Drunk driving in the United States
"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 and horse-drawn carriages.
In construing the terms DUI, DWI, OWI and OVI, one may notice that some states therefore make it illegal to drive a motor vehicle while under the influence or driving while intoxicated while others indicate that it is illegal to operate a motor vehicle. There is a split of authority across the country regarding this issue. Some states permit enforcement of DUI, DWI and OWI/OVI statutes based on "operation and control" of a vehicle, while others require actual "driving". "The distinction between these terms is material, for it is generally held that the word 'drive,' as used in statutes of this kind, usually denotes movement of the vehicle in some direction, whereas the word 'operate' has a broader meaning so as to include not only the motion of the vehicle, but also acts which engage the machinery of the vehicle that, alone or in sequence, will set in motion the motive power of the vehicle." (State v. Graves (1977) 269 S.C. 356 [237 S.E.2d 584, 586-588, 586. fn. 8]
In California, for instance, in Mercer v. DMV (1991) 53 Cal.3d 753, the California State Supreme Court contrasted the term “drive,” commonly understood to require volitional movement of the vehicle, with the term “driver,” defined in California Vehicle Code § 305 as one who is either driving or in actual physical control. The court pointed out that the phrase “actual physical control” does not appear anywhere in the drunk driving offense statutes. Further, the court noted that since “driver” is defined as one who drives or is in actual physical control, the two terms (drive vs. actual physical control) must have different meanings. Construing these penal statutes strictly, rather than broadly, as is required by Keeler v. Superior Court of Amador County (1970) 2 Cal.3d 619, 631, the court held that mere actual physical control is not enough to constitute driving. Therefore, the term: “drive”, at least for purposes of the drunk driving statutes, requires volitional movement of the vehicle. In coming to this conclusion, the California Supreme Court held that in everyday usage the phrase, "to drive a vehicle," is understood as requiring evidence of volitional movement of a vehicle. Numerous dictionary definitions-including Webster's Third New International Dictionary (1981), cited by the Court of Appeal in the case that led to the California Supreme Court's review of this case, support a definition of "drive" that includes movement. (See, e.g., Id., at p. 692.) fn. 5. The Mercer Court held that it believed that these definitions are consistent with the usual and ordinary understanding of that term, and suggest the sense in which the word was intended by the Legislature in the present context.
In the United States the National Highway Traffic Safety Administration (NHTSA) estimates that 17,941 people died in 2006 in alcohol-related collisions, representing 40% of total traffic deaths in the US. NHTSA states 275,000 were injured in alcohol-related accidents in 2003. The Bureau of Justice Statistics estimated that in 1996 local law enforcement agencies made 1,467,300 arrests nationwide for driving under the influence of alcohol, 1 out of every 10 arrests for all crimes in the U.S., compared to 1.9 million such arrests during the peak year in 1983, accounting for 1 out of every 80 licensed drivers in the U.S. In 2012, 29.1 million people admitted to driving under the influence of alcohol.
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. On average, about 60% of the BAC values are missing or unknown. To analyze what they believe is the complete data, statisticians simulate BAC information. Drivers with a BAC of 0.10% are 6 to 12 times more likely to get into a fatal crash or injury than drivers with no alcohol.
- 1 Laws and regulations
- 1.1 Driving Under the influence - DUI/DWI
- 1.2 Flying Under the Influence (FUI) and Boating Under the Influence (BUI)
- 1.3 Physician Reporting
- 1.4 Driving While Impaired Court - DWI Court & Driving Under the Influence Court - DUI Court
- 1.5 Criminal Penalties
- 1.6 Administrative and Civil Penalties
- 2 Cost of a DUI
- 3 History of drunken driving laws
- 4 Typical DUI Investigation and Arrest
- 4.1 Reasonable Suspicion to Stop & Detain
- 4.2 Investigation
- 4.3 Field Sobriety Tests
- 4.4 Standardized Field Sobriety Tests
- 4.4.1 The Horizontal Gaze Nystagmus Test
- 4.4.2 The Walk-and-Turn Test (WAT)
- 4.4.3 Field Sobriety Tests Criticisms
- 4.5 Probable Cause to Arrest
- 4.6 Chemical Test
- 4.7 Booking & Charging
- 5 Interventions
- 6 International Comparisons
- 7 See also
- 8 References
- 9 Further reading
Laws and regulations
Driving Under the influence - DUI/DWI
For the most part, DUI or DWI are synonymous terms that represent the criminal offense of operating (or in some jurisdictions merely being in physical control of) a motor vehicle while being under the influence of alcohol or drugs or a combination of both. 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 can therefore be difficult. 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.
