enforcement of drunken driving laws in cases involving injured intoxicated drivers

INJURY PREVENTION/ORIGINAL CONTRIBUTION

Enforcement of Drunken Driving Laws in Cases

Involving Injured Intoxicated Drivers

From the Department of Emergency Medicine, Carolinas Medical Center, Charlotte, North Carolina.

Received for publication March 8, 1995. Revision received July 5, 1995. Accepted for publication July 24, 1995.

Presented at the Society for Academic Emergency Medicine Annual Meeting, Toronto, Ontario, May I992.

Copyright © by the American College of Emergency Physicians.

Jeffrey W Runge, MD

Cheryl L Pulliam Janet M Carter

Michael H Thomason, MD

Study objective: To determine the frequency of driving while impaired (DWI) charges among alcohol-intoxicated drivers injured in motor vehicle crashes (MVCs) and any differences in the group of those charged compared with those not charged.

Methods: We performed a retrospective analysis of linked data from medical and judicial sources. Our setting was an urban emergency department of a trauma center serving a population of 1 million. We studied consecutive drivers injured in MVCs over a period of 15 months who had measured serum ethanol (BAC) levels of 100 mg/dL or higher. BAC, Trauma Score (TS), demographics, and crash data were linked to court records of charges, outcome, and prior convictions. The group of individuals who were charged with DWl were compared with those who were not charged.

Results: One hundred eighty-seven patients were studied; 53 (28%) were charged with DWI, and 32 (17% of total)were convicted. Two (7%) of 29 patients with severe injuries, 9 (28%) of 32 with moderate injuries, and 42 (33%) of 126 with nonsevere injuries were charged (P=.004). Eighteen (16%) of 112 patients with no prior convictions were charged; 20 (56%) of 36 patients with one, 11 (52%) of 21 with two, 3 (25%) of 12 with three, and 0 of 5 with four or more prior DWl convictions were charged (P<.001). There were no significant differences in BAC, demographics, or other measures between the two groups.

Conclusion: Alcohol-impaired drivers who require ED treatment for injuries sustained in an MVC are infrequently charged with DWl. The likelihood of a DWI charge diminishes with in- creasing severity of injury. Repeat offenders are charged more often, but the frequency of charges does not increase with in- creasing number of prior DWI convictions.

[Runge JW, Pulliam CL, Carter JM, Thomason MH: Enforcement of drunken driving laws in cases involving injured intoxicated drivers. Ann Ernerg Med January 1996;27:66-72.]

6 6 ANNALS OF EMERGENCY MEDICINE 27:1 JANUARY 1996

ENFORCEMENT OF DRUNKEN DRIVING LAWS Runge et aI

INTRODUCTION

Alcohol use is involved in 41% of fatal motor vehicle crashes (MVCs), 1 resulting in high economic and non- economic costs to society. 2 Practitioners of emergency medicine and trauma frequently care for injured, alcohol- impaired drivers, many of whom are not prosecuted for driving while impaired (DWI). In the United States from 1980 to 1985, more than 500 laws were passed in an effort to reduce the number of alcohol-impaired drivers on the road. These included increases in the penalties for those convicted of DWI, increases in the minimum drinking age, and reductions in the legal maximum blood alcohol con- tent (BAC) for operation of a motor vehicle) Although laws are stronger, enforcement is lacking; only three to five arrests are made for every 1,000 drunken driving episodes, and underage drinkers are infrequently arrested. ~

In 1984, Maull et al ~ studied 56 legally intoxicated, severely injured drivers; there were no convictions for DWI in that population. In 1987, Colquitt et al 6 studied records of 59 injured, alcohol-impaired drivers admitted to the hospital and found that 5% were prosecuted for DWI and none were convicted. In 1990, Barillo et al r reported an arrest rate of 41% among 480 legally intoxicated drivers who were admitted to their trauma service. Orsay et al, s in 1994, found that 16.5% of hospitalized, impaired drivers were cited for driving under the influence. These studies suggest that admission to the hospital provides a safe haven for intoxicated drivers. 5

Of drivers injured in MVCs and treated in the emergency department, only 18% are admitted to the hospitalg; the remainder are treated and released. In order to determine whether it is hospitalization or other factors that are responsible for the lack of prosecution, we studied the entire population of injured, legally intoxicated drivers treated in the ED, whether admitted or discharged, to determine the frequency of DWI charges within that population. The group charged with DWI was compared with the group not charged to discern factors that may confer protection from prosecution.

MATERIALS AND METHODS

The study was performed in an urban Level I trauma center with an annual ED census of 90,000 located in Charlotte, North Carolina, with a service area including parts of both North and South Carolina. Cause of injury codes are recorded routinely for all injured patients by the triage nurse on admission to our ED, according to methods described previously, 9 and entered into the hospital mainframe database (Unisys A17, PEN 2000 software,

Unisys Health Care Services). Employment category is assigned by the ED business office staff from the demographic interview with the patient or family.

All patients coded as drivers in MVCs from July 1, 1990, through September 30, 1991, were identified. Patients in this group who had a serum blood alcohol determination in the hospital laboratory were identified. Those whose BAC exceeded 100 mg/dL, the maximum legal BAC for operation of a motor vehicle in North and South Carolina during the study period, were eligible for study. BAC was drawn by protocol on all patients admitted to the trauma service and on others for clinical indica- tions only.

Medical records were reviewed, and data obtained include age, race, sex, BAC, admission or discharge, day and time of crash, employment category, method of payment, and hospital charges. The Trauma Score (TS) ~° on arrival was used as an index of severity of injury. Patients were divided by TS into those with severe (TS_<12), moder-

atdy severe (TS 13 to 15), and nonsevere (TS=16) injuries. Study patients were linked to court records by name,

date of birth, and social security number to determine the legal action taken relative to the crash and any pertinent driving history. Court records were retrieved by computer search (Mecklenburg County Criminal Justice Information System) with the assistance of the office of the district attorney. For out-of-county crashes, data were retrieved from the district attorney's office in the county of the crash. Data obtained include charges filed relative to the crash, court outcome, prior DWI convictions, prior moving traffic violations, and investigating agency. To ensure that prior charges in other states were included, a data manager in the district attorney's office cross-checked files with a national crime database (National Law Enforce- ment Telecommunications System). Medical and court data were retrieved from September to December 1991, except for four cases with pending court outcome, which were followed until the final outcome was known. All cases had cleared by November 1994.

All crashes involving injury or significant property damage were reported to the state by the Iaw enforcement agency investigating the crash on a standard traffic accident report. Study patients' MVCs were linked to these data at the Department of Motor Vehicles in the state in which the crash occurred by name, date, and time of crash. Data were obtained in July 1992 and included number of vehicles involved, number of persons injured, officer's impression of injury severity as indicated by KABCO score (K, killed; A, incapacitated; B, nonincapaciting; C, no visi-

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ENFORCEMENT OF DRUNKEN DRIVING LAWS Runge et al

ble injury but complaint of pain; and O, no injury), and whether the crash was witnessed.

Data were entered into a statistical database (SAS) for analysis without subject identifiers in accordance with Institutional Review Board procedure. Both univariate and multivariate analyses were performed. Univariate analyses were performed using Z 2, Student's t test, FisheFs exact test, one-way ANOVA, and Wilcoxon rank sum test as appropriate. Logistic regression was employed to select those independent variables that best predicted the outcome of being charged. A probability value of less than .05 was considered significant.

R E S U L T S

During the 15-month study, 3,243 patients were identified as drivers in. MVCs, 493 of whom had a BAC measured. Of those, 187 had a BAC higher than 100 mg/dL. All 187 medical records were retrieved for study and were linked to court records. Traffic accident reports were available for 1'}0 (75%) of the crashes.

Overall, 53 (28%) of the 187 legally intoxicated drivers were charged with DWI, and 32 of those (58%, or 17% of the total) were convicted. No differences were found between the group of patients charged and the group of those not charged in age, gender, race, or employment category (Table 1).

When the groups were compared by TS (Table 2), patients in the severely injured category were significantly less likely to be charged with DWI. However, no difference in the likelihood of being charged was detected between the group admitted to the hospital and the group discharged from the ED.

The mean BAC was not different between the group charged and the group not charged. No differences were found when the groups were compared by day of the week or time of day of presentation to the ED.

