Will Uber Cut Down on DWI’s in Springfield?

According to a recent Springfield News-Leader article, DWI arrests in Springfield have gone down since Uber became operational in Springfield 4 months ago. See the News-Leader article below.

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(Photo: News-Leader Illustration)

When Missouri lawmakers passed a bill this session making it easier for ride-hailing services like Uber and Lyft to operate in the state, they lauded the bill’s potential to reduce drunken driving.

They could have used Springfield as an example.

Since the City Council tweaked the rules to help bring Uber to Springfield in November, the number of DWI arrests in the city has gone down. But there’s some debate about how much credit to give the new companies, which allow customers to hail rides from nearby drivers using an application on their smartphones.

An Uber spokeswoman said the company’s drivers do most of their pickups on the weekends in downtown Springfield, where people might otherwise choose to drink and drive.

Lt. Stacey Parton, in the Springfield Police Department’s traffic unit, said he has the Uber application on his phone and he sees its potential for reducing drunken driving, but he needs more data to truly understand Uber’s impact.

“I will say that Uber has had an effect,” Parton said. “Statistically, I am not sure that we can quantify it right now, but it has had a good effect.”

Uber launched in Springfield in November
Uber launched in Springfield in November (Photo: David Ramos, Getty Images)
From December to March — the first four full months that Uber has been operational in Springfield — there was an average of 47 DWI arrests per month in Springfield.

That’s down from an average of 55 DWI arrests per month in 2016, and way down from the five-year average of 76 DWI arrests per month in the city.

But DWI arrests had been trending down in Springfield prior to Uber’s arrival in November and Lyft launching in January.

Parton said there are other factors to consider when looking at DWI numbers.

In late 2014, Greene County instituted a policy allowing police to draw blood from suspected drunken drivers who refuse a breathalyzer test. Parton said he believes that policy is working as a deterrent.

“Word has gotten around,” Parton said. “And I think it has caused people to think more about drinking and driving.”

Parton also pointed to ongoing public awareness campaigns, more housing downtown and the dissolution of SPD’s dedicated DWI unit as factors that might be leading to fewer DWI arrests.

Academic studies have drawn varying conclusions about the impact of ride-hailing companies on drunken driving.

A 2016 study from the American Journal of Epidemiology found that Uber did not have a noticeable impact on drunken-driving fatalities in the nation’s 100 most populated metropolitan areas. But Uber points to a 2015 Temple University study that found a drop in alcohol-related driving fatalities after Uber was introduced in California.

On its website, Uber also touts a 10 percent drop in DWI arrests that followed Uber’s launch in Seattle.

 

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The Future is Here: Breathalyzer Skin Patches

We all know that if someone is arrested on suspicion of drunk driving, they will be required to take a breathalyzer test, usually later at the police station. And this test result will be the primary evidence used against him in a drunk driving case.

The first problem with this is that the amount of alcohol in the blood is constantly changing — either rising due to absorption from recent drinking or, more likely, falling due to metabolism of the alcohol.

The second problem is that it is only illegal to have a .08% blood-alcohol concentration at the time of driving — not later at the police station.  And this breath test may not be given for an hour or two after the driving has ended — particularly in accident cases, where the police may not arrive for some time.  So the prosecution has to try to estimate what the blood-alcohol level was when the suspect was driving based upon the later test.

The third problem is that because of this, for the test results to be admissible as evidence in court they have to have been obtained within a certain period of time — in California, for example, within three hours.

But what if there was a breath-testing device which could record what the blood-alcohol level was at the time the suspect is actually driving?
Flexible Wearable Electronic Skin Patch Offers New Way to Monitor Alcohol Levels

San Diego, CA.  Aug. 2 – Engineers at the University of California San Diego have developed a flexible wearable sensor that can accurately measure a person’s blood alcohol level from sweat and transmit the data wirelessly to a laptop, smartphone or other mobile device. The device can be worn on the skin and could be used by doctors and police officers for continuous, non-invasive and real-time monitoring of blood alcohol content.