Every state in the U.S. designates a "per se" blood or breath alcohol level as the threshold point for an independent criminal offense. This is often referred to as the "legal limit". It is a permissive presumption of guilt where the person's BAC is 0.08% or greater (units of milligrams per deciliter, representing 8 g of alcohol in 10 liters of blood). Some states (e.g., Colorado) include a lesser charge, sometimes referred to as "driving while ability impaired" that may apply to individuals with a 0.05% or above, but less than the 0.08% per se limit for the more serious charge.
Every state has a "catch-all" provision designed to cover those circumstances where the person is below 0.08%, but the person still appears impaired by definition of law. These types of "catch-all" statutes cover situations involving a person under the influence of drugs or under the combined influence of alcohol and drugs. With the advent of the legalization of marijuana, these catch-all provisions cover those prosecutions pursuing those charged with driving under the influence of drugs or even drugs and alcohol.
In California, this "catch-all" provision was previously found in California Vehicle Code Section 23152(a); however new statutes that were made effective on January 1, 2014, two new sections were created to make sections specifically addressing those charged with driving under the influence of drugs, (which includes prescription medications if it can be shown that those medications impaired the driver), and driving under the influence of alcohol and drugs.
- CVC 23152(a): It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle
- CVC 23152(b): It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
- CVC 23152(e): It is unlawful for a person who is under the influence of any drug to drive a vehicle
- CVC 23152(f): It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.
Wisconsin regards first offense drunk driving as a municipal offense, and New Jersey treats all drunk driving cases without serious injury or death as traffic violations. The amount of alcohol intake to reach a BAC of 0.08% may vary with the individual's body composition and state of health. Prior to increased emphasis on drinking and driving in the 1980s, standards of 0.10%-0.15% were in place.
After the passage of federal legislation, the legal limit for commercial drivers is now set at 0.04%. The Federal Motor Carrier Safety Administration (FMCSA) regulation prohibits those who hold a commercial driver's license from driving with an alcohol concentration of 0.04 or greater. A commercial driver with an alcohol concentration of 0.02 or greater, but less than 0.04, must be removed from duty for 24 hours.
Arizona has a 0.08% BAC limit for standard DUI, but drivers can also face more severe DUI charges like an Extreme DUI (§ 28-1382(A)(1)) for having a BAC over 0.15% or Super Extreme DUI (§ 28-1382(A)(2)) for a BAC over 0.20%.
California, like every other state, has a "per se" BAC limit of 0.08% pursuant to California Vehicle Code Section 23152(b); and based on the aforementioned federal legislation, a lower limit of 0.04% for drivers holding commercial drivers licenses (CDL). California also has a limit of 0.01% for drivers who are under 21 or on probation for previous DUI offenses pursuant to California Vehicle Code Sections 23136 and 23140. California also makes it illegal for persons who are on probation for a DUI conviction to drive with a blood or breath alcohol concentration of 0.01% or greater pursuant to Vehicle Code Section 23154. While the existence of a BAC of 0.01% or greater may not always result in prosecution for driving under the influence, it will expose such drivers to a one or two-year suspension through an administrative action by the California Department of Motor Vehicles. If that same person has a BAC of 0.08% or greater, it will prompt what is referred to as a "dual action", meaning a suspension for driving with a BAC of 0.08% or greater and a suspension for driving with a BAC of 0.01% or greater while on DUI Probation.
Nevada has an implied consent law, an agreement every motor vehicle license recipient must accept, that makes breath or blood testing mandatory if an officer has reasonable suspicion of impairment. Refusal is grounds for arrest and law enforcement may use reasonable force to obtain blood samples
North Carolina has a general 0.08% BAC limit, a lower limit of 0.04% for drivers holding commercial drivers licenses (CDL) while operating a commercial vehicle. Additionally, it is illegal for anyone under the age of twenty-one (21) to possess or consume alcohol.
