DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING. Overview of Detection, Note-Taking and Testimony

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1 PREFACE The prcedures utlined in this manual describe hw the Standardized Field Sbriety Tests (SFSTs) are t be administered under ideal cnditins. We recgnize that the SFSTs will nt always be administered under ideal cnditins in the field, because such cnditins will nt always exist. Even when administered under less than ideal cnditins, they will generally serve as valid and useful indicatrs f impairment. Slight variatins frm the ideal, i.e., the inability t find a perfectly smth surface at radside, may have sme affect n the evidentiary weight given t the results. Hwever, this des nt necessarily make the SFSTs invalid.

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3 DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING I. Intrductin and Overview II. III. IV. Detectin and General Deterrence The Legal Envirnment Overview f Detectin, Nte-Taking and Testimny V. Phase One: Vehicle in Mtin VI. VII. VIII. IX. Phase Tw: Persnal Cntact Phase Three: Pre-arrest Screening Cncepts and Principles f the Standardized Field Sbriety Tests Test Battery Demnstratins X. "Dry Run" Practice Sessin XI. XII. XIII. XIV. XV. XVI. "Testing Subjects" Practice: First Sessin Prcessing the Arrested Suspect and Preparatin fr Trial Reprt Writing Exercise and Mt Curt "Testing Subjects" Practice: Secnd Sessin Review and Prficiency Examinatins Written Examinatin and Prgram Cnclusin

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5 SESSION I INTRODUCTION AND OVERVIEW

6 SESSION I INTRODUCTION AND OVERVIEW Upn successfully cmpleting this sessin, the students will be able t: State the gals and bjectives f the curse. Describe the curse schedule and activities. Demnstrate their pre-training knwledge f curse tpics. CONTENT SEGMENTS LEARNING ACTIVITIES A. Welcming Remarks and Objectives Instructr-Led Presentatins B. Administrative Details C. Pre-Test Written Examinatin

7 DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING TRAINING GOALS AND OBJECTIVES 1. Ultimate Gal T increase deterrence f DWI vilatins, and thereby reduce the number f crashes, deaths and injuries caused by impaired drivers. 2. Enfrcement-Related Gals a. Understand enfrcement's rle in general DWI deterrence. b. Understand detectin phases, clues and techniques. c. Understand requirements fr rganizing and presenting testimnial and dcumentary evidence in DWI cases. 3. Jb Perfrmance Objectives As a result f this training, students will becme significantly better able t: a. Recgnize and interpret evidence f DWI vilatins. b. Administer and interpret Standardized Field Sbriety Tests. c. Describe DWI evidence clearly and cnvincingly in written reprts and verbal testimny. 4. Enabling Objectives In pursuit f the jb perfrmance bjectives, students will cme t: a. Understand the tasks and decisins f DWI detectin. b. Recgnize the magnitude and scpe f DWI-related crashes, deaths, injuries, prperty lss and ther scial aspects f the DWI prblem. c. Understand the deterrence effects f DWI enfrcement. I-1

8 d. Understand the DWI enfrcement legal envirnment. e. Knw and recgnize typical vehicle maneuvers and human indicatrs symptmatic f DWI that are assciated with initial bservatin f vehicles in peratin. f. Knw and recgnize typical reinfrcing maneuvers and indicatrs that cme t light during the stpping sequence. g. Knw and recgnize typical sensry and ther clues f alchl and/r ther drug impairment that may be seen during face-t-face cntact with DWI suspects. h. Knw and recgnize typical behaviral clues f alchl and/r ther drug impairment that may be seen during the suspect's exit frm the vehicle. i. Understand the rle and relevance f psychphysical testing in pre-arrest screening f DWI suspects. j. Understand the rle and relevance f preliminary breath testing in pre-arrest screening f DWI suspects. k. Knw and carry ut apprpriate administrative prcedures fr validated divided attentin psychphysical tests. l. Knw and carry ut apprpriate administrative prcedures fr the Hrizntal Gaze Nystagmus test. m. Knw and recgnize typical clues f alchl and/r ther drug impairment that may be seen during administratin f the Standardized Field Sbriety Tests. n. Understand the factrs that may affect the accuracy f preliminary breath testing devices.. Understand the elements f DWI prsecutin and their relevance t DWI arrest reprting. p. Chse apprpriate descriptive terms t cnvey relevant bservatins f DWI evidence. I-2

9 q. Write clear, descriptive narrative DWI arrest reprts. 5. Additinal Training Gals and Objectives a. If the fur-hur (Intrductin t Drugs That Impair) r eight-hur (Drugs That Impair Driving) mdules are presented as part f the SFST training prgram, the gals and bjectives fr thse mdules are listed in the apprpriate manuals. I-3

10 ATTACHMENT GLOSSARY OF TERMS ALVEOLAR BREATH - Breath frm the deepest part f the lung. BLOOD ALCOHOL CONCENTRATION (BAC) - The percentage f alchl in a persn's bld. BREATH ALCOHOL CONCENTRATION (BrAC) - The percentage f alchl in a persn s breath, taken frm deep in the lungs. CLUE - Smething that leads t the slutin f a prblem. CUE - A reminder r prmpting as a signal t d smething. A suggestin r a hint. DIVIDED ATTENTION TEST - A test which requires the subject t cncentrate n bth mental and physical tasks at the same time. DWI/DUI - The acrnym "DWI" means driving while impaired and is synnymus with the acrnym "DUI", driving under the influence r ther acrnyms used t dente impaired driving. These terms refer t any and all ffenses invlving the peratin f vehicles by persns under the influence f alchl and/r ther drugs. DWI DETECTION PROCESS - The entire prcess f identifying and gathering evidence t determine whether r nt a suspect shuld be arrested fr a DWI vilatin. The DWI detectin prcess has three phases: Phase One - Vehicle In Mtin Phase Tw - Persnal Cntact Phase Three - Pre-arrest Screening EVIDENCE - Any means by which sme alleged fact that has been submitted t investigatin may either be established r disprved. Evidence f a DWI vilatin may be f varius types: a. Physical (r real) evidence: smething tangible, visible, r audible. b. Well established facts (judicial ntice). c. Demnstrative evidence: demnstratins perfrmed in the curtrm. d. Written matter r dcumentatin. e. Testimny. FIELD SOBRIETY TEST - Any ne f several radside tests that can be used t determine whether a suspect is impaired. HORIZONTAL GAZE NYSTAGMUS (HGN) - An invluntary jerking f the eyes as they gaze tward the side. 1

11 ILLEGAL PER SE - Unlawful in and f itself. Used t describe a law which makes it illegal t drive while having a statutrily prhibited Bld Alchl Cncentratin. NYSTAGMUS - An invluntary jerking f the eyes. ONE-LEG STAND (OLS) - A divided attentin field sbriety test. PERSONAL CONTACT - The secnd phase in the DWI detectin prcess. In this phase the fficer bserves and interviews the driver face t face; determines whether t ask the driver t step frm the vehicle; and bserves the driver's exit and walk frm the vehicle. PRE-ARREST SCREENING - The third phase in the DWI detectin prcess. In this phase the fficer administers field sbriety tests t determine whether there is prbable cause t arrest the driver fr DWI, and administers r arranges fr a preliminary breath test. PRELIMINARY BREATH TEST (PBT) - A pre-arrest breath test administered during investigatin f a pssible DWI vilatr t btain an indicatin f the persn's bld alchl cncentratin. PSYCHOPHYSICAL - "Mind/Bdy." Used t describe field sbriety tests that measure a persn's ability t perfrm bth mental and physical tasks. STANDARDIZED FIELD SOBRIETY TEST BATTERY - A battery f tests, Hrizntal Gaze Nystagmus, Walk-and-Turn, and One-Leg Stand, administered and evaluated in a standardized manner t btain validated indicatrs f impairment based n NHTSA research. TIDAL BREATH - Breath frm the upper part f the lungs and muth. VEHICLE IN MOTION - The first phase in the DWI detectin prcess. In this phase the fficer bserves the vehicle in peratin, determines whether t stp the vehicle, and bserves the stpping sequence. VERTICAL GAZE NYSTAGMUS - The invluntary jerking f the eyes ccurring as the eyes gaze upward. WALK-AND-TURN (WAT) - A divided attentin field sbriety test. 2

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13 SESSION II DETECTION AND GENERAL DETERRENCE

14 SESSION II DETECTION AND GENERAL DETERRENCE Upn successfully cmpleting this sessin, the student will be able t: Describe the frequency f DWI vilatins and crashes. Define General Deterrence. Describe the Relatinship between Detectin and General Deterrence. Describe a brief verview f alchl; Identify cmmn types f alchls; Describe the physilgic prcesses f absrptin, distributin and eliminatin f alchl in the human bdy; CONTENT SEGMENTS LEARNING ACTIVITIES A. The DWI Prblem Instructr-Led Presentatins B. The Cncept f General Deterrence Reading Assignments C. Relating Detectin t Deterrence Ptential D. Evidence f Effective Detectin and Effective Deterrence E. Physilgy f Alchl

15 DWI DETERRENCE: AN OVERVIEW Each year, tens f thusands f peple die in traffic crashes. Thrughut the natin, alchl is the majr cntributr t traffic fatalities. Apprximately 38.4% f all fatal crashes are alchl-related. (1998 NHTSA FARS data) Impaired drivers are mre likely than ther drivers t take excessive risks such as speeding r turning abruptly. Impaired drivers als are mre likely than ther drivers t have slwed reactin times. They may nt be able t react quickly enugh t slw dwn befre crashing and are less likely t wear seatbelts. On the average, tw percent f drivers n the rad at any given time are DWI. DWI vilatins and crashes are nt simply the wrk f a relatively few "prblem drinkers" r "prblem drug users." Many peple cmmit DWI, at least ccasinally. In a 1991 Gallup Survey f 9,028 drivers natinwide, 14% f the respndents reprted they drve while clse t r under the influence f alchl within the last three mnths. It is cnservatively estimated that the typical DWI vilatr cmmits that ffense abut 80 times per year. In ther wrds, the average DWI vilatr drives while under the influence nce every fur r five nights. GENERAL DETERRENCE One apprach t reducing the number f drinking drivers is general deterrence f DWI. General deterrence f DWI is based in the driving public's fear f being arrested. If enugh vilatrs cme t believe that there is a gd chance that they will get caught, at least sme f them will stp cmmitting DWI at least sme f the time. Hwever, unless there is a real risk f arrest, there will nt be much fear f arrest. Law enfrcement fficers must arrest enugh vilatrs enugh f the time t cnvince the general public that they will get caught, sner r later, if they cntinue t drive while impaired. Hw many DWI vilatrs must be arrested in rder t cnvince the public that there is a real risk f arrest fr DWI? Several prgrams have demnstrated that significant deterrence can be achieved by arresting ne DWI vilatr fr every 400 DWI vilatins cmmitted. Currently, hwever, fr every DWI vilatr arrested, there are between 500 and 2,000 DWI vilatins cmmitted. (See Exhibit 2-1) When the chances f being arrested are ne in tw thusand, the average DWI vilatr really has little t fear. II-1

16 EXHIBIT 2-1 Chances f a DWI vilatr being arrested are as lw as 1 in Why is the DWI arrest t vilatins rati (1:2000) s lw? There are three ntewrthy reasns. DWI vilatrs vastly utnumber plice fficers. It is nt pssible t arrest every drinking driver each time they cmmit DWI. Sme fficers are nt highly skilled at DWI detectin. They fail t recgnize and arrest many DWI vilatrs. Sme fficers are nt mtivated t detect and arrest DWI vilatrs. SIGNIFICANT FINDINGS In a 1975 study cnducted in Frt Lauderdale, Flrida, nly 22 percent f traffic vilatrs wh were stpped with BACs between 0.10 and 0.20 were arrested fr DWI. The remainder were cited fr ther vilatins, even thugh they were legally impaired. In this study breath tests were administered t the vilatrs by researchers after the plice fficers had cmpleted their investigatins. The fficers failed t detect 78 percent f the DWI vilatrs they investigated. The implicatin f this study, and f ther similar studies, is that fr every DWI vilatr actually arrested fr DWI, three thers are cntacted by plice fficers, but are nt arrested fr DWI. (See Exhibit 2-2.) It is clear that significant imprvement in the arrest rate culd be achieved if fficers were mre skilled at DWI detectin. II-2

17 EXHIBIT 2-2 Fr every DWI vilatr arrested, 3 thers are cntacted face t face by plice, but are nt arrested. Several enfrcement prgrams have succeeded in achieving significant DWI deterrence. Cnsider, fr example, the three year intensive weekend DWI enfrcement prgram in Stcktn, Califrnia. Under that prgram: arrests increased 500 percent; weekend nighttime crashes decreased 34 percent; the prprtin f nighttime weekend drivers legally under the influence drpped frm nine percent t six percent. Imprved DWI detectin can be achieved in virtually every jurisdictin in the cuntry. The keys t success are plice fficers wh are: skilled at DWI detectin; willing t arrest every DWI vilatr wh is detected; supprted by their agencies in all aspects f this prgram, frm plicy thrugh practical applicatin. HOW WIDESPREAD IS DWI? THE PROBLEM OF DWI While nt all f thse wh drive after drinking have a BAC f 0.08/0.10 r mre, the presumptive r illegal per se limit fr DWI in many states, sme drivers d have BACs in excess f these limits. II-3

18 A frequently quted, and ften misinterpreted, statistic places the average inci-dence f DWI at ne driver in fifty. Averaged acrss all hurs f the day and all days f the week, tw percent f the drivers n the rad are DWI. 1 That 1 in 50 figure is ffered as evidence that a relatively small segment f America's drivers -- the s-called "prblem" grup -- accunt fr the majrity f traffic deaths. There's nthing wrng with that figure as a statistical average, but plice fficers knw that at certain times and places many mre than tw percent f drivers are impaired. Natinal Highway Traffic Safety Administratin research suggests that during the late night, weekend hurs, as many as ten percent f drivers n the rads may be DWI. 2 On certain hliday weekends, and ther critical times, the figure may g even higher. HOW MANY? HOW OFTEN? The issue f hw many DWIs are n the rad at any given time is an imprtant factr in measuring the magnitude f the prblem. Hwever, frm an verall traffic safety perspective, the mre imprtant issue may be the number f drivers wh ever cmmit DWI. Just hw widespread is this vilatin? In enfrcement terms, hw many peple d we need t deter? Clearly, it is mre than ne in fifty. Althugh it may be true that, n the average, tw percent f drivers are DWI at any given time, it certainly is nt the same tw percent every time. It is even mre than ne in ten. Nt everyne wh cmmits DWI is ut n the rad impaired every Friday and Saturday night. Sme f them, at least, must skip an ccasinal weekend. Thus, the ten percent wh shw up, weekend after weekend, in the Friday and Saturday statistics must cme frm a larger pl f vilatrs, each f whm "cntributes" t the statistics n sme nights, but nt necessarily n all nights. An analysis f BAC radside survey data suggests that the average DWI vilatr cmmits the vilatin apprximately 80 times each year. 3 Undubtedly, there are sme wh drive impaired virtually everyday; thers cmmit the vilatin less ften. It is likely that at least ne quarter f all American mtrists drive while impaired at least nce in their lives. That figure falls apprximately midway between the 55 percent f drivers wh at least ccasinally drive after drinking and the ten percent f weekend, nighttime drivers wh have BACs abve the s-called legal limit. 1 Brkenstein, R.F., et al, Rle f Drinking Driver in Traffic Accidents. Blmingtn IN: Department f Plice Administratin, Indiana University, March Alchl Highway Safety Wrkshp, Participant's Wrkbk Prblem Status. NHTSA, II-4

19 Our estimated ne in fur drivers includes everyne wh drives impaired everyday, as well as everyne wh cmmits the vilatin just nce and never ffends again; and it includes everyne in between. In shrt, it includes everyne wh ever runs the risk f being invlved in a crash while impaired. SOCIETY'S PROBLEM AND THE SOLUTION It really desn't matter whether this ne in fur estimate is reasnably accurate (in fact, it is prbably lw). The fact is that far mre than tw percent f American drivers actively cntribute t the DWI prblem. DWI is a crime cmmitted by a substantial segment f Americans. It has been and remains a ppular crime; ne that many peple frm all walks and statins f life cmmit. DWI is a crime that can be fught successfully nly thrugh a scietal apprach f cmprehensive cmmunity-based prgrams. THE SOLUTIONS THE ULTIMATE GOAL: CHANGING BEHAVIOR What must cmprehensive cmmunity based DWI prgrams seek t accmplish? Ultimately, nthing less than fundamental behaviral change, n a widespread basis. The gal is t encurage mre Americans t: avid cmmitting DWI, either by aviding r cntrlling drinking prir t driving r by selecting alternative transprtatin. intervene actively t prevent thers frm cmmitting DWI (fr example, putting int practice the theme "friends dn't let friends drive drunk"); avid riding with drivers wh are impaired. The final test f the value f DWI cuntermeasures n the natinal, state and lcal levels is whether they succeed in getting significantly mre peple t mdify their behavir. The prgrams als pursue ther mre immediate bjectives that supprt r reinfrce the ultimate gal. Hwever, the ultimate gal is t change driving while impaired t an unacceptable frm f behavir at all levels. 3 DWI Law Enfrcement Training: Instructr's Manual. NHTSA. August P.139. II-5

20 PURSUING THE GOAL: TWO APPROACHES Hw can we bring abut these changes in behavir? Hw can we induce mre peple t avid DWI vilatins, prevent thers frm drinking and driving, and avid becming passive "statistics" by refusing t ride with drinking drivers? Basically, there are tw general appraches that must be taken t achieve this gal. One: preventin -- gives prmise f the ultimate, lasting slutin t the DWI prblem; but it will require a substantial amunt f time t mature fully. The ther -- deterrence -- nly ffers a partial r limited slutin, but it is available right nw. PREVENTION: THE ULTIMATE SOLUTION DWI cuntermeasures that strive fr the ultimate achievement f drinking and driving behaviral changes have been gruped under the label "Preventin." There are many kinds f DWI preventive activities. Sme are carried ut by and in ur schls, sme thrugh the mass media, sme thrugh cncerned civic grups, and s frth. The varius preventive effrts fcus n different specific behavirs and address different target grups. Hwever, they seek t change drinking and driving behavir by prmting mre psitive attitudes and by fstering a set f values that reflects individual respnsibilities tward drinking and driving. Preventive cuntermeasures seek sciety's acceptance f the fact that DWI is wrng. Sme peple believe that drinking and driving is strictly an individual's persnal business; that it is up t each persn t decide whether r nt t accept the risk f driving after drinking. Preventive activities try t dispel that utmded and irrespnsible belief. Instead, they prmte the idea that n ne has the right t endanger thers by drinking and driving, r t risk becming a burden (ecnmically and therwise) t thers as a result f injuries suffered while drinking and driving. Realistically, everyne has an bligatin nt nly t cntrl their wn drinking and driving, but als t speak up when thers are abut t cmmit the vilatin. Only when all f sciety views DWI as a negative behavir that cannt be tlerated r cndned, will the public's behavir begin t change. That is the lng-term slutin. DWI preventin will never be 100 percent successful. In reality, there will always be peple wh drink and drive. Hwever, with new sets f values cme new behavirs. Fr example, ne need nly lk at the prliferatin f "Thank Yu fr Nt Smking" signs. Displaying such a sign a generatin ag wuld have been viewed as implite, if nt anti-scial. Tday, "N Smking" plicies are strictly enfrced in many wrk areas. II-6

21 DWI preventin thrugh basic shifts in attitudes and values can wrk. Given enugh time, it will wrk. The key wrd is time. A full generatin r mre must grw t maturity befre new attitudes take hld and start t change behavir. We can lk at tday's children and expect that their attitude tward drinking and driving will be different frm their parents; hwever, we need an interim slutin, and we need it NOW. DWI DETERRENCE DETERRENCE: THE INTERIM SOLUTION DWI cuntermeasures that seek a shrt-cut t the ultimate gal f behaviral change generally are labeled "Deterrence." Deterrence can be described as negative reinfrcement. Sme deterrence cuntermeasures fcus primarily n changing individual drinking and driving behavir while thers seek t influence peple t intervene int thers' drinking and driving decisins. The key feature f deterrence is that it strives t change DWI behavir withut dealing directly with the prevailing attitudes abut the rightness r wrngness f DWI. Deterrence uses a mechanism quite distinct frm attitudinal change: fear f apprehensin and applicatin f sanctins. THE FEAR OF BEING CAUGHT AND PUNISHED Large scale DWI deterrence prgrams try t cntrl the DWI behavir f the driving public by appealing t the public's presumed fear f being caught. Mst actual r ptential DWI vilatrs view the prspect f being arrested with extreme distaste. Fr sme, the arrest, with its attendant handcuffing, bking, publicity and ther stigmatizing and traumatizing features, is the thing mst t be feared. Fr thers, it is the prspective punishment (jail, stiff fine, etc.) that causes mst f the cncern. Still thers fear mst the lng-term csts and incnvenience f a DWI arrest: the license suspensin and increased premiums fr autmbile insurance. Fr many vilatrs the fear prbably is a cmbinatin f all f these. Regardless, if enugh vilatrs are sufficiently fearful f DWI arrest, sme f them will avid cmmitting the vilatin at least sme f the time. Fear by itself will nt change their attitudes; if they d nt see anything inherently wrng with drinking and driving in the first place, the prspect f arrest and punishment will nt help them see the light. Hwever, fear smetimes can be enugh t keep them frm putting their anti-scial attitudes int practice. II-7

22 This type f DWI deterrence, based n the fear f being caught, is cmmnly called general deterrence. It applies t the driving public generally and presumably affects the behavir f thse wh have never been caught. There is an element f fear f the unknwn at wrk here. Anther type f DWI deterrence, called specific deterrence, applies t thse wh have been caught and arrested. The typical specific deterrent invlves sme type f punishment, perhaps a fine, invluntary cmmunity service, a jail term r actin against the driver's license. The punishment is impsed in the hpe that it will cnvince the specific vilatr that there is indeed smething t fear as a result f being caught, and t emphasize that if there is a next time, the punishment will be even mre severe. It is the fear f the knwn that cmes int play in this case. The cncept f DWI deterrence thrugh fear f apprehensin r punishment seems sund. But will it wrk in actual practice? The crux f the prblem is this: If the mtring public is t fear arrest and punishment fr DWI, they must perceive that there is an appreciable risk f being caught and cnvicted if they cmmit the crime. If actual and ptential DWI vilatrs cme t believe that the chance f being arrested is minimal, they will quickly lse whatever fear f arrest they may have felt. Enfrcement is the mechanism fr creating and sustaining a fear f being caught fr DWI. N specific deterrence prgram can amunt t much, unless plice fficers arrest large numbers f vilatrs; n punishment r rehabilitatin prgram can affect behavir n a large scale unless it is applied t many peple. General deterrence depends n enfrcement -- the fear f being caught is a direct functin f the number f peple wh are caught. Obviusly, the plice alne cannt d the jb. Legislatrs must supply laws that the plice can enfrce. Prsecutrs must vigrusly prsecute DWI vilatrs, and the judiciary must adjudicate fairly and deliver the punishments prescribed by law. The media must publicize the enfrcement effrt and cmmunicate the fact that the risk is nt wrth the prbable utcme. Each f these elements plays a supprtive rle in DWI deterrence. HOW GREAT A RISK IS THERE? The questin nw is, are vilatrs afraid f being caught? Mre imprtantly, shuld they be afraid? Is there really an appreciable risk f being arrested if ne cmmits DWI? The answer t all f these questins unfrtunately is: prbably nt. In mst jurisdictins, the number f DWI arrests appears t fall shrt f what wuld be required t sustain a public perceptin that there is a significant risk f being caught. II-8

23 Smetimes, it is pssible t enhance the perceived risk, at least fr a while, thrugh intensive publicity. Hwever, media "hype" withut intensified enfrcement has never been enugh t maintain the fear f arrest fr very lng. HOW MUCH SHOULD THE PUBLIC FEAR? We can draw sme reasnable estimates f DWI enfrcement intensity, based n what we knw and n certain assumptins we have already made. Suppse we deal with a randm sample f 100 Americans f driving age. If they cme frm typical enfrcement jurisdictins, chances are that exactly ne f them will be arrested fr DWI in any given year: ur annual DWI arrests, in mst places, equal abut ne percent f the number f drivers in the ppulatin. That is ne arrest ut f 100 drivers during ne year; hwever, hw many DWI vilatins d thse drivers cmmit? Recall ur previus estimates that sme 25 percent f America's drivers at least ccasinally drive while under the influence, and that the average vilatr cmmits DWI 80 times each year. Then, ur sample f 100 drivers includes 25 DWI vilatrs wh cllectively are respnsible fr 2,000 DWI vilatins yearly. CHANGING THE ODDS If an arrest/vilatin rati f 1 in 2,000 is nt enugh t make deterrence wrk, is it then reasnable t think that we can ever make deterrence wrk? After all, if we dubled DWI arrests t 1 in 1,000, we wuld still be missing 999 vilatrs fr every ne we managed t catch. If we increased arrests ten-fld, t 1 in 200, 199 wuld escape fr every ne arrested. Hw much deterrence wuld that prduce? Surprisingly, it wuld prbably prduce quite a bit. We dn't have t arrest every DWI ffender every time in rder t cnvince them that they have smething t fear. We nly have t arrest enugh f them enugh f the time t cnvince many f them that it can happen t them. As the arrest rate increases, the dds are that it will happen t them eventually. The law f averages (r cumulative prbability) will catch up with them, and sner than we might at first expect. The statistics belw display the cumulative prbability (as a percentage) f being arrested at least nce during the curse f ne, tw r three years as a functin f the arrest rate n any given night. These statistics are based n the assumptin that the average vilatr cmmits DWI 80 times each year. II-9

24 Percent f vilatrs arrested after... Nightly Arrest Rate One Year Tw Years Three Years 1 in % 7.7% 11.3% 1 in % 14.8% 21.3% 1 in % 27.4% 38.2% 1 in % 55.2% 70.0% Clearly, the chances f being caught accumulate very quickly as the arrest/vilatin rati increases. If we culd maintain a rati f ne arrest in every 500 vilatins (a level f enfrcement currently maintained in sme jurisdictins), then by the time ne year has passed, slightly mre than ne f every seven peple (14.8%) wh have cmmitted DWI during that year will have been arrested at least nce. It prbably is a high enugh chance t get the attentin -- and fear -- f many vilatrs. If we culd achieve an arrest rati f 1 in 200 (a level attainable by fficers skilled in DWI detectin) we will arrest fully ne-third f all DWI vilatrs at least nce every year, and we will arrest mre than half f them by the time tw years have gne by. DWI DETECTION: THE KEY TO DETERRENCE CAN IT BE DONE, AND WILL IT WORK? Is there any evidence that a practical and realistic increase in DWI enfrcement activity will induce a significant degree f general deterrence and a crrespnding change in DWI behavir? Yes there is. As early as 1975, in the city f Stcktn, Califrnia, a study shwed that the city's ttal number f DWI arrests (700) were cnsiderably less than ne percent f the areas licensed number f drivers (130,000). The implicatin here was that Stcktn plice were nly maintaining the arrest/vilatin ratin f 1-2,000, r less. In additin, radside surveys n Friday and Saturday nights disclsed that nine percent f the drivers were perating with BAC's f 0.10 r higher. II-10

25 Then things changed. Beginning in 1976 and cntinuing at planned intervals thrugh the first half f 1979, Stcktn plice cnducted intensive DWI enfrcement n weekend nights. The fficers invlved were extensively trained. The enfrcement effrt was heavily publicized and additinal equipment (PBTs and cassette recrders) was made available. The plice effrt was clsely crdinated with the District Attrney's ffice, the Cunty Prbatin ffice, and ther allied criminal justice and safety rganizatins. All this paid ff. By the time the prject came t a clse (in 1979) DWI arrests had increased by ver 500 percent, and weekend nighttime cllisins had decreased by 34 percent, and the number f peratrs cmmitting DWI drpped ne-third. Since the histrical Stcktn study numerus states have cnducted similar studies t determine the degree f effect that DWI arrests wuld have n alchl related fatalities in general, and ttal fatalities in particular. Mst f these studies were cnducted between 1978 and The results f these studies graphically illustrated in each state that when the number f arrests fr DWI increased, the percent f alchl related fatalities decreased. Further, the results f a study cnducted in Flrida frm , shwed that when DWI arrests per licensed driver increased, ttal fatalities decreased (12-mnth mving average). DETECTION: THE KEY TO DETERRENCE It is imprtant t understand hw increased DWI enfrcement can affect deterrence. Deterrence can vastly exceed the level f enfrcement fficers achieve n any given night. True, weekend DWI arrests can increase by as much as 500 percent, as in the Stcktn study. Hwever, even thugh the study shwed they started with an enfrcement rati n better than 1-in-2000, the tremendus increase in DWI arrests prbably nly brught the arrest rati t abut 1-in-400. Regardless f the fact that 399 DWI drivers avided arrest, the increased enfrcement effrt cnvinced at least ne-third f the vilatrs t change their behavir substantially. The law f averages quickly starts t catch up with DWI drivers when the enfrcement rati imprves t the 1-in-400 rati. At that level, unless vilatrs change their behavir, many f them will be caught, r at least will have knwn smene wh has been arrested. Cupled with the heavy publicity given t the enfrcement effrt, thse experiences were enugh t raise the perceptin level f apprehensin amng DWI peratrs that sner r later they wuld be caught. As a result, many f them changed their behavir. This is the best example f general deterrence. II-11

26 In additin, during the same time that DWI arrests went up ver 500 percent in Stcktn, citatins fr ther traffic vilatins increased by a cmparatively mdest 99 percent. The implicatin is that Stcktn's fficers were stpping and cntacting nly twice as many pssible vilatrs as they had befre, but they were cming up with mre than five times as many arrests. What have the results f these studies shwn? Basically, they have shwn that a cmmunity will benefit frm their fficers' increased skills at DWI detectin. Principally because f their special training, the fficers were better able t recgnize "cues" f impairment when they bserved vehicles in mtin, and they were mre familiar with the "clues" r human indicatrs f impairment exhibited by vilatrs during persnal cntact. The fficers als had mre cnfidence in the field sbriety tests they used t investigate their suspects. The mst imprtant factr was that far fewer f the vilatrs being stpped nw avided detectin and arrest. The difficulty in detecting DWI amng peratrs persnally cntacted by fficers has been well dcumented. Analysis f radside survey and arrest data suggest that fr every DWI vilatr arrested, three thers actually have face-t-face cntact with plice fficers but are allwed t g withut arrest. 4 Direct supprt f that inference was fund in the Frt Lauderdale BAC study, where researchers demnstrated that plice fficers arrested nly 22 percent f the DWI peratrs they cntacted, whse BAC levels were subsequently shwn t be between 0.10 and DWI Law Enfrcement Training, p. cit. 5 Frt Lauderdale BAC Study. II-12

27 The ability t detect DWI vilatrs is the key t general deterrence and pssibly, the greatest impediment t it. If we accept the three-t-ne rati f failed detectins as being reasnably accurate, the implicatins are rather alarming. Cnsider the impact n a DWI vilatr's subsequent behavir when, after being stpped by the plice, is allwed t cntinue driving. Very likely, these DWI vilatrs and their friends will becme even mre cnvinced f their ability t handle drinking and driving. Further, they will cme t believe that they will never be arrested because plice fficers can't determine when they are "ver the limit." Instead f creating general DWI deterrence, this attitude breeds specific reinfrcement. This helps t develp a feeling amng DWI vilatrs that they have nthing mre t fear frm plice than an ccasinal ticket fr a minr traffic ffense. On the psitive side, the rati f undetected t detected vilatins suggests that much can be accmplished with existing resurces, if we use thse resurces as efficiently as pssible. By just being able t imprve detectin skills f law enfrcement fficers we culd experience an increase in the arrest/vilatin rati f 4-in-2000 withut any increase in cntacts. PHYSIOLOGY OF ALCOHOL A BRIEF OVERVIEW OF ALCOHOL Alchl is the mst abused drug in the United States. "Alchl" is the name given t a family f clsely related and naturally-ccurring chemicals. Each f the chemicals that is called an "alchl" is made up f mlecules that cntain a single xygen atm and varying numbers f hydrgen and carbn atms. The simplest alchl has nly ne carbn atm and fur hydrgen atms. The next alchl has tw carbns and six hydrgens. The third alchl has three carbns and eight hydrgens. The next ne in the "chain" has ne mre carbn and tw mre hydrgen atms than the ne befre. That is hw the alchls differ frm ne anther. Alchls are mlecularly very similar and prduce similar effects. They prduce intxicating effects when ingested int the human bdy. Only ne f them is meant fr human cnsumptin. Hwever, when ingested in substantial quantities it can cause death. The ingestible alchl is knwn as ethyl alchl, r ethanl. Its chemical abbreviatin is ETOH. The "ET" stands fr "ethyl" and the "OH" represents the single xygen atm and ne f the hydrgen atms, bnded tgether in what chemists refer t as the "hydrxy radical". Ethanl is the variety f alchl that has tw carbn atms. II-13

28 Tw f ethanl's best knwn analgs are methyl alchl (r methanl), cmmnly called "wd alchl", and isprpyl alchl (r isprpanl), als knwn as "rubbing alchl". Ethanl is what interests us, because it is the kind f alchl that features prminently in impaired driving. Ethanl is beverage alchl, the active ingredient in beer, wine, whiskey, liqurs, etc. Ethanl prductin starts with fermentatin. That is a kind f decmpsitin in which the sugars in fruit, grains and ther rganic materials cmbine with yeast t prduct the chemical we call ethanl. This can ccur naturally, as yeast spres in the air cme int cntact with decmpsing fruit and grains. Hwever, mst f the ethanl in the wrld didn't ferment naturally, but was prduced under human supervisin. When an alchlic beverage is prduced by fermentatin, the maximum ethanl cntent that can be reached is abut 14%. At that cncentratin, the yeast dies, s the fermentatin stps. Obtaining a higher ethanl cntent requires a prcess called distillatin. This invlves heating the beverage until the ethanl "bils ff", then cllecting the ethanl vapr. It is pssible t d this because ethanl bils at a lwer temperature than des water. Distilled spirits is the name we give t high-ethanl-cncentratin beverages prduced by distillatin. These include rum, whiskey, gin, vdka, etc. The ethanl cncentratin f distilled spirits usually is expressed in terms f prf, which is a number crrespnding t twice the ethanl percentage. Fr example, an 80-prf beverage has an ethanl cncentratin f 40 percent. Over the millennia during which peple have used and abused ethanl, sme standard-size servings f the different beverages have evlved. Beer, fr example, is nrmally dispensed in 12-unce servings. Since beer has an ethanl cncentratin f abut fur percent, the typical bttle r can f beer cntains a little less than ne-half unce f pure ethanl. A standard glass f wine has abut fur unces f liquid. Wine is abut 12 percent alchl, s the glass f wine als has a bit less than ne-half unce f ethanl in it. Whiskey and ther distilled spirits are dispensed by the "sht glass", usually cntaining abut ne and ne-quarter unce f fluid. At a typical cncentratin f frty percent ethanl (80-prf), the standard sht f whiskey has apprximately ne-half unce f ethanl. Therefre, as far as their alchlic cntents are cncerned, a can f beer, a glass f wine and a sht f whiskey are all the same. II-14

29 PHYSIOLOGIC PROCESSES Ethanl is a Central Nervus System Depressant. It desn't affect a persn until it gets int their central nervus system, i.e., the brain, brain stem and spinal crd. Ethanl gets t the brain by getting int the bld. In rder t get int the bld, it has t get int the bdy. There are actually a number f different ways in which ethanl can get int the bdy. It can be inhaled. Ethanl fumes, when taken int the lungs, will pass int the bldstream and a psitive bld alchl cncentratin (BAC) will develp. Hwever, prlnged breathing f fairly cncentrated fumes wuld be required t prduce a significantly high BAC. Ethanl culd als be injected, directly int a vein; it wuld then flw with the bld back t the heart, where it wuld be pumped first t the lungs and then t the brain. And, it culd be inserted, as an enema, and pass quickly frm the large intestine int the bld. But nne f these methds are f any practical significance, because alchl is almst always intrduced int the bdy rally, i.e., by drinking. Absrptin Once the ethanl gets int the stmach, it has t mve int the bld. The prcess by which this happens is knwn as absrptin. One very imprtant fact that pertains t alchl absrptin is that it desn't have t be digested in rder t Getting the ethanl ut f the stmach and int the bld Pylrus Stmach Walls 20% 80% Stmach Walls Stmach Walls mve frm the stmach t the bld. Anther very imprtant fact is that alchl can pass directly thrugh the walls f the stmach. These tw facts, taken tgether, mean that -- under the right circumstances -- absrptin f alchl can be accmplished fairly quickly. The ideal circumstance fr rapid absrptin is t drink n an empty stmach. When the alchl enters the empty stmach, abut 20 percent f it will make its way directly thrugh the stmach walls. The remaining 80 percent will pass thrugh the base f the stmach and enter the small intestine, frm which it is readily absrbed int the bld. Because the bdy desn't need t digest the alchl befre admitting it int the bldstream, the small intestine will be pen t the alchl as sn as it hits the stmach. But what if there is fd in the stmach? Suppse the persn has had smething t eat shrtly befre drinking, r eats fd while drinking; will that affect the absrptin f alchl? II-15

30 Yes it will. Fd has t be at least partially digested in the stmach befre it can pass t the small intestine. When the brain senses that fd is in the stmach, it cmmands a muscle at the base f the stmach t cnstrict, and cut ff the passage t the small intestine. The muscle is called the pylrus, r pylric valve. As lng as it remains cnstricted, little r nthing will mve ut f the stmach and int the small intestine. If alchl is in the stmach alng with the fd, the alchl will als remain trapped behind the pylrus. Sme f the alchl trapped in the stmach will begin t break dwn chemically befre it ever gets int the bld. In time, as the digestive prcess cntinues, the pylrus will begin t relax, and sme f the alchl and fd will pass thrugh. But the verall effect will be t slw the absrptin significantly. Because the alchl nly slwly gets int the bld, and because the bdy will cntinue t prcess and eliminate the alchl that des manage t get in there, the drinker's BAC will nt climb as high as it wuld have if he r she had drunk n an empty stmach. Distributin Once the alchl mves frm the stmach int the bld, it will be distributed thrughut the bdy by the bld. Alchl has an affinity fr water. The bld will carry the alchl t the varius tissues and rgans f the bdy, and will depsit the alchl in them in prprtin t their water cntents. Brain tissue has a fairly high water cntent, s the brain receives a substantial share f the distributed alchl. Muscle tissue als has a reasnably high water cntent, but fat tissue cntains very little water. Thus, very little alchl will be depsited in the drinker's bdy fat. This is ne factr that differentiates alchl frm certain ther drugs, ntably PCP and THC, which are very sluble in fat. The affinity f alchl fr water, and its lack f affinity fr fat, helps explain an imprtant difference in the way alchl affects wmen and men. Pund fr pund, the typical female's bdy cntains a gd deal less water than des the typical man's. This is because wmen have additinal adipse (fatty) tissue, designed in part t prtect a child in the wmb. A Swedish pineer in alchl research, E.M.P. Widmark, determined that the typical male bdy is abut 68% water, the typical female nly abut 55%. Thus, when a wman drinks, she has less fluid -- pund fr pund -- in which t distribute the alchl. If a wman and a man wh weighed exactly the same drank exactly the same amunt f alchl under the same circumstances, her BAC wuld climb higher than his. When we cuple this t the fact that the average wman is smaller than the average man, it becmes apparent that a given amunt f alchl will cause a higher BAC in a wman than it usually will in a man. II-16

31 Eliminatin As sn as the alchl enters the bld stream, the bdy starts trying t get rid f it. Sme f the alchl will be directly expelled frm the bdy chemically unchanged. Fr example, sme alchl will leave the bdy in the breath, in the urine, in sweat, in tears, etc. Hwever, nly a small prtin (abut 2-10%) f the ingested alchl will be directly eliminated. Mst f the alchl a persn drinks is eliminated by metablism. Metablism is a prcess f chemical change. In this case, alchl reacts with xygen in the bdy and changes, thrugh a series f intermediate steps, int carbn dixide and water, bth f which are directly expelled frm the bdy. Mst f the metablism f alchl in the bdy takes place in the liver. An enzyme knwn as alchl dehydrgenase acts t speed up the reactin f alchl with xygen. The speed f the reactin varies smewhat frm persn t persn, and even frm time t time fr any given persn. On the average, hwever, a persn's bld alchl cncentratin -- after reaching peak value -- will drp by abut per hur. Fr example, if the persn reaches a maximum BAC f 0.15, it will take abut ten hurs fr the persn t eliminate all f the alchl. Fr the average-sized male, a BAC f is equivalent t abut tw-thirds f the alchl cntent f a standard drink (i.e., abut tw-thirds f a can f beer, r glass f wine r sht f whiskey). Fr the average-sized female, that same BAC wuld be reached n just ne-half f a standard drink. S the typical male will eliminate abut tw-thirds f a drink per hur, while the typical female will burn up abut ne-half f a drink in that hur. We can cntrl the rate at which alchl enters ur bldstream. Fr example, we can gulp dwn ur drinks, r slwly sip them. We can drink n an empty stmach, r we can take the precautin f eating befre drinking. We can chse t drink a lt, r a little. But nce the alchl gets int the bld, there is nthing we can d t affect hw quickly it leaves. Cffee wn't accelerate the rate at which ur livers burn alchl. Neither will exercise, r deep breathing, r a cld shwer. We simply have t wait fr the prcess f metablism t mve alng at its wn speed. DOSE-RESPONSE RELATIONSHIPS Peple smetimes ask, "hw 'high' is 'drunk'?" What is the "legal limit" fr "drunk driving"? Hw much can a persn drink befre becming "impaired"? II-17

