Off the roads & out of the courts: enter a technology fix for drunk driving.

Author:Pasman-Green, Nora J.
 
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  1. INTRODUCTION--COULD THERE BE A FIX? II. How BIG IS THE PROBLEM III. HOW WELL IS THE FIX WORKING? IV. PROGRESS TOWARD A PERMANENT FIX V. A CAUTIONARY TALE VI. IN THE MEANTIME I. INTRODUCTION--COULD THERE BE A FIX?

    If the statistics are accurate, then like many people in America, I know someone who has been convicted of drunk driving. (1) When this young man (and yes, most convicted drunk driving offenders are men (2)) was sentenced, a condition of his probation was that he had to install an alcohol ignition interlock device (AIID) on his car. For as long as he was on probation, his car would not start until this machine certified that he had not been drinking. I wished he would be on probation for the rest of his life.

    Perhaps I am naive. AIIDs were news to me. But, once I learned how these devices worked, and how they will work in the future, its implications were astounding. AIIDs, it seems, have the potential to virtually eliminate drunk driving liability, both criminal and civil. Even more important, AIIDs could rid the road of drunk drivers who turn their automobiles into deadly weapons. After all, drunk driving is not simply a criminal violation; drunk driving has become a major public health problem. Why, I wondered, isn't this thing standard equipment on all vehicles? It turns out that I was way behind the curve on these questions, too.

    For years, scholars, scientists, policymakers, and public advocacy groups have been exploring and debating whether AIIDs would effectively prevent someone from driving drunk. (3) AIIDs measure blood alcohol content (BAC), which is the underlying scientific evidence of driving impairment. (4) Indeed, the technology supporting AIIDs has steadily improved. Progress toward a consensus that identifies and ranks the potential goals that can be achieved with the AIID technology is slowly crystallizing. AIIDs have their found into way into legislation, both nationally and internationally, particularly legislation aimed at repeat offenders. And, installing AIIDs as standard equipment on vehicles has, indeed, been envisioned as the ultimate solution.

    But, when asked point-blank whether having an AIID as standard equipment on all cars to prevent anyone from driving under the influence, few think this is a good idea. (Except, understandably, my friend whose brother was killed by a drunk driver who entered the interstate through an exit ramp and hurled himself head-on into a car driven by a fifty year-old husband and father of young children.) Most folks react as if the suggestion were the ultimate threat to fundamental freedom. They have the right to drink! They have the right to drive! But silence reigns when I ask, does anyone, under any circumstances, have the right to drive drunk?

    No one in his politically-correct mind would say yes. While Americans have jealously protected their right to drink, (5) we have long-standing objections to drunk driving. Nonetheless, while we willingly subject ourselves to the "rules of the road," we believe we have a right to drive as long as we obey them. (6) Would AIIDs be a tolerable infringement of that right in service of the public safety goal of eliminating drunk drivers from our streets? If it were impossible for anyone to drive drunk because they simply could not start the car, it could mean that no driver would ever become embroiled in the criminal justice system for drunk driving. It is mindboggling to imagine how many other crimes would be thwarted if no one could drive to the scene to commit it. (7)

    Could there come a day when no one who is demonstrably too impaired to drive, (8) could turn the key in the ignition and drive off? What if people who misjudge their sobriety could no longer drunkenly turn their cars into deadly weapons? What if the daily blood bath on the highways and byways of America finally pulled to a stop? (9)

  2. HOW BIG IS THE PROBLEM

    In the last thirty years, public intolerance of drunk driving found its voice in a variety of grassroots organizations, most notably, Mothers Against Drunk Driving (MADD). (10) During the early 1980s, concerns about the dangers associated with drunk driving entered the political arena. (11) Legislators across the country responded by reforming drunk driving laws to mandate stricter enforcement and impose harsher penalties. (12) The National Highway Traffic Safety Administration (NHTSA) has poured millions of dollars into publicity campaigns to heighten public awareness of the dangers of drunk driving. (13)

    Initially, these measures seemed to deter drunk driving because the number of arrests decreased by about twenty-eight percent during the late 1980s and early 1990s. (14) Fewer arrests suggested that less people were driving drunk, increasing the safety of roads.