Every state has enhanced penalties for refusing to submit to an Implied Consent Test pursuant to the State's Implied Consent Laws. In California, refusing to submit to a test of one's breath or blood upon being arrested for driving under the influence carries an additional punishment of a one-year license suspension pursuant to California Vehicle Code Section 13558(c)(1).
Flying Under the Influence (FUI) and Boating Under the Influence (BUI)
Federal Aviation Regulation 91.17 (14 C.F.R. 91.17) prohibits pilots from flying aircraft with an alcohol level of 0.04% or more, or within eight hours of consuming alcohol, or while under the impairing influence of any drug. The same prohibition applies to any other crew members on duty aboard the aircraft (flight attendants, etc.). Some airlines impose additional restrictions, and many pilots also impose stricter standards upon themselves. Commercial pilots found to be in violation of regulations are typically fired or resign voluntarily, and they may lose their pilot certificates and be subject to criminal prosecution under Federal or State laws, effectively ending their careers.
Similar laws apply to other activities involving transportation; Michigan prohibits intoxicated bicycling, horseback riding, buggy driving, use of motorized farm implements, or boating, the latter whether a pilot or passenger, with much the same threshold of intoxication. In the case of boating, the laws extend to include kayaks, canoes, sailboats—any floatation device that needs to be steered in water. Different states have different laws and classifications on the level of transgression attached to a citation for boating under the influence.
Alcohol use was the number one contributing factor in U.S. recreational boating deaths between 2003 and 2012, accounting for 15 percent of the fatalities in 2003, and 17 percent in 2012. A Canadian study published in 2011 examined 18 years of data on recreational boating, and concluded that a "true figure" of alcohol-related deaths in that country "may lie between 46% and 56%".:15
Six states require physicians to report patients who drive while impaired. Another 25 states permit physicians to violate doctor-patient confidentiality to report impaired drivers, if they so choose. The American Medical Association endorsed physician reporting in 1999, but deferred to the states on whether such notification should be mandatory or permissive. Medical bioethicist Jacob Appel of New York University says physician reporting may deter some patients from seeking care, writing "Reporting may remove some dangerous drivers from the roads, but if in doing so it actually creates other dangerous drivers, by scaring them away from treatment, then society has sacrificed confidentiality for no tangible return in lives saved."
Driving While Impaired Court - DWI Court & Driving Under the Influence Court - DUI Court
These innovative courts use substance abuse intervention with repeat offenders who plead guilty to driving while intoxicated. Those accepted into the diversionary program are required to abstain from alcohol. Some are required to wear a device that monitors and records any levels of alcohol detected in their bloodstreams.
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.
Administrative and Civil Penalties
The federal Assimilative Crimes Act, which makes state law applicable on lands reserved or acquired by the Federal government when the act or omission is not made punishable by an enactment of Congress, recognizes collateral actions related to DUI convictions as punishments. According to 18 U.S.C. § 13:
… that which may or shall be imposed through judicial or administrative action under the law of a State, territory, possession, or district, for a conviction for operating a motor vehicle under the influence of a drug or alcohol, shall be considered to be a punishment provided by that law …
SR-22 - Proof of Financial Responsibility
An SR-22 is an addendum to an insurance policy. It is an administrative form that attests to an insurance company's coverage, or the posting of a personal public bond in the amount of the state's minimum liability coverage for the licensed driver or vehicle registration. The SR in SR-22 stands for Safety Responsibility, and it is needed to reinstate a suspended driver's license after a DUI conviction in 49 states and the District of Columbia. It is submitted to the State's DMV by an auto insurance company to serve as proof that a driver has the minimum liability insurance that the states requires. They are essentially an agreement between a driver's insurance company and the respective State's DMV that requires the driver's insurance company to notify the respective State's DMV that the driver's insurance has either been terminated or lapsed; thus instituting a suspension of the driver's driving privileges until proof of insurance is re-filed with the State's DMV.
While SR-22s are typically filed with the respective State's DMV, some States require the driver to carry proof of the SR-22 or to carry it in the registered vehicle, (particularly if the driver has been cited for coverage lapses or other administrative infractions). SR-22s may attest coverage for a vehicle regardless of operator (owner liability coverage), or cover a specific person regardless of the specific vehicle operated (operator liability coverage).
