI recidivism. In 1998, the legislature modified the DUI statutes. Among other things, the length of deferred prosecution supervision was increased from two to five years and defendants were restricted to one deferred prosecution per lifetime.

Every jurisdiction in the USA imposes the completion of alcohol education programs, commonly known as DUI programs, subsequent to a DUI/DWI/OWI conviction. Additionally, some states impose an additional requirement that a person attend a Victim Impact Panel (VIP) administered by Mothers Against Drunk Driving (MADD), which was established in 1982. Both DUI classes and Victim Impact Panels are available in some states for first offense DUIs dependent on the judge's decision.

In 1967, Ohio began to issue special license plates to DUI offenders who are granted limited driving privileges such as work-related driving until a court can rule that they can have full privileges back. However, judges rarely enforced the plates, so in 2004, the plates became mandated by state law to all DUI offenders. Unlike Ohio's standard-issue plates, the DUI plates are yellow with red writing with no registration stickers or graphics. They are commonly referred to as "party plates"

Minnesota has a similar program, where the plates are white with either blue or black text. The plate number is a "W", followed by a letter and four numbers. These plates may be issued to drivers with at least 2 DUIs in a ten-year period. In Minnesota, DUI plates are referred to as "whiskey plates", the letter W being the first letter of the word whiskey.  

Some states, such as California, may impose 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 meant 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.

As of July 1, 2010, California implemented a pilot project for DUI sentencing. In four counties, Los Angeles, Sacramento, Tulare and Alameda, first offenders convicted of drunk driving are required to install an ignition interlock device in their car for a period of five months and second offenders for a period of one year.

In the United States, paying the DUI ticket, court costs, and attorney fees is just the start of a person's financial obligations after a DUI conviction. Additional costs of a DUI conviction will often involve the installation and maintenance fees of a vehicle Ignition Interlock Device, which serves the same function as a Breathalyzer to enable the vehicle to start. A person convicted of a driving under the influence charge, can also expect to pay higher insurance rates and premiums.

There are several situations in which the officer will come into contact with a driver, some examples are:

The officer on patrol has observed erratic, suspicious driving, or a series of traffic infractions indicating the possibility that the driver may be impaired. This is by far the most common reason for stopping a suspect.

A police officer has stopped a vehicle for a lesser traffic offense, notices the signs of intoxication, and begins the DUI investigation.

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 will typically approach the driver's window and ask some preliminary questions. During this phase of the stop the officer will note if they detect any of the following indicators of intoxication.

·        Odor of an alcoholic beverage on the driver's breath or in the car generally
·        Slurred speech in response to the questioning
·        Watery, blood shot, or reddish eyes
·        Flushed face
·        Droopy eyelids
·        Difficulty in understanding and responding intelligently to question
·        Fumbling with his or her driver's license and registration
·        The plain-view presence of containers of alcoholic beverages in the vehicle.
·        Admission of consumption of alcoholic beverage

If the officer observes enough to have a reasonable suspicion to legally justify a further detention and investigation, they will ask the driver to step out of the vehicle.

One of the most controversial aspects of a DUI stop is the field sobriety test (FSTs). The National Highway Traffic Safety Administration (NHTSA) has developed a model system for managing Standardized Field Sobriety Test (SFST) training. They have published numerous training manuals associated with FSTs. As a result of the NHTSA studies, the walk-and-turn test was determined to be 68% accurate, and the one-leg stand test is only 65% accurate when administered to people within the study parameters. The tests were not validated for people with medical conditions, injuries, 65 years or older and 50 pounds or greater overweight. The officer will administer one or more field sobriety tests. FSTs are considered "divided attention tests" that test the suspect's ability to perform the type of mental and physical multitasking that is required to operate an automobile. However, these tests can be problematic for people with non-obvious disabilities affecting proprioception, such as Ehlers-Danlos syndrome.

The three validated tests by NHTSA are:
·        The Horizontal Gaze Nystagmus Test, which involves following an object with the eyes (such as a pen) to determine characteristic eye movement reaction.
·        The Walk-and-Turn Test (heel-to-toe in a straight line). This test is designed to measure a person's ability to follow directions and remember a series of steps while dividing attention between physical and mental tasks.
·        The One-Leg-Stand Test
Alternative tests, which have not been scientifically validated, include:
·        Romberg test, or the Modified-Position-of-Attention Test, (feet together, head back, eyes closed for thirty seconds).
·        The Finger-to-Nose Test (tip head back, eyes closed, touch the tip of nose with tip of index finger).
·        The Alphabet Test (recite all or part of the alphabet).
·        The Finger Count Test (touch each finger of hand to thumb counting with each touch (1, 2, 3, 4, 4, 3, 2, 1)).
·        The Counting Test (counting backwards from a number ending in a number other than 5 or 0 and stopping at a number ending other than 5 or 0. The series of numbers should be more than 15).
·        The Preliminary Alcohol Screening Test, PAS Test or PBT, (breathe into a "portable or preliminary breath tester", PAS Test or PBT).