    Any initial, modest reductions in alcohol-related crashes, arrests, and convictions during the 1980s did not continue. Despite harsher statutory penalties, (15) more comprehensive treatment opportunities and obligations for offenders, (16) and ongoing public awareness efforts, (17) the sobering evidence is that drunk driving remains largely undeterred. In 2008, there were 1,483,396 arrests for driving under the influence. (18) Arrest and conviction statistics do not tell the whole story: Studies demonstrate that when a first-time offender is arrested he or she, on average, has driven eighty-seven (87) other times while over the legal limit. (19) Research finds up to seventy-five percent of offenders drive illegally after license suspension. (20)

    In 2008, thirty-one percent of the nation's fatal crashes (21) involved alcohol-impaired driving. (22) In total, 11,773 people were killed in these alcohol-impaired-driving crashes. (23) An additional 255,500 are injured in motor vehicle crashes involving an alcohol-impaired driver. (24) On average, a drunk driver kills someone every forty-five minutes. (25) If this trend continues, studies indicate that thirty percent of all Americans will be involved in an alcohol-related car accident during their lifetime. (26)

    Not only does drunk driving endanger Americans' lives and well being, but alcohol-related crashes cost the country over $51 billion dollars annually. (27) This represents over twenty-two percent of all crash costs in this country. (28) Crash figures do not tell the whole story, of course. Many drunk drivers do not cause crashes, but the law enforcement and judicial systems suffer substantial economic hemorrhaging nonetheless. The police time consumed in drunk driving stops and arrests is not included, for example. On average, the costs to arrest, prosecute, and convict an offender exceed $50,000. (29) But, the costs don't stop there. Most convicted offenders are placed on probation. (30) Each year, offenders placed on probation end up costing more than $1.6 billion. (31) Overall, the penal system is overloaded. "Corrections" has been one of the fastest growing consumers of state budgets. (32)

    Consider, too, what happens to the life of the offender, quite apart from the effect of drunk driving on the criminal justice system, the people injured and/or the property damaged in a drunk driving incident. A drunk driving arrest has irrevocably tarnished many a reputation. (33) From arrest to completion of probation, the experience is humiliating and costly. Drunk driving convictions often leave the offender in financial ruin, over and above the fines and restitution an offender may be obligated to pay. If the offender's driver's license is not suspended, the cost of automobile insurance is staggering. (34) If the conviction results in license suspension, the offender's employment potential is unquestionably diminished. (35) The increased criminalization of drunk driving laws has stigmatized many otherwise upstanding citizens with all the trappings of a criminal conviction. Their lost productivity is incalculable.

  3. HOW WELL IS THE FIX WORKING?

    By the late 1990s, and well into this decade, at the state and national level, legislation upped the ante with increasingly harsh penalties for drunk driving offenses, particularly for repeat offenders. (36) These efforts include provisions requiring AIID installation in offenders' vehicles.

    AIIDs usually employ a handheld breath-testing device wired to a control unit under the dash. (37) To start the car, the driver must provide a breath sample into the handheld device to determine whether the driver's BAC is below a preset value. (38) The breath-testing device measures the person's breath alcohol concentration (BrAC) to determine the BAC level. (39) Evidence shows that a person's driving ability can be impaired with a BAC as low as .02 percent, but all data establishes that everyone's driving ability is seriously impaired with a BAC of .10 percent. (40) Consequently, all fifty states have set .08 as the BAC level necessary to sustain a drunk driving conviction. (41)

    The vast majority of cases have upheld the BAC standard as an accurate measure of impairment. (42) The same has been true for the breathalyzer test. As early as 1971, the reliability of breathalyzers was well accepted by courts. (43) Today, some courts even excuse the prosecution from laying the foundation for the admissibility of the test because admissibility has been pre-determined by statute. (44) Still, defendants challenge breathalyzers in many drunk driving cases. (45) However, as long as the prosecutor can demonstrate that the machine measured up to industry standards, (46) and that the operator was qualified, challenges are generally unsuccessful. (47) In addition, in Schmerber v. California, the United States Supreme Court rejected Fifth Amendment challenges against self-incrimination for to the admissibility of intoxication tests. (48) The Supreme Court also held that the tests do not violate the Fourth Amendment for being unreasonable searches or seizures. (49)

    Beyond the use of breath-testing devices to determine intoxication levels during a traffic...

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