As stated, the form is required in 49 states and the US District of Columbia in order to register a vehicle for usage on public roads. It is also required to redeem a license which has been suspended due to coverage lapse in these required states. These states also, generally, require that the issuing insurance company provide the relevant state's DMV with timely updates as to the status of such coverage. If the policy with the SR22 cancels, a form called an SR26 is issued and sent to the state DMV. Upon notice that there has been a lapse in coverage, the state will suspend the driver's license again. Another SR-22 filing will need to be submitted to regain driving privileges.
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 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 (which as of 2008 have a picture of the Ohio country side), 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", whiskey being the name of the letter W in the NATO phonetic alphabet.
Ignition Interlock Devices - IID Devices
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. Previously, this requirement was only required for third offenders and permitted for second offenders, and then for a three-year period. The California DMV has written guidelines to clear up some ambiguities in the law. Costs associated with ignition interlock devices include $50 – $200 for installation and as much as $100 per month in fees thereafter.
Vehicle Impoundment and Forfeiture
Cost of a DUI
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. In addition, DUI records prevent entry into Canada without proper documentation.
History of drunken driving laws
New Jersey enacted the first law that specifically criminalized driving an automobile while intoxicated, in 1906. The New Jersey statute provided that "[n]o intoxicated person shall drive a motor vehicle." Violation of this provision was punishable by a fine of up to $500, or a term of up to 60 days in county jail.
Early laws, such as that enacted in New Jersey, required proof of a state of intoxication with no specific definition of what level of inebriation qualified. The first generally accepted legal BAC limit was 0.15%. New York, for example, which had enacted a prohibition on driving while intoxicated in 1910, amended this law in 1941 to provide that it would constitute prima facie evidence of intoxication when an arrested person was found to have a BAC of .15 percent or higher, as ascertained through a test administered within two hours of arrest.
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".
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 Destructive Decisions (SADD) and leaders like Candy Lightner. Significantly, zero tolerance laws were enacted which criminalized driving a vehicle with 0.01% or 0.02% BAC for drivers under 21. This is true even in Puerto Rico, despite maintaining a legal drinking age of 18.
On May 14, 2013, the National Transportation Safety Board recommended that all 50 states lower the benchmark for determining when a driver is legally drunk from 0.08 blood-alcohol content to 0.05. The idea is part of an initiative to eliminate drunk driving, which accounts for about a third of all road deaths. In light of this push by the NTSB, and in addition to numerous media reports, many bloggers/authors have posted content addressing the Debate Surrounding Lowering the Legal Limit from 0.08% to 0.05%.
The NHTSA estimates that 17,941 people died in 2006 in alcohol-related collisions, representing 40% of total traffic deaths in the US. Over the decade 2001-2010, this rate showed only a 3% variation, and no trend. NHTSA states 275,000 were injured in alcohol-related accidents in 2003. The Bureau of Justice Statistics estimated that in 1996 local law enforcement agencies made 1,467,300 arrests nationwide for driving under the influence of alcohol, 1 out of every 10 arrests for all crimes in the U.S., compared to 1.9 million such arrests during the peak year in 1983, accounting for 1 out of every 80 licensed drivers in the U.S. This represented a 220% increase in DUI arrests from 1970 to 1986, while the number of licensed drivers increased by just 42% in the same period. The arrest rate for alcohol-related offenses among American Indians was more than double that for the total population during 1996, and almost 4 in 10 American Indians held in local jails had been charged with a public order offense, most commonly driving while intoxicated. In 1997 an estimated 513,200 DUI offenders were under correctional supervision, down from 593,000 in 1990 and up from 270,100 in 1986. Recent analysis have shown cities in which ride sharing services operate cause DUI arrests to fall by 10%. 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 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. On average, about 60% of the BAC values are missing or unknown. To analyze what they believe is the complete data, statisticians simulate BAC information. Drivers with a BAC of 0.10% are 6 to 12 times more likely to get into a fatal crash or injury than drivers with no alcohol.
Typical DUI Investigation and Arrest
Following are common procedures when a law enforcement officer has reason to suspect a driver is intoxicated.
Reasonable Suspicion to Stop & Detain
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 following list of DUI symptoms, from a publication issued by the National Highway Traffic Safety Administration (DOT HS-805-711), is widely used in training officers to detect drunk drivers. After each symptom is a percentage figure which, according to NHTSA, indicates the statistical chances through research, that a driver is over the legal limit.
|Turning with wide radius||over 50%|
|Straddling center or lane marker||65%|
|Appearing to be drunk||60%|
|Almost striking object or vehicle||60%|
|Driving on other than designated roadway||55%|
|Slow speed (more than 10 mph below limit)||50%|
|Stopping (without cause) in traffic lane||50%|
|Following too closely||45%|
|Tires on center or land marker||45%|
|Driving into opposing or crossing traffic||45%|
|Signaling inconsistent with driving actions||40%|
|Stopping inappropriately (other than in lane)||35%|
|Turning abruptly or illegally||35%|
|Accelerating or decelerating rapidly||30%|
If the officer observes enough evidence to have a "Reasonable Suspicion" to legally justify a further detention and investigation, they will ask the driver to step out of the vehicle.
Reasonable suspicion requires less evidence than "Probable Cause", but more than a mere hunch. A rule of thumb is that reasonable suspicion requires 25% proof, and probable cause requires more than 50% statistical chance. Therefore, if there is probable cause for arrest for DUI/DWIOWI, as suggested by the research and examples used above, then there is reasonable suspicion to stop a driver.
According to the National Highway Traffic Safety Administration, police officers should conduct DUI Investigations according to a specific protocol called phases. According to the NHTSA training, DUI Investigations are categorized by these phases:
- Phase 1 - “Vehicle in Motion”
- Phase 2 - "Personal Contact"
- Phase 3 - "Pre-Arrest Screening"
The Vehicle in Motion Phase deals with the law enforcement officers observations of the suspect's driving maneuvers. The Personal Contact Phase is where the officer actually comes into contact with the DUI suspect. The Pre-Arrest Screening Phase is portion of the DUI Investigation that encompasses the Pre-Field Sobriety Test Questioning and the Field Sobriety Testing, including a Preliminary Alcohol Screening Test where applicabrrest evidentiary chemical test despite that it occurs subsequent to a DUI arrest, not prior to a DUI arrest.
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.
Field Sobriety Tests
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).
Standardized Field Sobriety Tests
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 (ORC 4511.19(D)(4)(b)).
According to NHTSA, these tests were not designed to measure impairment, but rather to give a probability that a driver is at or above a 0.08% BAC. However, studies have shown that there are reasons to doubt the tests' usefulness in helping an officer to make such a determination. In 1991, Dr. Spurgeon Cole of Clemson University conducted a study of the accuracy of FSTs. His staff videotaped people 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" (sic). The blood-alcohol concentration of each of the 21 DUI subjects was 0.00, unknown to the officers. The result: the officers gave their opinion that 46% of these innocent people were too drunk to be able to drive. This study showed the possible inaccuracy of FSTs.
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 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.
There were three tests chosen to constitute the "Standardized Field Sobriety Tests", which are: (1) the Horizontal Gaze Nystagmus Test; (2) the Walk & Turn Test; and (3) the One Leg Stand Test.
The Horizontal Gaze Nystagmus Test
The Horizontal Gaze Nystagmus Test, or HGN Test, is administered by the police officer checking the test subject's eyes.
Horizontal Gaze Nystagmus Instructions (HGN)
- I am going to check your eyes. (Please remove your glasses)
- Keep your head still and follow the stimulus with your eyes only.
- Do not move your head.
- Do you understand the instructions?
Horizontal Gaze Nystagmus Evaluation
There are six cues or clues that a police officer is looking for on the Horizontal Gaze Nystagmus Test, they are as follows:
- Lack of smooth pursuit
- Distinct and sustained nystagmus and maximum deviation
- Angle of onset prior to 45 degrees
Total Cues: 6 Cues - Decision Point: 4/6 Cues
While the original research indicated that 6 out of 6 cues meant that a person was more likely above 0.08% at the time of the test, subsequent research conducted by the NHTSA has indicated that a “Hit” occurred when the number of reported signs for a given BAC fell within the range: > a 0.06% at 4 - 6 cues or clues; a .05% – .059% at 2 - 4 cues or clues; a 0.03% – 0.049% at 0 - 4 cues or clues and a < 0.03% at 0 – 2 cues or clues. "The Robustness of the Horizontal Gaze Nystagmus Study" (September, 2007)
The Walk-and-Turn Test (WAT)
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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:
Walk and Turn Test Instructions (WAT)
- 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.
- Do not start until I tell you to do so.
