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The Medical, Legal, and Social Aspects
of Drinking and Driving
Annotated Bibliography

Patrick Ortman
The University of Dayton School of Law
Spring 2000


Introduction

The automobile is the primary source of transportation for Americans Everyday millions of citizens depend on automobiles to carry them to and from numerous destinations They provide ease of transportation and a large degree of personal freedom While automobiles are normally safe to operate, if a driver attempts to operate his or her vehicle under the influence of alcohol the results are often deadly. In America each year 16,189 people are killed and another 327,000 are seriously injured simply because someone decided to operate their vehicle under the influence of alcohol The consumption of alcohol is a popular activity for many, most people who drink claim that alcohol helps them to relax, and promotes social interaction. While consumption of alcohol in and of itself may not be dangerous, when the mind altering properties of alcohol are combined with the potential speed and mass of an automobile, the results are to often tragic.

In order to minimize the number of individuals that are either killed or injured as a result of people operating their automobiles under the influence of alcohol, a greater understanding of the factors which precede an accident must be understood, and more emphasis must be placed on expanding the publics awareness of the physical aspects of drinking, as well as implementation of new measures to deter this behavior, along with greater enforcement of existing legal remedies.

The purpose of this bibliography to is first, promote a greater understanding of the nature of drunk driving; second, to acclimate the reader to the current legal climate regarding drunk driving, and the measures that have been taken and are being considered by legislators and judges alike;third, to gain the perspective of medical professionals, and their strategy for controlling the drunk driving problem.

Many strategies have been attempted to help combat the problem of drinking and driving, and most of which take the form of legislation. For law makers, controlling drunk driving is more difficult than simply outlawing alcohol, prohibition has been attempted but Americans are simply unwilling to give up alcohol Legislatures recognize the peoples affinity for alcohol and continue to allow responsible consumption, but to combat the problem of people drinking in an irresponsible manner they have adopted various legislation to curb activities like drinking and driving.

Possibly the most often recognized method of restricting drinking and driving is the blood alcohol concentration (BAC). The purpose of the BAC is to set a legal limit to the amount of alcohol that a person can have in their blood stream and still operate a motor vehicle. By setting the BAC at a level were people can still operate an automobile safely, it is hoped that the BAC will help prevent accidents where alcohol is a factor. Detractors of this notion usually contend that legal BAC levels are still to high, and that drivers who operate vehicles at these legal levels are not sober enough to operate their vehicle in a safe manner. Another problem with the BAC is that enforcement takes place usually after the person has been involved in a traffic accident, it is clear that just because there is a law does not necessarily mean that individuals will always follow it. Despite the potential weaknesses of legal BAC limits, they are a start in the right direction, and when combined with other measures may help to control drinking and driving.

If lowering the BAC limit is in fact effective at reducing accidents due to drunk driving, then many would argue, why not create a policy of zero tolerance. This of course does not mean that people would not be able to drink alcohol, it simple means that people can not drink alcohol and then drive a car. This concept is explored later in more detail as a potential method of solving the problem of drunk driving in this country.

Another possible solution to drunk driving is focuses primarily on younger drivers who choose to drink and drive. Many states have or are considering implementing laws which are designed to keep teenaged drivers safe on the roads. These laws include graduated licenses, which require teen drivers to gain experience before they are granted an unrestricted license. Some of the restricts include, driving during daylight hours, zero BAC limit among others. These restriction are meant to provide the safest possible environment for young drivers to learn to navigate the roads.The effectiveness of these laws of course is subject to debate, and will be coved in this annotated bibliography.

Science has show that some people do become addicted to alcohol, and for these people, the urge to drink is often overwhelming, which brings up the question of how will legal remedies designed to prevent drunk driving impact these individuals. If these people are unable to control their drinking, how should the law respond to these people when they are arrested for drinking drunk? The American legal system is based on the notion that people are responsible for those actions which they do voluntarily, and some would argue that alcoholics lack the ability to control their behavior and therefore should not be held responsible for the their actions.While this idea may sound far fetched, it is important to fully understand the nature of alcoholism as it relates to criminal liability, this issue will be discussed in greater detail later in this annotated bibliography.

Many of the efforts to combat drunk driving involve either imposing restrictions on people before they get behind the wheel or punishing them after they have been caught driving drunk. Both of these approaches focuses on the conduct of the person doing the drinking. Recently a movement has started in this country to focuses on the actions of people who may facilitate the drunk driver. Some legislation and also civil suits have focused on this aspect of prevention. The aim is to hold alcohol vendors, and in some cases social hosts, responsible for providing excessive amounts of alcohol to a person before they take to the road. In theory, placing some responsibility on the vendor or host will help to stop many accidents. There are many detractors of this idea who believe that responsibility should ultimately be with the person who decides to drink, not with the person who offers a drink. This is just one of the questions surrounding this type of liability that has yet to be completely resolved.

All of the measures brought up in this introduction to reduce the level of drinking and driving in this country will be discussed in greater detail in this annotated bibliography, along with other notable solutions. It is sincerely hoped that this bibliography will in some way help to bring the problem of drunk driving closer to the final answer.


The following articles are included in this bibliography:

Alcoholism, Intoxication, and the Criminal Law.

Confronting Drunk Driving: Social Policy For Saving Lives.

Drivers Impaired by Alcohol.

Highway Safety Act.

Lee V. Kiku Restaurant: Allocation of Fault Between an Alcohol Vendor and a Patron-What Could Happen After Providing "One More for the Road."

New Hi-Tech Systems Keeping Drunk Drivers off the Streets.

Putting a Cork on Social Host Liability: New York Rejects a Trend.

The National Clearinghouse for Alcohol and Drug Information, Impaired Driving Among Youth: Trends and Tools for Prevention, Chapter 4.


Annotations

Steven S. Nemerson, Alcoholism, Intoxication, and the Criminal Law, 10 Cardozo Law. Review. 393, (1988).

In the American criminal justice system there is a general principal that people should not be held criminally liable for acts which they did not commit voluntarily. Because mens rea is required in order for a person to be criminally liable, people have questioned whether punishing the actions of alcoholics is justifiable. The author of this article asserts that Alcoholism is a disease which follows a predictable course in the body of those afflicted. [1] According to the disease model of alcoholism, the alcoholic experiences a loss of control or an inability to abstain from alcoholic beverages.[2] According to this disease model, for affected individuals, alcohol consumption is not a voluntary action, and as a result of their consumption of alcohol, these individuals will typically become intoxicated leading to irrational behavior and many times criminal activity.[3]

If this disease model is indeed accurate, should such individuals be subject to criminal liability for actions that may fall beyond the person's realm of control? Currently, intoxicated but morally blameless alcoholics are not afforded a legally recognized excuse for their behavior. This the author claims is justified in light of the fact that innocent individuals are protected from those who would other wise commit crimes regardless of their moral blameworthiness.[4] Accordingly, it is more desirable to protect the rights of people to be free from criminal harm as opposed to the rights of those who may commit crimes involuntarily.

The author points out several possible alternatives to the current system. First, allow alcoholism to be raised as an affirmative defense that must be established by the defendant.[5] Second, there is also the possibility that a person's alcoholic state could be considered during the sentencing phase of a trial.[6]


Ross, Lawrence H., Confronting Drunk Driving: Social Policy For Saving Lives. New Haven: Yale University Press, 1992.

It may come as no surprise that the reason drunken drivers get into automobile accidents that injure and kill people is because they consume alcohol immediately before operating their vehicle.The social value placed on the consumption of alcohol in this country has a profound influence on the likelihood of people driving while under the influence of alcohol.[7] According to the author, drinking is commonly accepted and practiced by most adults, and that even moderate consumption of alcohol is sufficient to double the risk of a serious crash if combined with driving.[8] With this in mind, the author further states that approximately 20 percent of American drivers drive while legally impaired at least once annually.[9]

In response to the level and acceptability of social drinking in the United States, and the subsequent high likelihood of a person driving while impaired, the author suggests that the starting point for any reform should begin with our criminal justice system.[10] First, total percentage of individuals who would normally drive while intoxicated can be decreased via the broad threat of criminal punishment of those who violate legal standards.[11] For example, lowering the legal blood alcohol limit for those persons operating vehicles increases the chance that even moderate levels of alcohol consumption will place those persons at risk of a DUI charge if caught.[12] Likewise, by strictly enforcing current laws, the percentage of people driving while intoxicated will decrease as the likelihood of punishment and the severity of that punishment increases.

The legal system is not the only means of solving the problem of drunk driving. Possible solutions include increasing taxes on alcoholic beverages, making alcohol consumption more cost restrictive, and limiting the amount of alcohol sold nationally via pricing or manufacturing.[13] Government could even limit the sale of alcoholic beverages to certain locations where the chance of a person driving while intoxicated is decreased.[14] All of these measure in conjunction with increased involvement on behalf of the legal system could significantly decrease the number of persons driving drunk, which would in turn save lives.


Drivers Impaired by Alcohol, From the Council on Scientific Affairs Report 14, adopted by the AMA House of Delegates, June 1997

http://www.ama-assn.org/special/aos/alcohol1/policy01.htm

In this report and resolution by the American Medical Association, there was found to be a strong correlation between state imposed legal blood alcohol concentrations (BAC) and the rate of fatal crashes in that jurisdiction. The material report suggests that the lower the BAC the lower the fatality rate in that jurisdiction. The AMA believes that a policy of "zero tolerance" would significantly decrease the occurrence of fatal crashes in jurisdictions that would adopt this policy.

In response to the report, the AMA adopted several resolutions intended to decrease the rate of alcohol related automobile accidents. Of primary importance was the decision to support lower BAC levels, but not to press for immediate adoption of a Zero tolerance policy given the current lack of public or political support for such a measure. Rather than press for a zero tolerance policy, the AMA instead decided to focus on educating the physicians, public, and policy makers about the issue.

Besides this particular report, this web site contains several other resources valuable for research into the area of Drinking and driving as well as several other areas related to health care and medicine.


Highway Safety Act, 23U.S.C.A. 408 (1999).

Under this act, states will be granted federal funding for implementation of highway traffic safety measures which are designed to reduce the incidence of alcohol related auto accidents. 408 (a). The Act outlines general spending procedures which are widely discretionary for the states. 408 (1-2). Under the statute, States are also required to provide for mandatory suspension of operators license of any person committing an alcohol related offense for the first time. 408 (3)(A). In addition to mandatory license suspension for the first time offender, states are required to impose either one hundred hours of community service or a minimum prison sentence of no less than 48 consecutive hours. 408 (3).This suspension procedure applies to those individuals who submit to either a blood alcohol test, breath test, and those individuals who refuse to submit to any test. Any individual convicted of a second offense within five years of the first conviction under this statute, shall receive not less than ten days in prison and license revocation for not less than one year.

The states are also required to establish a state wide record keeping system which will help to identify repeat offenders of this statute. 408 (f)(1).States in order to receive funding must adopt a statewide minimum drinking age of not less than twenty-one years of age. 408 (f)(6). For those persons who have already been identified as offenders, the state is to create rehabilitation facilities designed to help prior offenders and or to research methods of detecting drivers who have been drinking. 408 (f)(8).


Lee V. Kiku Restaurant: Allocation of Fault Between an Alcohol Vendor and a Patron-What Could Happen After Providing "One More for the Road", 17 American Journal of Trial Advocacy 269

This Journal Article discusses the legal consequences and potential liability of a vendors to patrons and third parties injured by patrons who drive drunk after leaving the vendor's establishment.According to the article, there are signs of a change in the common law view that injuries to patrons and third parties are the result of consumption of alcohol and not furnishing.[15] The Article relies heavily on the New Jersey Supreme Court case Lee V. Kiku Restaurant in which three patrons of Kiku restaurant were served alcohol until the point of intoxication, the patrons then left the restaurant in plaintiff's car, in which they were later involved in an automobile accident.[16] The Court reasoned that both the drunken driver and the vendor should be held responsible for injuries caused by the accident.[17] According to the article, this decision seems in keeping with the trend toward broadening liability in an attempt to curb the incidence of automobile fatalities as a result of alcohol consumption.

This article is a good review of the comparative negligence theory used to find vendor liability, and makes a good argument that such a policy will help to limit alcohol consumption before people drive.


New Hi-Tech Systems Keeping Drunk Drivers off the Streets

http://www.msnbc.com/local/kshb/172783.asp

A new technology may be the key to keeping convicted drunk drivers from becoming repeat offenders. A company named Guardian Interlock has developed a technology which is installed in the vehicle of a person who has just been convicted of driving under the influence. According to Guardian Interlock their creation, the Ignition Interlock, requires the operator to blow into the unit in order for the car to be started, and once started the unit must be blown into every thirty minutes. The unit acts as a portable breath alcohol test, and if at any time the unit sense alcohol on the persons breath, the unit will automatically disable the vehicle.

Besides being a preventative measure, the unit also stores the information that it gathers which is then downloaded for inspection by probation officers. Any violation detected by the unit can mean that the offender may be subject to greater punishment. Probably the most appealing aspect of the unit for taxpayers is that the unit is paid for by the offender. This however does bring up one distinct problem with the unit, what to do with those people who are unable to pay the almost $60 per month to be monitored.Because most persons who are convicted of DUI earn approximately $22,000 annually, the unit may not be an option for many convicted drunk drivers. In spite of this, a few communities have contemplated making the instillation of the unit mandatory for those persons who are convicted of a second drunk driving offense.


Putting a Cork on Social Host Liability: New York Rejects a Trend ,55 Brooklyn Law Review 995, 1989.

One method of combating the drunk driving problem has been to hold people other than the drunk driver responsible. The central issue of this article is, should social host have a legal duty imposed upon them to care for individuals who may visit their residence. The author cites a New York case, D'Amico v. Christie, which stated that social guests should not be held liable when one of their guests consumes alcohol while at the host's residence and then is later involved in a traffic accident. The author argues following the logic of D'Amico, that the social host may have a moral obligation to care for individuals who are guests, but that it is bad social policy to hold that there is a legal obligation. Because alcohol is legal to purchase it should not be illegal to serve to adults.

This article is important because it clarifies the issue of finding proximate cause with the social hosts which is becoming an increasingly more litigated matter in many courts. The issue is still undecided in many courts, for this reason it is important to understand the pros and cons of this type of policy.


The National Clearinghouse for Alcohol and Drug Information, Impaired Driving Among Youth: Trends and Tools for Prevention, Chapter 4.

http://www.health.org/pubs/qdocs/CSAP3P19.HTM

This Technical Report address the issue of youth operating automobiles under the influence of alcohol, and Chapter 4 specifically looks at the possibility of states implementing graduated licensing requirements as a method of controlling the incidence of youths drinking and driving. According to the report, a graduated license is "a system designed to ease beginning drivers into the traffic environment under controlled exposure to progressively more difficult driving experiences."Because young teen drivers are almost eight times more likely then adult drivers to be involved in an accident based on the same number of miles driven, many see graduated licensing programs as one method to familiarize teen drivers with the rigors of driving, without many of distractions which may affect their performance.

Graduation can take many forms such as limiting teens to driving during only daylight hours, limiting the number of occupants, passing road test, etc. During this period of graduation, there is a zero-tolerance restriction against driving with any level of alcohol in the drivers system. The report finally examines different jurisdictions to determine if those with graduated licensing have experienced reduced rate of automobile fatalities among teen drivers. The Data clearly indicates that there is a significant correlation between graduated licensing and a lower fatality rate among teen drivers.

While the article does show a decrease in fatalities associated with graduated licensing, it is limited in the fact that it does not directly address whether graduated licenses lower the incidence of drunken driving among teen drivers. Even though it is not stated explicitly in the report, it seems logical that measures such as limiting teen drivers to daylight hours, would reduce the incidence of drunk driving, simply due to the fact that the majority of drinking, especially social, occurs in the evening. For this reason alone, graduated licenses seem like a good option for states interested in reducing the rate of teen drunk driving.


END NOTES


[1] Steven S. Nemerson, Alcoholism, Intoxication, and the Criminal Law, 5

[2] Id. at 6

[3] Id. at 15

[4] Id. at 102

[5] Id. at 72

[6] Id. at 80

[7] Ross, Lawrence H., Confronting Drunk Driving, 5

[8] Id. at 6

[9] Id at 27

[10] Id. at 43

[11] Id at 47

[12] Id at 57

[13] Id. at 77

[14] Id. at 80-116

[15] Allocation of Fault Between an Alcohol Vendor and a Patron, 2

[16] Id. at 3

[17] Id. at 4

 

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The University of Dayton School of Law
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Email: randall@udayton.edu

 

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