When the two groups were compared with respect to number of prior DWI convictions, significant differences were found (Table 3). Patients with one or two prior convictions were more likely to be charged than either patients with no prior convictions or patients with three or more prior convictions. The number of prior convictions

Table 1. Demographic factors of those not charged, charged, and convicted of driving while impaired.

Table 2. Clinical factors of those not charged and those charged with driving while impaired.

Not Charged Charged Convicted Factors (%) (%) (% of Charged) P*

Age (years) 0.99 16-20 21 (68) 10 (32) 9 (90) 21-25 30 (73) 11 (27) 5 (45) 26-35 50 (72) 19 (28) 7 (37) 36-45 22 (73) 8 (27) 6 (75) 46-55 7 (70) 3 (30) 2 (67) Over 55 4 (67) 2 (33) 2 (100)

Sex 0.82 Male 112 (71) 45 (29) 27 (60) Female 22 (73) 8 (27) 5 (63)

Race 0.99 White 101 (72) 40 (28) 23 (58) Other 33 (72) 13 (28) 9 (69)

Employment 0,94 category Clerical/salaried 5 (71) 2 (29) 0 (0) Professional 11 (79) 3 (21) 2 (66) Skilled 19 (66) 10 (34) 4 (40) Student/military 8 (73) 3 (27) 2 (66) Undetermined 8 (80) 2 (20) 1 (50) Unemployed 31 (76) 10 (24) 9 (90) Unskilled 52 (69) 23 (31) 14 (61)

*Charged versus not charged (;(2)

Not Charged Charged Factors (%) (%) P*

TS category .017 _<12 27 (93) 2 (7) 13-15 23 (72) 9 (28) 16 84 (67) 42 (33)

Admitted to hospital .92 Admitted 57 (71) 23 (29) Discharged 77 (72) 30 (28)

Mean BAC+_SD 204_+63 216+66 .27

Day of presentation .69 Monday 14 (82) 3 (18) Tuesday 11 (61) 7 (39) Wednesday 12 (60) 8 (40) Thursday 15 (75) 5 (25) Friday 15 (68) 7 (32) Saturday 42 (75) 14 (25) Sunday 25 (74) 9 (26)

Time of presentation .63 7 AM-12:59 PN 6 (75) 2 (25) 1 PM-6:59 AM 16 (73) 6 (27) 7 PM--IAN 60 (76) 19 (24) 12 AN-6:59 AM 52 (67) 26 (33)

*Charged versus net charged (% 2)



for other moving violations in this population ranged from 0 to 19, with 19 patients having more than 10 convictions. The likelihood of being charged with DWI did not vary with the number of convictions for other moving violations, nor did the likelihood of being convicted (Table 3).

The number of vehicles involved in the crash also had no effect. No differences were found in relation to whether, according to officer report, other persons besides the driver were injured in the MVC (Table 3). Likewise, the existence of witnesses to place the intoxicated driver behind the wheel was not related to any difference in the rate of DWI charges or convictions.

Using logistic regression to control for age, race, sex, employment, BAC, number of previous DWI convictions, and officer-perceived injury to the driver, the number of previous DWI convictions remained statistically significant. Those with one or two previous DWI convictions were significantly more likely to be charged than those with zero, three, or more previous DWI convictions (P=.006). Those with TS in the severe category (_<12) were significantly less likely to be charged than those with higher TS (P=.006).

Hospital charges for the 187 intoxicated drivers totaled $1,890,262. Because many of the patients were treated and discharged, there was a wide range of charges ($53.50 to $190,517), with a median of $1,765. Because medical payments for MVC injuries are paid by automobile insurance companies, many patients who had other third party insurance coverage were listed as "self-pay," confounding an analysis of source of payment for medical costs.

Four patients included in the sample died in the hospital. None was charged with DWI. Their TSs were 4, 8, 10, and 11, previous DWIs 3, 2, 1, and 0, and BACs 284, 180, 214, and 274 mg/dL, respectively A separate analysis that included only the survivors produced no significant differences in the results.

DISCUSSION

Other investigators have demonstrated a low rate of arrest and conviction for DWI among patients admitted to a trauma service but have not been able to determine the reasons. 3,>8,zz Some have suggested empathy for the driver, lack of judicial support for police, 5 and logistic problems, z2 We wanted to determine whether there were characteristics that separated those patients charged with DWI from those who were not charged over a wider population of injured impaired drivers, 57% of whom were treated and released.

The overall low rate of prosecution suggests that transport to the ED may alone confer some protection from prosecution. In contrast to the previous studies, our data suggest that it is not admission to the hospital that confers protection from prosecution, but rather severity of injury. In our study, patients admitted to the hospital with a TS indicating injury of low or moderate severity were prosecuted at the same rate as those who were discharged. Although the TS has limitations as an indicator of severity, it is a reflection of the physiologic status of the patient on arrival to the ED, which is the approximate time at which the officer makes the decision whether or not to charge the patient with the crime. The low rate of DWI charges

Table 3. Legal factors in those charged and convicted of driving while impaired.

Not Charged Charged Convicted Value* (%) (%) (% of Charged) p

Prior DWI <001 convictions {n=187) None 94(83) 19(17) 5(26) One 16 (44) 20 (56) 16 (80) Two 10(48) 11 (52} 9(82) Three 9 (75) 3 (25) 2 (66) 4-9 5(100) 0(O) O(0}

Prior moving .29 violations {n=187) 0-1 66 (79) 22 (25) 10 (45) 2-10 54(65) 27 (33) 19(70) 11-19 14(74) 4(22) 3(75)

No, of vehicles .13 involved (n=140) One 59 (70) 25 (30} 15 (60} Two 25 (56) 20 (44) 12 (60) Three or more 9 (82) 2 (18) 2 (100}

No. of persons .94 injured (n=140) Driver only 56 {67) 27 (33) 18 (67) Same vehicle passenger 18 (90) 2 (10) 1 (50) Occupant of other vehicle 19 (51) 18 (49) 10 (58)

Crash witnessed 23 (n=140) No 62 (67) 30 (33) 18 (53) Yes 31 (65) 17 (35} 13(76)

Law enforcement .69 agency (n=140) City 55 (72) 22 (29) 15 (68) County 10 (59) 7 (41) 4 (57) State 11 (61) 7 (39) 1 (14) Other state 6 (551 5 (45) 6 {100) Unknown 11 (65) 6 (35) 6 (100)

* Charged versus nor charged (X 2)

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in our study is consistent with studies of admitted patients performed in different areas of the country. How- ever, there is a wide disparity in those studies in the rate of conviction of those charged with DWI, from 0 to 98%.3,5-r

The mean alcohol level in both study groups was more than 200 mg/dk, which is similar to the levels found in other studies of intoxicated drivers (means, 181 to 214 mg/dk). 3,5,6J3 To remain awake with a BAC greater than 200 mg/dk implies prior development of a high alcohol tolerance and alcohol dependency. On September 1, 1993, North Carolina became the tenth state in the United States to adopt 80 mg/dh as the legal limit for operation of a motor vehicle, most states having a 100 mg/dk limit. Although it may reduce the average BAC of non-alcohol- dependent drivers on the road, it is unlikely that this law will have any impact on the drivers in our study, because the mean level in those patients was more than twice the legal limit and was consistent throughout the hours of the day.

in this population, the rate of recidivism for DWI is high. z Because the court system is an ideal source of entry into treatment for alcohol dependency, lack of prosecution may represent a missed opportunity for treatment of these patients. 6 Such treatment can be life-saving. Brewer et a114 have shown that individuals arrested for DWI are at much higher risk of eventually being killed in an MVC with a BAC over 200 mg/dL.

In this study, the groups charged and not charged differed significantly in the number of previous DWI convictions, but the relation was not linear. Although very few (16%) of those with no prior convictions were charged, 56% of those with one prior DWI conviction were charged. But as the number of prior convictions rose, the percentage charged fell, to the point at which none of those with four or more prior DWI convictions was charged. It is not known how many of the officers checked the patients' driving records before deciding whether to charge them. Whether familiarity with the system or other unmeasurable factors played a role is not known, but this finding was independent of the other variables we analyzed.

Past studies have shown psychosocial differences between multiple DWI offenders and those with their first DWI arrest. Prior DWI conviction suggests a serious alcohol problem, but the type of disorder is also different. MacDonald and Pederson 15 demonstrated a clear difference in drinking behaviors: alcoholics with zero or one DWI episode tended to drink more often but in smaller quantity than multiple offenders, who reported frequent

binge drinking and an average consumption of 17.9 drinks per day. A study performed in the 1960s by Waller 16 of driving and drinking behavior among those arrested for DWI supported the assumptions that non- alcohol-dependent drinkers are unlikely to have more than one arrest for DWI and that those with more than one arrest have serious psychosocial pathology. In our study, we recorded only prior convictions, because there was no record of arrests for which the charges were dropped. The number of prior DWI arrests in our population may be much greater, because convictions represent only about half of drunken driving arrests. 11

There was no difference between the two groups with respect to prior moving traffic violations other than DWI. Overall, we discovered 616 prior moving traffic convictions among 121 subjects, ranging from 26 people with one prior conviction to 2 people with 19 prior convictions. This is not surprising, because DWI offenders pose a risk as a result of not only their alcohol consumption but their driving behavior. Evidence suggests that it is the act of driving while impaired that defines the group at high risk for crashes, rather than a history of alcohol dependence. Sober alcoholics have no worse driving behavior than any other driver lz-19, but 39% to 58% of persons who have been convicted of DWI have a history of major moving violations 7,a°, a far greater rate than that found in the remainder of the driving population. 3 In our population, the driving record does not influence whether or not a person is tested for BAC or charged with DWI, but it should. The patient who has a history of drunken driving represents a major risk factor on the highway irrespective of alcohol level,

To test the theory that an injured driver has "paid enough," especially if he has "only hurt himself," the charged and noncharged groups were compared as to number of vehicles involved in the crash and whether other passengers in the patient's vehicle or occupants of another vehicle were also injured. No differences in prosecution rates were found. An analysis of the officer's perception of the severity of injuries to persons other than the driver, using the standard KABCO system on the traffic accident reports, also failed to reveal a difference between the groups.

Police officers and prosecuting attorneys have stated that unwitnessed MVCs cannot be prosecuted because of a lack of testimony to place the person behind the wheel, regardless of where the person was found in the car or even if there were apparently no passengers. 1~ However, those in our study whose MVCs had been witnessed were no more likely to be charged than those involved in un-

7 0 ANNALS OF EMERGENCY MEDICINE 27:I JANUARY 1996


witnessed crashes. Two thirds of those in our study whose crashes were witnessed were not charged.

If some drivers were judged to be not at fault in their crash, the investigating officer may have elected not to charge them with DWI. This is unlikely, however, to explain the low rate of charges. Maull et al 5 found that 98% of injured, impaired drivers were judged by the police to be at fault in the crash. Soderstrom et aP A~ found 93% of injured drivers with positive BAC to be at fault, as well as 83% of motorcycle drivers with a positive BAC.

There are limitations to our study Because BACs were not drawn on every injured patient, patients who were legally intoxicated but without a clinical reason for a BAC measurement may have been missed. Patients with high tolerance may have very high levels of alcohol and escape detection on clinical grounds. 21 Drivers may also have escaped detection by claiming to be passengers, especially if they were trying to avoid the legal ramifications of DWI. Patients with BACs just below 100 mg/dL were not included in our study, yet they may have had a higher level at the time of the crash. All patients admitted to our trauma service are supposed to have a blood alcohol determination in the ED. The rate of compliance with this protocol is 85%, and it is possible that some who were not tested were legally intoxicated. Although these limitations may have resulted in undersampling, it is unlikely that legally intoxicated patients who lacked clinical indi- cations for BAC measurement had a higher incidence of prosecution than those included in the study If any selec- tion bias exists, it appears to be tilted toward inclusion of those who were more easily identified as intoxicated and therefore more vulnerable to prosecution. The BAC mea- surements in this study were ordered by physicians for clinical reasons only and were independent of any sample drawn by the police for forensic purposes. Our data did not include mode of transport to the hospital. It is possible that those who were transported by police or private vehicle were more likely to be prosecuted, and that ambu- lance transport may be a protective factor.

Although our data were obtained from predefined data sets and are not subject to many of the limitations of other retrospective studies, the time frame over which data were gathered warrants discussion. The length of time it takes for a case to reach final adjudication may be related to the patient's experience with DWI charges, the effectiveness of legal counsel, or the severity of injury Therefore, conviction may be less likely as the length of time increases. In our study, all data were retrieved within 3 months after the last patient was treated, except four court cases that

were outstanding. These four cases were followed to com- pletion; only one of the four was convicted, compared with 58% of the others who were charged.

Our study demonstrates that the linking of data from medical, law enforcement, and judicial sources can yield important information about injury prevention and treatment. Further study is needed to delineate the barriers to effective prosecution, conviction, and treatment of intoxicated drivers. The public health impact of impaired driving is well documented. 3,~ 1.2>27 Policymakers have responded with passage of laws prohibiting the operation of a motor vehicle over set limits of BAC, irrespective of clinical intoxication. It cannot he assumed, however, that because a statute exists, it is being enforced on the street or in the courtroom. To be effective, principles of legal deterrence mandate that the population must perceive certainty of apprehension and severity and swiftness of punishment. Reductions in drunken driving between 1983 and 1986 have been related directly to the public's perception of vulnerability to arrest for DWI. 2s Loss of that perception could aggravate this public health epidemic.

Despite evidence that injured, legally intoxicated drivers have a high rate of drunken driving episodes and other moving violations, it appears that they are infrequently charged with DWI. Injured drivers should routinely be screened for BAC by health care and public safety pro- viders. Linking ED and criminal justice data sets has important implications for injury prevention and control.

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ENFORCEMENT OF DRUNKEN DRIV ING LAWS Runge et al

12. Cole TB, Patetta M J: Why does the injured drunk driver escape arrest and conviction? N C Med J 1992;53:453-488.

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14. Brewer RD, Morris BD, Cole TB, et ah The dsk of dying in alcohol-related automobile crashes amen9 habitual drunk drivers. N Engl J Mad 1994;331:513-517.

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18. Booth RE, Orosswiler RA: Correlates and predictors of recidivism among drinking drivers. Int J Addict 1978;13:79-88.

19. MacDonald S, Pederson I_L: Occurrence and patterns of driving behavior for alcoholics in treatment. Drug Alcohol Depend 1988;22:15-25.

20. Argeriou M, McCarty D, Blacker E: Criminality among individuals arraigned for drinking end driving in Massachusetts. J StudAIcehe11985;46:525-530.

21. Orso T, Gavaler JS, Van Thiel DH: Blood ethanol levels in sober alcohol users seen in an emergency room. Lifo Sci 1981 ;28:1053-1056.

22. National Committee for Injury Prevention and 0entrol: Injury Prevention: Meeting the Challenge. New York, Oxford University Press, 1989.

23. US Department of Transportation: Alcohol involvement in fatal traffic crashes 1988. Washington, DC, National Highway Transportation and Safety Administration 1989;DOT I-IS 807:448.

24. Council on Scientific Affairs: Alcohol and the driver. JAMA 1986;255:522-527.

25. Wailer JA: Factors associated with alcohol and responsibility for fatal highway crashes. O J Stud Alcohol 1972; 33:160-17 g.

26. Waller PF, Stewart JR, Hansan AR, et ah The potentiating effects of alcohol on driver injury. JAMA 1886;256:1461 -t 466.

27. Anda RF, Wiiliamson BF, Remington PL: Alcohol and fatal injuries among U.S. adults. JAMA 1988;260:2529-2532.

28. Snortum JR, Berger DE: Drinking-driving compliance in the United States: Perceptions and behavior in 1983 and 1986. J Stud AIcoho11989;50:306-319.

The authors acknowledge the help of Peter Gilchrist, JD, Mecklenburg County District Attorney, and his staff for court data, Benjamin Gilmer for Department of Motor Vehicles data collection, and Rebecca Frederiksen for assistance with research staff coordination and abstract preparation.

Reprint no. 47/1/69436

Reprint address:

Jeffrey W Runge, MD

Department of Emergency Medicine

Carolinas Medical Center

PO Box 32861

Charlotte, North Carolina 28232-2861

704-355-7092

Fax 704-355-7047


enforcement of drunken driving laws in cases involving injured intoxicated drivers

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