- Do you understand? (must receive affirmative response)
- 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.
- 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.
- 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.
- Do you understand the instructions?
- You may begin.
- If the suspect does not understand some part of the instructions, only the part in which the suspect does not understand should be repeated
Walk and Turn Test Evaluation
There are eight cues or clues that a police officer is looking for on the Walk & Turn Test, they are as follows:
- Can’t keep balance during instructions
- Starts too soon
- Stops walking
- Misses heel-to-toe
- Steps off line
- Uses arms for balance
- Improper turn
- Incorrect number of steps
Total Cues: 8 Cues – Decision Point: 2/8 Cues
The One Leg Stand Test (OLS)
The One Leg Stand Test is composed of two stages: the Instruction Phase and Balancing Phase. The proper instruction, according to the NHTSA Guidelines, is as follows:
- Stand with your feet together and your arms at your side (demonstrate)
- Maintain position until told otherwise.
- When I tell you to, I want you to raise one leg, either one, approximately 6 inches off the ground, foot pointed out, both legs straight and look at the elevated foot. Count out loud in the following manner: 1001, 1002, 1003, 1004 and so on until told to stop
- Do you understand the instructions?
- You may begin the test.
One Leg Stand Test Evaluation
There are four cues or clues that a police officer is looking for on the One Leg Stand Test, they are as follows
- Sways while balancing
- Uses arms to balance
- Puts foot down
Total Cues: 4 Cues – Decision Point: 2/4 Cues
Field Sobriety Tests Criticisms
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Critics of standardized field sobriety tests often question the statistical evidence behind them, and the ability of the officers to administer the tests and actually judge for impairments related to alcohol. According to Barone, one study involved completely sober individuals who were asked to perform the standardized field sobriety tests, and their performances were videotaped. “After viewing the 21 videos of sober individuals taking the standardized field tests, the police officers’ believed that forty-six percent of the individuals had ‘too much to drink’”. It should not be out of the question for the standardized field sobriety tests to be re-examined for reliability and validity. A standardized test that claims to have scientific support should be able to be repeated. Along with that, the standardized field sobriety tests do not have a specific standard for grading, and it is left up to the discretion of the officer to determine whether what he/she see observes is actually a cue sufficient to count against the test subject. To err is human. The NHTSA’s 1977 study had an error rate of 47 percent, and the 1981 study had an error rate of 32 percent, which is considered unusually high for a scientific study.
One of the main criticisms of field sobriety tests is that the judgment is left up to the discretion of the police officer. An officer may have some bias towards a suspect and judge the test more critically than necessary. Additionally, it is almost impossible to tell whether or not a police officer used proper procedures for administering the field sobriety test when a case is brought to court. The original research conducted by the NHTSA is often disputed because of the manner in which they were conducted and the conclusions that were reported. One author comments that “The reports for all three studies issued by NHTSA are lacking much of the material and analysis expected in a scientific paper, and none have been published in peer-reviewed journals” (Rubenzer 2011).
Walk & Turn Test Criticisms
One of the main problems with the walk-and-turn test is that some of the signs of alcohol impairment may stem from other physical problems. Along with that, there are other signs of physical impairment that can stem from various causes, including fatigue, an injury or illness, and nervousness. Those who are physically inactive, elderly, or obese may have trouble completing the walk-and-turn test without flaw. The NTSA used to say that those who are 50 pounds or more overweight may have difficulty performing the test, and that the suspect must walk along a real line. “Later NHTSA manuals removed the weight comment, and also inserted the phrase ‘imaginary line’ at the instruction phase, even though original research always used a visible line”. The fact that officers are no longer required to provide a line for the suspect to walk along may affect the outcome of the test, and often adds to the scrutiny received from critics.
Probable Cause to Arrest
If the officer has sufficient probable cause that the suspect has been driving under the influence of alcohol, they will make the arrest, handcuff the suspect and transport them to the police station. En route, the officer may advise them of their legal implied consent obligation to submit to an evidentiary chemical test of blood, breath or possibly urine depending on the jurisdiction.
Laws relating to what exactly constitutes probable cause vary from state to state. In California it is a refutable presumption that a person with a BAC of 0.08% or higher is driving under the influence. However, section 23610(a)(2) of the California Vehicle Code states that driving with a BAC between 0.05% and 0.08% "shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage".
An 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. Some states sought to impose criminal punishment for a refusal to submit to a chemical test of his/her breath or blood; however, in Birchfield v. North Dakota, the United States Supreme Court visited the issue of whether states can criminalize a refusal to submit to a chemical test. The United States Supreme Court decided that states may criminalize a refusal to submit to a breath test; but not a refusal to submit to a blood test absent a McNeely warrant, named after Missouri v. McNeely (2013), which was a case decided by United States Supreme Court, on appeal from the Supreme Court of Missouri, regarding exceptions to the Fourth Amendment to the United States Constitution under exigent circumstances. The United States Supreme Court ruled that police must generally obtain a warrant before subjecting a drunken-driving suspect to a blood test, and that the natural metabolism of blood alcohol does not establish a per se exigency that would justify a blood draw without consent.
Regarding blood tests, some commentators, such as Brown University's Jacob Appel, have criticized the role of medical personnel in this process. According to Appel, "If physicians acquiesce today in the removal of a resistant patient's blood, soon they may be called upon to pump the contents of an unwilling patient's stomach or even to perform involuntary surgery to retrieve an evidential bullet".
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 a BAC of 0.08% or higher (see blood alcohol test assumptions).
Booking & Charging
If it is determined after arrest that the person's BAC is not at or above the legal limit of 0.08%, they will probably be released without any charges. One may, however, still be charged with driving under the influence of alcohol on the basis of driving symptoms, observed impairment, admissions 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 impaired driving from drugs, the arrested 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 they are 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 them. If they cannot make bail or is not granted O.R., they will be kept in jail to wait for the arraignment on remand.
Drunk driving is a public health concern in the United States, and reducing its frequency may require an integrated community-based approach utilizing sanctions and treatments. Several intervention programs have been developed, such as the Paradigm Developmental Model of Treatment (PDMT), a program encouraging a paradigm shift in the offender's view of oneself and the world.
The National Institute for Alcohol Abuse and Alcoholism suggests environmental interventions to help eliminate drinking and driving all together. To date, the most successful law in combating drinking and driving has been raising the minimum drinking age to 21 (NIAAA, 2011). NHTSA estimates that a legal drinking age of 21 saves 700 to 1,000 lives annually. Since 1976, these laws have prevented more than 21,000 traffic deaths. Other suggestions include raising taxes, enacting zero-tolerance laws, stepping up enforcement, school-based prevention programs, and family based prevention programs (NIAAA).
In countries such as the United Kingdom and Australia drunk driving and deaths caused by drunk driving are considerably lower than in the USA. Drunk driving deaths in the UK (population 61 million, 31 million cars) were 380 in 2010 (12% of all fatal accidents). In California (population 36 million, 32 million cars) there were 1,489 deaths from traffic accidents related to "alcohol or other drugs" in 2007 (22% of all fatal accidents). Alcohol consumption per capita in the UK and Australia is higher than in the USA and the legal age for drinking lower.
Research in the United Kingdom has shown that the danger group for drunk driving is young men in their early 20s rather than teenagers. It is not uncommon for police forces in Australia to randomly stop motorists and submit them to a Random breath test. This test involves speaking or blowing into a hand held device to give a reading. Refusing a roadside test is an offense, and is subject to the same penalty as high range drunk driving. This detection method is not employed in the UK, and it is not an offence in England or Wales for a fully licensed driver to drive with a BAC of less than 0.08% (Australia and Scotland have limits of 0.05%). Also in Australia it is an offence for any person driving on Learner or probationary ('P1 or P2') plates (aged under 20 years) to drive with any alcohol at all in their system. The BAC must be 0.00% and still remains under 0.05% for an "instructing a learner".
Unlike the USA, these countries do not see restricting access to alcohol as having any useful role to play in reducing drunk driving. Their experience is that random breath tests, severe penalties, including imprisonment for a first offense (in UK), combined with blanket public service broadcasting are a more effective strategy.
Also, Australian and British Law do not recognize the crime of DUI Manslaughter and sentences for causing death by drunk driving are much lower than the USA. In the UK, a judge makes a sentencing decision based on the amount of alcohol present. This can lead to imprisonment for a first offence.
In Germany, a legal limit of 0.05% lowers to 0.03% if a driver is found to be at fault in a traffic accident. 0.00% is the standard for those who are under 21 years of age.
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