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... under 0.08 law Aggressive enforcement helping drive up arrests for drunken driving By Joe Gerrety, Journal and Courier It's been one year since Indiana's drinking and driving law was stiffened, and Lafayette-area police and prosecutors agree that the public information campaign has worked.
Nearly everyone in Indiana knows that 0.08 is the legal blood alcohol limit for driving while intoxicated in Indiana, say officials who deal with drunk driving cases day in and day out. Whether the lower blood-alcohol content limit, reduced from 0.10 percent on July 1, 2001, has had the intended impact of changing people's behavior remains open to debate. But there are some encouraging signs, officials say: •The frequency of fatalities resulting from impaired-driving crashes has dropped by about half in the Lafayette area in the past 1 1/2 years, according to Journal and Courier research. •The number of people being
arrested, charged and tried on drunken driving charges is up, according to
police records and anecdotal information. As of Thursday, after nearly a
year under the new OWI law, monthly arrests for drunken driving were 25
percent higher than in the previous 12-month period, according to arrest
records. "I don't know that that's attributable to 0.08," Sean Persin said of the increased caseload. Persin is a Tippecanoe County deputy prosecutor responsible for prosecuting the bulk of misdemeanor and Class D felony drunken driving cases. From his standpoint, Persin said it's too early to tell whether 0.08 will make his job easier or harder. Only two OWI cases filed after July 1, 2001, have gone to trial so far, and both of those cases involved breath test refusals. James Huffer is the county prosecutor in Carroll County, which went nearly two years without a confirmed impaired-driver fatality until a crash earlier this month involving a suspected drunken driver. Test results are pending in that case. Huffer said attitudes toward drunken driving in general are changing along with laws such as 0.08. He believes first-time convictions for drunken driving are having a bigger impact on people, and he definitely has noticed more of a stigma attached to such a conviction. "It's just not cool to see someone leave a bar or a fraternity party or anywhere (under the influence) and see them get in a car. It's just not allowed to happen," said Huffer, whose three children are young adults and have observed the change in attitude. "And I know that didn't used to be the case." Some of the change in perspective has coincided with the debate that led to passage of 0.08 as the new drunken driving standard, Huffer said. State Sen. Tom Wyss, R-Fort Wayne, fought unsuccessfully for 10 years to lower Indiana's drunken driving threshold to 0.08 before it passed the General Assembly last year. The prospect of losing tens of millions of dollars in federal highway funding by failing to enact an 0.08 standard helped to push the bill through. To date, 32 states and the District of Columbia and Puerto Rico have adopted the 0.08 standard, although the new laws have yet to go into effect in some of those states. Challenging the test According to one Lafayette defense attorney, one likely outcome of the stricter standard will be more aggressive challenges of the accuracy of breath tests. Matt Sandy, who has one of the heavier OWI caseloads among private attorneys in Tippecanoe County, said the public tends to trust the reliability of the breath analysis instruments used by police agencies. He maintains that the aura of scientific precision attributed to the machines is largely unfounded. "These machines aren't any different than a toaster oven," Sandy said. "When they get to be five years old and the dial's set on brown, sometimes the toast comes out black." Sandy said there's a popular misconception -- one voiced by many legislators as they debated the 0.08 legislation last year -- that social drinkers will be penalized by the change. "Most people think they can't have two glasses of wine with dinner and then drive home," Sandy said. "It's not true if our machines are accurate." At the Lafayette Police Department, which made 43 percent of the county's 1,062 OWI arrests in 2001, the Datamaster breath test instrument, is only two years old. Persin said he has noticed that a large number of pending cases on his trial calendar involve blood-alcohol tests between 0.08 and 0.10, indicating a willingness by defendants and the lawyers to challenge the accuracy of the tests. But he called Sandy's criticism of the breath test instruments "ridiculous." James Klaunig, director of the state department of toxicology at Indiana University School of Medicine for 11 years, agreed. "These are fairly sophisticated instruments," he said. "They cost $6,000 to $7,000 apiece, so they're not a toaster." The Datamaster alcohol breath test instruments used statewide in Indiana are widely used across the United States and in Europe. The toxicology department, which owns all 225 instruments used in the state, replaces about 40 of them each year. So the average age is about four years, Klaunig said. Five of those machines are in service in Tippecanoe County, one for each police agency: Purdue, Tippecanoe Sheriff's Department, West Lafayette, Lafayette, and Indiana State Police. State law requires that the instruments be recalibrated every 180 days, but Klaunig said they usually are checked every 90 days. Inspectors follow a standard inspection protocol. Klaunig said his department keeps a public file documenting the maintenance record