Drunken-driving accidents increase over New Year’s holiday

December 29, 2008

By Jon Savelle

The Christmas and New Year’s holiday period is the deadliest time of year for drunken-driving accidents, according to recent federal safety data.

In its nationwide study of drunken-driving deaths between 2001 and 2005, the National Highway Traffic Safety Administration found a daily average of 36. But that jumps to 45 around Christmas, and to 54 during the New Year’s holiday.The data adds urgency to local efforts to keep drunks off the road via campaigns that promise swift police action against drunk drivers.

A patrol officer first has to see some kind of driving infraction, said Issaquah Police Cmdr. Scott Behrbaum. It might be speeding, wandering from lane to lane, headlights off, or some other action that justifies stopping the driver.

When the driver is contacted, the officer looks for telltale signs of inebriation.

“We’re looking for slurring of words, slow movements, fumbling for paperwork or their driver’s license,” Behrbaum said. “And the smell of alcohol emanating from the person.”

A driver’s eyes also offer clues. Unusual pupil size may indicate alcohol or drug use, including prescription drugs.

“Once we have taken a look at those different things, we ask if they want to participate in the standard field sobriety tests,” Behrbaum said.

If cooperative, the driver will be asked to stand on one leg, or walk and turn around, or stand still for something called the horizontal gaze nystagmus test. This last item is a relatively new addition to the officer’s tool kit.

It is also very simple. Behrbaum explained that in normal vision, a person’s eye movements are smooth and controlled. But when under the influence of alcohol, the movement becomes jerky.

Should enough of these indicators indicate impairment, the driver will be taken to the police station. There, officers administer two breath tests to determine blood alcohol concentration.

Behrbaum noted that officers can administer such a test in the field, but the results are not admissible as evidence in court. Tests at the station are conducted using state certified equipment under controlled conditions, and their results can be used for prosecution.

A person with a blood alcohol concentration higher than .08 percent is considered legally drunk. Some individuals register up to three times that figure, incident reports show.

Drivers may refuse to take any of the field sobriety tests, but a breath test at the station is required by the state Department of Licensing. Those who refuse will automatically have their driver’s licenses suspended.

Police incident reports routinely provided to The Press include arrests for drunken driving, and they include the results of the breath tests. Often, the two tests yield slightly different numbers.

“It depends on the ability of the person to provide a consistent breath sample,” Behrbaum said. “If people are unable to provide breath samples, we can go to the hospital and draw blood.”

At that point, a driver has little say in the matter. But anyone who is stopped on suspicion of drunken driving does have legal rights.

Issaquah attorney Joshua Schaer specializes in their defense. He said there are several things a person can do to minimize the legal damage they do to themselves. One is to always be polite and cooperative with the officer — although he acknowledged that this might be asking a lot of someone who is actually drunk.

Another good idea is to call an attorney from the police station.

“If a person can’t reach their attorney, they are entitled to speak with the on-call public defender,” Schaer said.

There is no charge to speak with the defender, and the advantage is that a driver obtains advice that specifically pertains to the arrest.

As a general rule, Schaer suggests that drivers submit to the field sobriety tests even though they are not required. Someone who refuses could have it backfire in court.

“If a person doesn’t take them, and gets charged, the argument is that they knew they wouldn’t pass and therefore they didn’t take them,” Schaer said.

Another legal oddity, in Schaer’s opinion, is a new law, enacted by the Legislature in early 2008 and taking effect Jan. 1, that allows something called an interlock license. Schaer explained that someone whose license has been suspended for drunken driving may obtain a temporary license if an ignition interlock is used. Such a device requires the driver to self-administer a breath test in the vehicle, and if sober, he or she may start the car.

The trouble is, the driver may have been impaired by drug use, not alcohol. And the device cannot detect drug use.

“I have seen people who took Ambien and sleepwalked themselves into a DUI,” Schaer said. “Now, either you are going to lose your license or blow into this device.

“These are fixes the Legislature is going to have to look at, at some point.”

Drivers who apply for the interlock license must pay all related costs for the device and monitoring.

The Legislature already recognized, in writing the law, that someone who makes a one-time mistake and gets arrested for drunken driving should not be penalized as harshly as a repeat offender. This is where the lawyer can argue to the defendant’s benefit.

“Very few cases go to trial,” Schaer said. “Most people resolve it by way of a plea bargain. If not a guilty plea, then it is by some agreement, like deferred prosecution or treatment. There are a lot of options.”

This has a practical explanation, he added. There are not enough police, courts and jails to prosecute every case. The justice system would be overwhelmed.

“Prosecutors cutting people breaks is not a bad thing from a systemic point of view,” Schaer said.

Prosecutors have a different perspective. King County Deputy Prosecutor Maggie Nave, who leads DUI prosecutions in the district court for unincorporated areas, said state law sets minimum mandatory jail sentences for those convicted of drunken driving.

“This is serious enough that the Legislature clearly wants people to spend some time in jail,” she said. “I’d say we are aggressive. We always ask for the mandatory minimums, and we would just increase from there.”

Each year, Nave’s unit files approximately 5,000 DUI cases. She said there is no reason to believe that the incidence of drunken driving is higher here than elsewhere, but it is still a large number.

“It is one of the few crimes that is committed generally by people who are otherwise law-abiding citizens,” she said.

Drunken driving exacts a grim toll. The data shows that, on average, during the last two weeks of December, four out of 10 traffic fatalities involve alcohol. And drivers ages 21 to 24 are more at risk than any other group.

Reach Reporter Jon Savelle at 392-6434, ext. 234, or jsavelle@isspress.com. Comment on this story at www.issaquahpress.com.

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