Although most law enforcement agencies continue to use a variety of these FSTs, most use the 3-test battery of validated field sobriety tests, referred to as the Standardized Field Sobriety Test (SFSTs). The NHTSA-approved battery of tests consists of the Horizontal Gaze Nystagmus Test, or HGN Test; the Walk-and-Turn Test, or the WAT Test, and the One-Leg-Stand Test, or the OLS Test.In some states, such as Ohio, only the standardized tests will be admitted into evidence, provided they were administered and objectively scored "in substantial compliance" with NHTSA standards.

An increasingly used field sobriety test involves having the suspect breathe into a small, handheld breath testing device. These are often referred to as PAS Tests, or "Preliminary Alcohol Screening" Tests", or a PBT, "Preliminary Breath Test" and precede the actual arrest and subsequent requirement to submit to an evidentiary chemical test of the suspect's breath or blood. These breath testing devices used are smaller, inexpensive versions of the larger, more sophisticated instruments at the police stations, commonly known as an Evidentiary Breath Test using an EBT device, or Evidentiary Breath Test device. However, an increasing number of jurisdictions began using Portable Evidentiary Breath Test devices, or PEBT devices, that are more sophisticated versions of the smaller, inexpensive versions of the larger, larger instruments at the police stations. However, where the larger EBTs usually employ infrared spectroscopy, the PEBT and PAS devices use a relatively simple electrochemical (fuel cell) technology. When used for purposes of a Preliminary Alcohol Screening Test, or PAS Test, their purpose, along with the other FSTs, is to assist the officer in determining whether he/she has probable cause for arrest.

In Canada, if the driver refuses to blow into the handheld breath testing device. he will be given the same punishment as if he had blown in the regular breathalyzer test and it was determined that he was impaired. 

The walk-and-turn test is composed of two phases: the Instruction Phase and Walking Phase. During the test, the individual is directed to take nine steps along a straight line. The individual is supposed to walk heel to toe, and while looking down at a real or imaginary line, count the steps out loud. The test subject's arms must remain at their side. Reaching the ending point, the individual must turn around using a series of small steps, and return to the starting point. The proper instruction, according to the NHTSA Guidelines, is as follows:

1.                  Put your left foot on the line, then place your right foot on the line ahead of your left, with the heel of your right foot against the toe of your left foot.
2.                 Do not start until I tell you to do so.
3.                 Do you understand? (must receive affirmative response)
4.              When I tell you to begin, take 9 heel-to-toe steps on the line (demonstrate) and take 9 heel-to-toe steps back down the line.
5.               When you turn on the ninth step, keep your front foot on the line and turn taking several small steps with the other foot (demonstrate) and take 9 heel-to-toe steps back down the line.
6.                 Ensure you look at your feet, count each step out loud, keep your arms at your side, ensure you touch heel-to-toe and do not stop until you have completed the test.
7.                 Do you understand the instructions?
8.                You may begin.
9.                 If the suspect does not understand some part of the instructions, only the part in which the suspect does not understand should be repeated

There are eight cues or clues that a police officer is looking for on the Walk & Turn Test that will determine in his mid that the driver is impaired. They are as follows:
1.    Can’t keep balance during instructions
2.   Starts too soon
3.   Stops walking
4.   Misses heel-to-toe
5.   Steps off line
6.   Uses arms for balance
7.   Improper turn
8.  Incorrect number of steps

There are four cues or clues that a police officer is looking for on the One Leg Stand Test, they are as follows
1.    Sways while balancing
2.   Uses arms to balance
3.   Hopping
4.   Puts foot down

If the officer is convinced that the driver is impaired, he will arrest the driver and take him to the police station where the driver will be given a breathalyzer test.

Many years ago, I was invited to give a speech at a crime conference in Montreal, Quebec. In my speech, I explained to the conferees that many people who are arrested and taken to a police station don’t know lawyers who can give them advice, especially at night. I recommended that Ontario legal aid create a 24-hour duty counsel who will answer all the questions that a suspect in the station will ask. Three months later, my proposal came into effect all over Canada when Ontario legal Aid in all the provinces provided 24-hour duty counsel. The suspect will be given the phone number to call and while out of earshot of the officers, the suspect will be given the advice he or she seeks.   

Unfortunate, there is a time limit. If the suspect can’t get a hold of the duty counsel within a certain time, he or she has to submit to the breathalyzer test. If he or she refuses to blow in the machine, that person will be convicted at trial of driving a vehicle while his or her ability to do so was impaired.

Much or what was described in this article also applies in Canada.

My next article is titled What is the appropriate sentence for drunk drivers who kill innocent victims?

No comments: