REDUCING VERMONT S DUI PER SE LIMIT Richard A. King, B.A.

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1 ISSN: (ONLINE) REDUCING VERMONT S DUI PER SE LIMIT Richard A. King, B.A. ABSTRACT This article examines the appropriateness of reducing Vermont s DUI Per Se limit from.08 to.05 based upon current practices, policies, and laws. This article will address the issue of driving under the influence of alcohol only and does not address the issue of driving under the influence of a drug other than alcohol, or driving under the combined influence of drugs and alcohol. Specifically, the research for this article addresses the issue of reducing the current per se limit from.08 BAC to.05 BAC as recommended by the National Traffic Safety Board. The research defines the current procedures for detecting, apprehending, and prosecuting the alcohol-impaired driver. This article then takes the research a step further and determines if current practices and procedures can be extrapolated from the.08 BAC to the.05 BAC. The current techniques utilized in the detection, enforcement, and prosecution of DUI offenders presents several challenges at the.05 BAC level. Keywords: Driving Under the Influence, Per Se Limit, Standardized Field Sobriety Tests

2 REDUCING VERMONT S DUI PER SE LIMIT Richard A. King, B.A. Driving under the influence of alcohol continues to be a national problem. Success in addressing this safety issue has plateaued. Since 1995, even with the decline of fatalities, nearly one in three highway fatalities still involve an alcohol-impaired driver. These deaths are preventable, yet even the most concerted efforts have not kept thousands of lives from being lost each year. If traditional methods are no longer reducing the problem, new and possibly challenging initiatives must be considered (Board, 2013) On June 6, 2013, the National Traffic Safety Board (NTSB) issued its safety report entitled Reaching Zero: Actions to Eliminate Alcohol-Impaired Driving. This report outlined several strategies designed to eliminate alcohol-impaired vehicle crashes. This article examined the NTSBs recommendation to reduce the per se limit for driving under the influence (DUI) from.08 Blood Alcohol Concentration (BAC) to.05 (BAC). It is important to note that this article is based on the current practices and laws from the State of Vermont and is written from a practitioner s perspective. Initial research revealed several barriers to lowering the states per se limit to.05 BAC. The National Highway Transportation Safety Administration (NHTSA) conducted three field validation studies of the Standardized Field Sobriety Test (SFST). The purpose of the validation studies was to determine if officers in the field could accurately administer the SFSTs and identify drivers with a BAC at or above.08. None of the validation studies were initially undertaken to validate the SFST for BACs below.08, and to-date no SFST has been validated to lower BAC levels. The next issue was a lack of visible signs of impairment at lower BAC levels. Tolerance to alcohol allowed many heavy drinkers to go undetected; Over time, drinkers become desensitized to the effects of alcohol; that is, they need to drink more and more to attain the same intoxication effects. Long- term drinkers may feel more stimulation and less sedation after drinking than do rookie drinkers. Heavy drinkers may maintain exceptionally high blood alcohol levels, including levels that may be deadly in novice drinkers. In one study, about a quarter of long-term drinkers with blood alcohol concentration (BAC) of 0.20 or higher did not appear to be clinically intoxicated. In another study, more than half of the drinkers with blood alcohol levels over 0.30 showed few signs of clinical intoxication. (Hernandez, 2011)

3 Many alcoholics who were admitted to a detoxification unit displayed normal speech, gait, and unimpaired ability to undress, even with BACs of.35 or greater. Signs of impairment at lower BACs diminished greatly and are extremely difficult to identify if they are present at all. (Williams, 2000) The current detection process is extremely accurate and reliable at the DUI per se limit of.08. The detection process was developed through decades of research from various government and non-government organizations. The research was undertaken in response to traffic crashes and fatalities caused by impaired drivers. The DUI detection process in use today was developed with the per se DUI limit of.08 as the target. No serious research has been developed that targets a per se DUI limit of.05. All validated driving cues and SFST cues are validated to the.08 level and do not appear to have the ability to be extrapolated to the.05 level. In fact, the only SFST cue that shows the possibility of extrapolation to the.05 BAC level is the Horizontal Gaze Nystagmus (HGN) with altered scoring. HGN is an involuntary, jerkiness in the eyes, as they gaze to the side. A large part of DUI detection rests on an officer s ability to recognize signs and symptoms of impairment. At lower BAC levels, many drivers will not exhibit classic signs of impairment (i.e., blood shot eyes, watery eyes, slurred speech, fumbling with documents etc.). To help overcome this obstacle, the NTSB recommended the use of Preliminary Breath Test (PBT) and the Passive Alcohol Sensors (PAS). However, these recommendations overlooked state and federal law regarding search and seizure. While the use of the PBT and the PAS devices in the European Union and other countries is required, U.S. citizens are afforded protection against unlawful and warrantless searches. Without consent of the driver, a sample of breath cannot be taken without a warrant. This is a very basic, yet fundamental right afforded by the State and U.S. Constitutions. Absent signs and symptoms of impairment, a driver cannot be routinely ordered from their vehicle. However, the U.S. Supreme Court affirms the right of law enforcement officers to routinely order drivers from the vehicle citing officer safety; The order to get out of the car, issued after the respondent was lawfully detained, was reasonable, and thus permissible under the Fourth Amendment. The State's proffered justification for such order -- the officer's safety -- is both legitimate and weighty, and the intrusion into respondent's personal liberty occasioned by the order, being, at most, a mere inconvenience, cannot prevail when balanced against legitimate concerns for the officer's safety. (Pennsylvania v. Mimms, 1977)

4 In 2003, this issue was raised in Vermont v. Sprague. In this case the Vermont Supreme Court ruled; That a police officer must have a reasonable basis to believe that the officer s safety, or the safety of others, is at risk or that a crime has been committed before ordering a stopped driver out of a stopped vehicle. (Schurr, 2008) (Emphasis added) A police officer s inability to routinely order drivers from their vehicles reduces the amount of face time and limits the opportunity to detect alcohol impairment. The former routine of asking a driver to sit in the police vehicle while the officer fills out paperwork is no longer permissible without a reason. If Vermont addresses the challenges and enacts a lower DUI per se limit of.05, additional challenges may include criminal justice overload. It is reasonable to believe that a lower per se limit will result in more DUI arrests. With more arrests come more, arraignments, hearings, motions, trials, and backlog. Elizabeth Kruska, Esq. stated that if the lower per se limit law be enacted, she would encourage her clients arrested with a low BAC to demand a jury trial. The logic is quite simple; finding a jury of 12 individuals who would agree that someone is drunk at a BAC of.05 would be difficult, absent any visible signs of impairment. It is difficult to get a DUI conviction without some type of visible or audible signs of impairment regardless of the per se limit (Kruska, 2013). Based on the included research and literature, it is the opinion of the author that reducing the DUI per se limit from.08 to.05 would be counterproductive. The reduction in the DUI BAC per se limit seems unenforceable without extreme state and federal legislative intervention and funding. Instead of lowering the BAC level from.08 to.05, it is suggested that other programs currently in place be researched (e.g., High Visibility Enforcement (HVE), DUI Task Forces, DUI Courts, interlock devices, and accelerated license suspension). Funding may be better-spent enhancing current programs rather than spending money re-writing, re-evaluating and revalidating the entire DUI program. The following programs were researched and recommendations have been made to help reduce DUIs and alcohol-impaired driving; High Visibility Enforcement (HVE) is a well-established countermeasure associated with both general and specific DUI deterrence (Board, 2013). The Vermont Governor s Highway Safety Program (GHSP) oversees the HVE program. Vermont s GHSP manages the Any Time DUI grants and ensures grantees are in compliance with the parameters of the grant as established by NHTSA. This grant funds additional DUI patrol shifts in an effort to target impaired drivers. HVE integrates media campaigns, enforcement efforts, and swift and certain penalties for DUI offenders. The NTSB has concluded that HVE is an effective countermeasure to deter impaired driving (Board, 2013). Additionally, it is recommended that officers undergo a bi-annual SFST update that includes legal updates to ensure standardization of the DUI program. Several states have enacted what can best be described as tiered per se limits, meaning that the per se limits are decreased for subsequent DUI arrests. In the State of Maine, legislation was passed that reduced the per se limit for DUI from.10 to.05 on a second or subsequent DUI arrest. Research was conducted that calculated changes in the proportions of fatal crashes involving drivers with prior DWI convictions. The research was conducted from the six-year

5 period before enactment of the law to the six-year period following enactment of the law, comparing Maine with the other New England states. The research revealed that in Maine, the proportion of fatal crashes involving drivers with recorded prior DWI convictions declined 25% following passage of the 0.05 DWI law, while the proportion rose in the rest of New England during the same timeframe (Hingson, Heeren, & Winter, 1988). Recommendations In addition to current strategies used in Vermont, the author recommends several strategies to combat impaired driving. First, implement a tiered per se limit for repeat offenders. The DUI per se limit for a first offense is set at.08, the second offense per se limit would be set at.05, and a third or subsequent DUI offense would have a per se limit of.02 (i.e., zero tolerance). Accelerated license suspensions require a preliminary hearing within 21 days of the offense and civil license suspension sanctions are tiered (90 days, 18 months, life). The associated accelerated license suspensions would remain the same for each offense; however, compulsory breath tests may be required for second and subsequent offenses. Vermont may benefit from enacting the civil offense of Driving While Ability Impaired (DWAI). The offense of DWAI is issued when a person operates a motor vehicle with a BAC between.05 and.08 as measured with a preliminary breath test (PBT). Because the offense of DWAI is a civil ticket, the burden of proof is much lower than that of a criminal offense (preponderance of the evidence v. beyond a reasonable doubt). The offense of DWAI could be treated the same as a case of underage drinking. A refusal to submit to a PBT would generate the same sanctions as if the driver had provided a PBT with the results between.05 and.08. This DWAI ticket is recommended as it provides sanctions (e.g., fines) at a lower BAC level, which may discourage drivers from operating a vehicle after alcohol consumption. Studies have shown that nearly 70% of DUI first offenders with lower BACs will not re-offend (Steinberg, 2013). DWAI has the potential to reduce criminal DUI offenses, because it provides sanctions at both the.05 to.08 BAC levels. About the Author: Richard King is a Patrol Sergeant with the Ludlow, VT Police Department. Sgt. King is a nationally certified Standardized Field Sobriety Test Instructor, Drug Recognition Expert, and Forensic Interviewer (e.g., Child and Adult). Sgt. King is state certified as an adjunct professor by the Vermont Criminal Justice Training Council teaching DUI Enforcement and Advanced Roadside Impaired Driving Enforcement (ARIDE). Sgt. King is the project manager for all Governor Highway Safety Programs within his department and is a member of the Windsor County Special Investigations Unit (SIU) for child abuse and sex crimes. Sgt. King earned his Bachelor of Arts degree from the College of Saint Joseph (Rutland, VT.) with distinction in Organizational Leadership with concentrations in Criminal Justice and Education. In 2012, he was accepted into the Norwich University Graduate School, majoring in Public Administration (Law Enforcement Track) and is a member of Pi Alpha Alpha, the National Honor Society for Public Administration and Public Policy.

6 References Board, N. T. (2013). Reaching Zero: Actions to Eliminate Alcohol-Impaired Driving. Washington, DC: National Traffic Safety Board. Hernandez, S. (2011, November 18). Alcohol Tolerance and Blood Alcohol Levels. Retrieved from The Hernandez Law Firm, PC: Hingson, R., Heeren, T., & Winter, M. (1988). Effects of Maine's 0.05% Legal Blood Alcohol Level fro Drivers with DWI Convictions. Boston: Public Health Reports. Kruska, E. (2013, Sept 11). Defense Attorney. (R. A. King, Interviewer) Pennsylvania v. Mimms, 434 U.S. 106 (US Supreme Court December 5, 1977). Sand. (2013, September 13). Senior Policy and Legal Advisor. (R. A. King, Interviewer) Schurr, S. (2008, February). State v. Sprague Vermont DUI Case Law Update. Montpelier, VT: Stuart Schurr. Steinberg, M. H. (2013, January 14). Colorado DUI - DWAI Study Predicts Re-offending Based On Blood Alcohol Level. Retrieved from Colorado Criminal Lawyer Blog: Williams, A. F. (2000). Issues and Methods in the Detection of Alcohol and Drugs. Washington, DC: Transportation Research Board.

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