The device consists of a temporary tattoo — which sticks to the skin, induces sweat and electrochemically detects the alcohol level — and a portable flexible electronic circuit board, which is connected to the tattoo by a magnet and can communicate the information to a mobile device via Bluetooth…
Clearly, the government would be very interested in requiring anyone convicted of DUI to wear such a patch for the probationary period (commonly three years).

 

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Pot Breathalyzers are Being Tested By Law Enforcement

With the number of states that have passed recreational marijuana laws, the need to detect stoned drivers has increased. Technology companies have come to the rescue, creating devices to detect whether an individual has recently smoked or ingested marijuana. While the devices are still undergoing testing, one researcher, who happens to be a volunteer officer, has begun field testing. Like the alcohol breathalyzers that are commonplace, the marijuana breathalyzer detects the active ingredient, THC, in an individual’s breath. Based on the reading provided, an officer will be able to tell if a person has recently ingested or smoked marijuana. However, unlike alcohol, where there have been countless studies regarding the point of impairment, the research in regards to marijuana is lacking.

Why Does Law Enforcement Need a Pot Breathalyzer?

Marijuana, unlike alcohol, cannot be as accurately detected in urine, saliva, or blood tests. While it will show up in all three tests, the problem is that it can show up for days, weeks, or even months after the last consumption. The breathalyzer serves to bridge the gap in evidence an officer would need, not just to make an arrest, but also to make a court conviction more probable. The pot breathalyzer would allow officers to premise an arrest for DUI on marijuana based not only on a field sobriety test, but also on a breathalyzer reading that shows the driver has consumed marijuana within the last few hours. The device cannot detect marijuana use beyond a few hours.

When Will Device Go to Market?

While nearly half the country now allows either medical or recreational marijuana, the pot breathalyzers are not set to be publicly available for some time. The manufacturers are trying to rush the product to market, but more time is still needed. The devices still need to go through rigorous testing for accuracy, as well as the development of a standardized scale for when a person should be considered inebriated by marijuana. Just like many states have adopted the 0.08% BAC standard, a similar standard will need to be developed for marijuana before these devices can actually be effective.

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Cheating the Breathalyzer: Urban Legends

In fear of failing a breathalyzer test, many people over the years have tried and failed to successfully discover a means of being able to cheat the test. Many urban legends exist as to how one can actually consume a level of alcohol which is over the legal limit yet still pass a breathalyzer test when stopped by the cops. However, no matter how believable these “success stories” may sound, you can bet that they are actually false.

A common misconception is if the alcohol cannot be smelled from your breath, then you will not fail a breathalyzer test. This had led to people drinking alcohol which left a minimal odour on your breath or chewing gum or mints to hide the smell of alcohol in the belief that would pass should they be pulled over for a breathalyzer test. Unfortunately, the smell of alcohol on your breath will do nothing to affect the results of the test. A breathalyser will still be able to discover your blood alcohol content.

Similarly, if you think a mouthful of mouth wash or some breath spray will do the trick, think again. Most mouthwashes and breath sprays actually contain levels of alcohol so essentially, all that you will be doing is further adding to the level of alcohol in your system. Another common urban legend involves sticking pennies or one cent coins under the tongue to try and cheat a breathalyzer test. The general thought beyond this claim is that the copper in the pennies or coins can somehow counteract the presence of alcohol. This however is completely false – and in fact, U.S. one cent coins are actually largely made of zinc. In truth, you are probably just putting yourself at risk of choking on coins or absorbing dangerously high levels of zinc!

There have also been many bizarre stories about how one can successfully cheat a breathalyzer test by stuffing crazy things in your mouth. Do not even bother putting yourself through the embarassment and hassle of doing such a thing because you will undoubtedly still fail the test. Although you might provide a source of amusement for your arresting police officers! Despite what people may think, stopping off for some fast food and a coffee will not affect the results of the test either. It may satisfy your intense hunger or thirst but absorbing food or drink will not lower your breath alcohol levels.

