Technology in DWI Cases: A Brief Look at Where We Are Today and Where We Are Headed.

• Author: Inman, Erin

Alcohol-impaired driving killed 11,654 people on America's roadways in 2020. (1) Prosecutors play an important role in minimizing the number of lives lost each year by pursuing impaired driving (i.e., DWI or DUI) charges and ensuring offenders are properly sentenced. (2) "DWI cases," however, "can be highly complex and difficult to prosecute..." (3) Part of what makes an impaired driving case complex requires a prosecutor to not only master the courtroom, but to also master the modern-day technology available to detect and secure evidence of impairment as well as assist with the creation of appropriate sentencing recommendations. Technology of the future may also hinder or prevent an impaired motorist from being able to drive in the first place thereby making impaired driving prosecutions a thing of the past. This article highlights some of the tools used to secure evidence in an impaired driving investigation; to craft sentencing recommendations to rehabilitate offenders/reduce recidivism; and to prevent impaired driving from happening at all.

PROVING THE DWI

Technology in modern policing includes the use of body-worn cameras, (4) car dash cameras, cell phone data, (5) and even drones'' (e.g., for use in collision reconstruction and crash scene mapping) in investigating impaired driving and other traffic offenses. Each of these tools aid in gathering evidence that previously was not captured for trial. They also present new challenges for both law enforcement and prosecutors. Footage from cameras, for example, requires storage equipment and must be logged and retained by law enforcement agencies, requiring additional resources to do. Prosecutors must review the camera footage, redact certain sensitive information from it, and provide the means to transfer the video to defendants in discovery. A prosecutor's review of the video footage includes properly assessing it and ultimately presenting it in court.Thus, while advancements in technology help cases, it also means there are often unintended financial costs and employee burdens that complicate matters. Furthermore, it is the prosecutor's job to not only properly introduce this evidence at trial, but to also explain its significance and meaning to the judge and jury. In this way, a prosecutor must have both a mastery of the courtroom and a mastery ot the technology used by law enforcement to ultimately prove the impaired driving case.

Law enforcement technology is not the only kind to complicate matters for a prosecutor. Technology used by toxicologists and other scientists also adds to the complexity of impaired driving cases. For instance, breath or blood test results are one ot the most compelling pieces of evidence in a DWI case. The presence of alcohol and or drugs in a person's breath or blood provides a degree of certainty that the defendant consumed alcohol and/or drugs. For that reason, much of the developing DWI technology is aimed at securing this evidence. Roadside oral fluid testing, for example, has become increasingly integrated into law enforcement investigations.

Roadside oral fluid testing is used to screen suspects for recent use ot commonly consumed drugs or drug classes, such as tetrahydrocannabinol (THC), cocaine, methamphetamine, amphetamine, opioids, and benzodiazepines. (8) Officers collect oral fluid from a suspect using a collection device, then insert the samples into a handheld analyzer. (9) Results are available within minutes. (10) Officers for decades have been able to screen roadside for alcohol using preliminary breath test (PBT) devices, but screening for drugs roadside is relatively new in the United States. The American Automobile Association (AAA) recognized its growing popularity and created a 76-page resource, Use of Oral Fluids to Detect Drugged Drivers: A Toolkit, (11) for those jurisdictions interested in implementing its own oral fluid program. AAA's Foundation for Traffic Safety (FTS) conducts research aimed at preventing traffic injuries and death and recently studied how long after a person uses certain drugs it can be detected in an oral fluid test and what factors may influence that. (12) "Efforts to understand the proximity of drivers' drug use in time may assist in better understanding and properly enforcing drug-impaired driving laws." (13) A roadside oral fluid test is akin to a PBT in that it is not admissible as evidence of impairment at trial, but it is typically admissible for determination of probable cause for both the arrest decision and to obtain a search warrant for blood. This is where electronic warrants (e-warrants) come into play.

Search warrants for blood are used by law enforcement in DWI cases for a variety of reasons including when the driver does not voluntarily consent to a blood draw (i.e., refuses to submit to chemical testing), the...