on each instrument. "If a part is replaced, it's put in the file," he said. "If something's wrong, it's put in the file." Defense attorneys can and frequently do check those files and refer to them during trials. The instruments are designed to shut down if they are not functioning properly, reducing the possibility of an inaccurate test because of a malfunction, Klaunig said. Lt. Jeannette Bennett of LPD heads a local interagency OWI police task force, which uses grant money to conduct drunken driving enforcement pushes. Because of the frequency of inspections, she has no concerns about the accuracy of area breath test instruments. And breath test results are only part of the evidence that goes into an OWI arrest. "In most instances, we're not just relying on the machine," Bennett said. "There are other signs of impairment that go along with it." On the streets From the perspective of the patrolman, enforcement procedures have changed little since passage of 0.08. Officer Brad Bishop, who has been with LPD for 4 1/2 years, leads the department in OWI arrests in 2001 with 86. So far in 2002, he has made 69 arrests. "I think part of it has to do with the time of night I work," said Bishop, who works a 10-hour graveyard shift starting at 9 p.m. or 10 p.m., including almost every weekend. Assigned to a different part of the city each night, Bishop said he keeps an eye out for the same erratic driving behavior and the same signs of intoxication during a traffic stop that he did before 0.08 became the law. Disregarding stop signs or traffic lights, weaving, driving left of center, speeding, failing to signal turns or making wide radius turns are some common driving errors that lead to an OWI investigation, he said. "These reasons for a stop can document impairment in and of themselves," Bishop said. Once a traffic stop is made, Bishop typically bends low to the driver's window to see if he can smell alcohol on the driver's exhaled breath. He looks into the driver's eyes to see if they're watery or bloodshot and observes manual dexterity as the driver locates his or her license and registration. When those observations lead him to suspect intoxication, he requests a field sobriety test. Depending on the location of the traffic stop and the weather, that test is administered either at the side of the road, in a well-lighted parking lot, or at LPD headquarters. The field sobriety test may include requiring the driver to balance on one leg, walk and turn, focus on an object moved side to side in front of the driver's face or count backwards. If the driver does poorly on the field sobriety checks, an officer may request a breath test. Bishop said the vast majority of people who fail the field sobriety tests are 0.08 BAC or higher. A few test below the limit, which doesn't surprise him. "Impairment begins at 0.04," he said. Those who have been drinking but test below the legal limit are required to call for a cab or make other arrangements to get home. Those who test 0.08 or higher are booked. A major benefit of 0.08 is that it relieves police officers of making several judgment calls, said Persin, the deputy prosecutor. In the past, if a suspect tested just below 0.10, even with signs of impairment, officers were more likely to release the suspect as long as they found someone to drive them home. "We're getting those additional people in front of the court to hopefully prevent it from happening again," Persin said. "When they sent them home, it sent a mixed signal that what they were doing was all right, and it wasn't." OWI enforcement involves a considerable time commitment by police. Bishop said from the time he makes a traffic stop to the time he drops off a suspect at the Tippecanoe County Jail, the process of making a drunken driving arrest usually takes at least an hour. Then there's another hour of paperwork, including filling out a standardized probable cause affidavit and the typical three-page narrative about the traffic stop and arrest. The process can take up to three hours, or 30 percent of a 10-hour shift. Bishop considers it time well spent if it makes the highways safer, even for the few people on Lafayette streets during the pre-dawn hours. While some people arrested for drunken driving see the criminal charges as ruining their life, Bishop sees it as saving lives. "It's a proactive, preventive measure," he said. "If people honestly look back in their heart of hearts, they'd feel better spending five or six hours in jail than if they'd wrecked their vehicle or hurt themselves or someone else." By the numbers Here are some other statistics about the 16 deaths that have resulted locally from 15 confirmed impaired-driving crashes in the past 18 months: •13 of the 15 impaired drivers were male. •Of those killed, 7 were impaired drivers and 9 were driving other vehicles or were passengers. •The average age of those killed was 32, but the ages ranged from 2 to 81. •The average age of the impaired driver was 31, but their ages ranged from 18 to 61. •The average blood-alcohol content of those who were intoxicated was 0.20 percent, but BACs ranged from 0.11-0.38 percent •Three of the 15 drivers had illegal drugs in their systems but no alcohol. Three tested positive for drugs and alcohol. •White County had the most impaired driving fatalities, with 4, followed by Tippecanoe County and Montgomery County with 3 apiece. •Half of the fatalities occurred on Friday, Saturday or Sunday. -- Joe Gerrety/Journal and Courier On the Net For more information and views about drunken driving and the 0.08 blood-alcohol content limit: |