32 There is n simple answer t these r similar questins, except t say that any amunt f alchl will affect a persn's ability t drive t sme degree. It is true that the laws f nearly all States establish a BAC limit at which it is explicitly unlawful t perate a vehicle. In mst cases, that "limit" is either 0.08 r 0.10 BAC. But every State als makes it unlawful t drive when "under the influence" f alchl, and the law admits the pssibility that a particular persn may be under the influence at much lwer BACs. Hw much alchl des smene have t drink t reach these kinds f BACs? Obviusly, as we've already seen, it depends n hw much time the persn spends drinking, n whether the persn is a man r a wman, n hw large the persn is, n whether the drinking takes place n an empty stmach, and n certain ther factrs. But let's take as an example a 175-pund man. If he drinks tw beers, r tw shts f whiskey, in quick successin n an empty stmach, his BAC will climb t slightly abve Tw mre beers will bst him abve One mre will push him ver In ne respect, then, it desn't take very much alchl t impair smene: "a cuple f beers" can d it. But in anther respect, when we cntrast alchl with virtually any ther drug, we find that impairment by alchl requires a vastly larger dse than des impairment by the thers. Cnsider exactly what a BAC f 0.10 means. Bld alchl cncentratin is expressed in terms f the "number f grams f alchl in every 100 milliliters f bld". When we find that a persn has a BAC f 0.10, that means that there is ne-tenth (0.10) f a gram f alchl in any given 100 milliliter sample f bld. One-tenth f a gram is equal t ne hundred milligrams (a milligram is nethusandth f a gram). S, at a BAC f 0.10, the persn has 100 milligrams f alchl in every 100 milliliters f bld, r exactly ne milligram per milliliter. Nte: The term BAC is used in the manual. Hwever, it shuld be understd t refer t either Bld Alchl Cncentratin (BAC) r Breath Alchl Cncentratin (BrAC) depending n the legal requirements f the jurisdictin. II-18

33 TEST YOUR KNOWLEDGE INSTRUCTIONS: Cmplete the fllwing sentences. 1. The average DWI vilatr cmmits that vilatin times a year. 2. In typical enfrcement jurisdictins ne DWI vilatin in results in arrest. 3. In the Frt Lauderdale study, plice fficers arrested percent f the drivers they cntacted whse BACs were.10 t Name three different chemicals that are alchls. Which f these is beverage alchl, intended fr human cnsumptin? What is the chemical symbl fr beverage alchl? 5. What is the name f the chemical prcess by which beverage alchl is prduced naturally? What is the name f the prcess used t prduce highcncentratin beverage alchl? 6. Multiple Chice: "Bld alchl cncentratin is the number f f alchl in every 100 milliliters f bld." A. grams B. milligrams C. nangrams 7. True r False: Pund-fr-pund, the average wman cntains mre water than des the average man. 8. What d we mean by the "prf" f an alchlic beverage? 9. Every chemical that is an "alchl" cntains what three elements? 10. True r False: Mst f the alchl that a persn drinks is absrbed int the bld via the small intestine. 11. What is the name f the muscle that cntrls the passage frm the stmach t the lwer gastrintestinal tract? 12. True r False: Alchl can pass directly thrugh the stmach walls and enter the bldstream. II-19

34 13. Multiple Chice: Suppse a man and a wman wh bth weigh 160 punds arrived at a party and started t drink at the same time. And suppse that, tw hurs later, they bth have a BAC f Chances are... A. he had mre t drink than she did. B. they drank just abut the same amunt f alchl. C. he had less t drink than she did. 14. In which rgan f the bdy des mst f the metablism f the alchl take place? 15. What is the name f the enzyme that aids the metablism f alchl? 16. Multiple Chice: Once a persn reaches his r her peak BAC, it will drp at a rate f abut per hur. A B C True r False: It takes abut thirty minutes fr the average 175-pund man t "burn ff" the alchl in ne 12-unce can f beer. II-20

35 SESSION III THE LEGAL ENVIRONMENT

36 SESSION III THE LEGAL ENVIRONMENT Upn successfully cmpleting this sessin, the students will be able t: State and discuss the elements f DWI ffenses. Discuss the prvisins f the implied cnsent law. Discuss the relevance f chemical test evidence. Discuss precedents established thrugh case law. CONTENT SEGMENTS LEARNING ACTIVITIES A. Basic DWI Statute: Driving While Under The Influence Instructr-Led Presentatin B. Implied Cnsent Law and Presumptins Reading Assignments C. Illegal Per Se Statute: Driving With A Prescribed Bld Alchl Cncentratin D. Preliminary Breath Testing E. Case Law Review

37 INTRODUCTION An understanding f impaired driving laws that apply in yur jurisdictin is critical t DWI enfrcement. All states (and many lcal jurisdictins) have their wn impaired driving laws. While the specific language f these laws may vary significantly, mst include the fllwing prvisins: a Basic DWI Law; an Implied Cnsent Law; an Illegal Per Se Law; a Preliminary Breath Testing Law. In the fllwing pages these fur types f impaired driving laws are discussed in detail. The illustratins prvided are drawn frm the Unifrm Vehicle Cde. Yu are respnsible fr learning whether and hw each law applies in yur jurisdictin. BASIC DWI LAW A state's basic DWI statute may be subtitled Driving While Under the Influence, r smething similar. Typically the statute describes the wh, what, where and hw f the ffense in language such as this: It is unlawful fr any persn t perate r be in actual physical cntrl f any vehicle within this state while under the influence f alchl and/r any drug. ARREST In rder t arrest smene fr a basic DWI vilatin, a law enfrcement fficer must have prbable cause t believe that all elements f the ffense are present. That is, the fficer must believe that: the persn in questin was perating r in actual physical cntrl f a vehicle (truck, van, autmbile, mtrcycle, even bicycle, accrding t specific prvisins in varius states) while under the influence f alchl, anther drug, r bth. III-1