Finally, holding your breath before taking the test or belching into the device are also believed to be “successful” ways of cheating a breathalyser test. Unfortunately guys, this is merely an urban myth. By holding your breath before the test, you could actually be even allowing further amounts of alcohol to enter your lungs which can result in a higher reading.

Do you know what the only truly successful way of a cheating a breathalyzer test is? Abstaining from alcohol before driving! Do not ever try to “guess” if you are over the legal alcohol limit to drive. If you intend on having a drink, you need to bring a personal breathalyser with you to test yourself before deciding whether to drive home. If your reading is over the limit, it is time to start flagging down a cab.

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New Greene County “No Refusal Policy” in DWI Cases

As a DWI attorney the major question I get is, “if I’m pulled over and investigated for DWI, should I blow or refuse”.  I would always explain that for various reasons there is no cookie cutter answer and that all cases are different.  Typically, with everything being equal, I would usually advise to refuse the breathalyzer if there is any question in your mind whether you’ll blow over the presumptive legal limit of .08%.  Due to a recent change in policy in Greene County, however, for reasons I’ll explain, I pause before giving someone the advice to refuse the breathalyzer.

Missouri v. McNeely, 133 S.Ct.1552 (2013), is a fairly recent and hugely important case regarding blood draws in DWI cases.  In that case, the U.S. Supreme Court held that forcing a DWI suspect to submit to a blood draw without a warrant is unconstitutional.  However, the case left open the possibility for forcible blood draws as long as police officers get a warrant.  A person’s body is clearly protected under the Fourth Amendment, but as with any other type of evidence, if police can demonstrate that they have probable cause to believe evidence of a crime will be found, judges can sign warrants allowing an intrusion into the human body.  As communistic as it may sound, forcible blood draws are included.

Greene County has now instituted what they call a “no refusal policy”.  What this means is that any time the Springfield Police Department, the Greene County Sheriff’s Department, or the Missouri State Highway Patrol have a DWI suspect refuse to blow into a breathalyzer after a DWI arrest, the officer will fill out the paperwork requesting a warrant, submit the paperwork electronically to a judge, and will request an electronic signature.  Once a warrant is signed, police can then go to any means in order to extract blood from a suspect, even if it means strapping them to a gurney and forcing a needle into his or her arm.

Setting aside the numerous human decency and rights arguments, there are a few things that people need to be aware of before making the decision to refuse in Greene County.  Traditionally, if a person blows and the breath alcohol content is .08% or greater, they can request an administrative hearing with the Department of Revenue.  Typically, they would still lose their license for 30 days followed by 60 days of a hardship, and would have to jump through some hoops to get it back.  If a person would refuse to blow after arrested for DWI, in the scenario of a first offense, there were ways to keep that person from losing his or her license at all.  On a second or subsequent arrest in that situation, things got murkier and oftentimes the suspect would lose their license for one year, with eligibility for a hardship after 90 days.  An ignition interlock for the full year, plus an additional six months, was one of the hoops required before reinstatement.  Now, if someone refuses to blow and a warrant is obtained, not only are they looking at the refusal suspension, but depending on timing, they could also be looking at the administrative suspension, not to mention a possible point suspension if convicted of the criminal case.   The blood draw will be sent to the Missouri State Highway Patrol Crime Lab for analysis, then the results forwarded on to the Department of Revenue.  This process can often take several months, so the suspect could be almost finished with the first license suspension before the second and third suspensions even start.

There are cases, however, where this new policy could come back to bite law enforcement and prosecutors.  For example, if someone refuses to blow in cases where they would have been very close to .08%, once law enforcement goes to the trouble of getting a warrant (which can take up to an hour or longer) the alcohol may have very well dissipated and the BAC is then below .08% at the time it is tested.  This situation will put an even heavier burden on the state because by statute they will have to show “substantial evidence of impairment” if the BAC is below .08%, whereas if above the legal limit, a presumption of impairment is created.  With those who refuse, although no legal presumption is created, the law makes it clear that the refusal can be used as evidence of guilt by the judge or jury, thereby creating a presumption even if not specifically enumerated as such.  Therefore, in the actual prosecution of cases on the criminal side it is unlikely to help and may realistically hurt those that would have been strong cases without the blood draw.

Because of the above, to me, this is an unnecessary and burdensome step in an effort to gain public attention.  The procedure will do absolutely nothing to help prosecute DWI cases.  All it will do will be to punish hard working people who have perhaps made a poor decision, even if for the first time, to get behind the wheel after drinking, by suspending their licenses for longer and making it more difficult and costly to get reinstated.  It will add extra cost and time for law enforcement and for the judges who are up in the middle of the night to review and sign the warrants, for very little benefit in the courtroom.  It is much more a publicity stunt than a tool to combat DWI offenses, while dehumanizing those accused.  Time and money would more wisely be spent on giving the officers added education and knowledge in the science and investigation of DWI cases rather than wasting it on figuring out ways to legally invade the human body.

Breathalyzer Results in Missouri DWI Cases May be Thrown Out

All Driving While Intoxicated cases have two separate aspects: the administrative portion of the case and the criminal portion of the case.  As we all know, the breathalyzer result (BAC) can be an important part of DWI cases and can impact both the administrative and criminal aspects.  On the criminal side, state or city prosecutors will always attempt to get the BAC result into evidence if it is over .08%.  If admitted into evidence a legal presumption of impairment on behalf of the defendant is created, and the government is already well on it’s way to winning the case.  The state or city can of course prove it’s case with evidence other than the BAC, but if over .08%, that alone is very strong evidence of impairment and it makes their job much easier.  As far as the administrative side, the Department of Revenue is going to attempt to take a suspects driver’s license as a result of a BAC that is .08% or greater.  The administrative license suspension in that case would be for 90 days in the event of a first offense, and one year if it is a second offense within 5 years.

In order for the state and municipal prosecutor or the Department of Revenue to use a BAC result, very strict protocol must be followed by the agency that performs routine maintenance on the breathalyzer machines.  The police agencies themselves have a designated officer, known as a Type III, who maintains and calibrates the breathalyzers.  The Missouri Breath Test Program, as it is known to legislators and DWI practitioners, is governed by the Missouri Department of Health and Senior Services.  Specifically, the program is codified in the Code of State Regulations at 19 CSR 25-30.  In those regulations, the breathalyzer must be maintained once every 35 days and it must be tested against a standard simulator solution from approved suppliers.  Under 19 CSR 25-30.051, as it is now written, the standard simulator solution must have a vapor concentration of .10%, .08%, or .04%.  Since the beginning of the Breath Test Program, the agencies who maintain the machines have historically tested them against one of those vapor concentrations rather than all three.  However, on November 30, 2012 the regulations were changed to read that the machines must be tested against a standard simulator solution of .10%, .08%, and .04%.  On January 29 of this year, the “and” was quietly removed and replaced once again with “or”.

As most people know, in the legislative and legal world, the significance of the words “and” as well as “or” can not be understated.  In Missouri, there are approximately 30,000 DWI arrests per year.  In the vast majority of those arrests a BAC result is obtained.  From November 30, 2012 through January 29, 2014, it is safe to assume there were well over 30,000 DWI arrests.  It is also safe to assume that no agency anywhere in the state actually followed the Code of State Regulations as they were written during that time and tested the breathalyzers every 35 days against a solution of .10%, .08%, and .04%.  They most likely tested the machines against one of the three, but as one tiny three letter words makes clear, one test may not have been enough.  It may, however, be enough to get tens of thousands of BAC results thrown out of criminal prosecutions and administrative license suspension cases across the state.  It has already started in the St. Louis area, where an associate judge reinstated several license suspensions as a result of the mistake.  It will be interesting to see how it is handled in Greene County and Southwest, Missouri.  I, for one, am anxious to get the process started.  Stay tuned!