Enforcement of Zero Tolerance Laws in the United States

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1 Enforcement of Zero Tolerance Laws in the United States 1 S.A. Ferguson, 1 M. Fields, and 2 R.B. Voas 1 Insurance Institute for Highway Safety, Arlington, Virginia, USA 2 Pacific Institute for Research and Evaluation, Bethesda, Maryland, USA Abstract By 1998 all states had enacted zero tolerance laws, which prohibit people younger than 21 from driving with any positive blood alcohol concentration (BAC). A review of the laws was undertaken to determine whether variations in zero tolerance laws might affect their enforcement. Five states were selected (California, Michigan, New Mexico, New York, and Virginia) that appeared to differ in the ease with which the laws could be enforced. Detailed information on enforcement practices was collected in interviews with police officers and motor vehicle officials. The zero tolerance laws in these states have done little to change the way police identify underage drinking drivers. Consequently, these laws rarely are being enforced independently of the laws against impaired driving aimed at all ages. However, if an officer stops an underage drinking driver, some provisions of the laws can make it easier to issue a zero tolerance citation. For example, in most states an evidentiary test for BAC is required to prove a zero tolerance violation, but in a number of states the implied consent law requires either an arrest for driving while impaired (DWI) or for an arrest before such a test can be administered. Thus, underage offenders with low BACs cannot be arrested for zero tolerance. By contrast, in California officers can use results from preliminary breath test (PBT) units at the roadside as evidence of zero tolerance if an underage driver is suspected of drinking. Factors that reduce the likelihood of enforcement are discussed. Keywords: Enforcement, zero tolerance laws, alcohol-impaired driving, youth Introduction Since 1980 the proportion of fatally injured passenger car drivers with high BACs (equal to 0.10 percent or greater) has been declining. This decline has been greatest among year-old drivers. 1 This is due, at least in part, to laws that prohibit drinking and drinking and driving by youth. Substantial literature 2-4 demonstrates that raising the drinking age has reduced alcoholrelated fatalities among the affected age groups. Studies indicate that zero tolerance laws, which prohibit underage people from driving with any positive BAC, are effective in reducing alcoholrelated crashes. 3,5,6 Because detection of DWI offenders is based on evidence of impairment, detecting young drivers with low BACs in violation of zero tolerance laws is difficult. Young drivers with very low BACs may not exhibit signs of impairment in the driving task and thus will not be stopped. Even if stopped, these drivers may not appear to have been drinking and may perform well on sobriety tests. 7 Furthermore, underage youths drink in different locations than other drinkers, so routine patrols may not come into contact with them. 7

2 A comprehensive review of the alcohol and driving laws in the 50 U.S. states and the District of Columbia was undertaken to identify the variations in zero tolerance laws that may render them either difficult or easy to enforce. Detailed information was collected on enforcement practices in five states chosen because their laws represented major differences identified in the review. Interviews were conducted with police officers and others involved in enforcing the laws, such as department of motor vehicle (DMV) personnel. This paper reports findings from five states: California, Michigan, New Mexico, New York, and Virginia. Methods Interview Procedures Interviews were conducted in at least three police departments within each of the five states, chosen to represent a mix of larger and smaller jurisdictions distributed throughout each state. Most were in urban areas. Based on officer availability, one to three officers were interviewed in each department. Two experienced interviewers conducted the interviews, except in Michigan where a single interviewer conducted the interviews. Interviews typically were with officers who had extensive experience in enforcing DWI laws and some experience with the zero tolerance law. Officers were asked to describe the processing of a typical DWI suspect from initial observation, through the arrest procedure, completion of all necessary paperwork, and hearing or trial procedures in juvenile, traffic court, or administrative agencies. The officers then were asked to describe a typical zero tolerance charge and explain how, if at all, the procedures differed from those used in a DWI charge. Because juveniles (people younger than 18) are treated differently in the criminal justice system, officers were asked to describe procedures for offenders younger than 18 and for those between 18 and 21. State Selection Zero tolerance laws prohibit drivers younger than 21 from driving with a BAC of 0.02 percent or greater (0.01 in California and New Jersey; greater than 0.00 percent in Texas and Wisconsin; and any alcohol or any measurable amount of alcohol in 9 states and the District of Columbia). The laws differ as to whether ing is required for a zero tolerance and the requirements that must be met before an may be demanded. Table 1 highlights the basic differences among the laws in the five states. In California and Minnesota, a PBT at the roadside is sufficient proof of a zero tolerance, but elsewhere an is necessary. In most states, an officer who believes a young driver has been drinking may demand an. However, in 9 states an cannot be required for a zero tolerance citation unless a driver is sufficiently impaired to justify a DWI arrest. Based on the legal analysis California, New Mexico, New York, Michigan, and Virginia were chosen for on-site interviews. California's zero tolerance law appears easiest to enforce because a charge can be made based on PBT results at the roadside (Table 1). The New Mexico law appears to be the most difficult to enforce because an is necessary and may only be required of DWI suspects. New York was chosen because, like California, the sanction is purely administrative; Michigan because police officers seemed to be using the zero tolerance widely; and Virginia because among the states that represent the typical zero tolerance law, it was most convenient to the authors. Typical zero tolerance laws prohibit underage drivers

3 from having a BAC between zero and the per se BAC (0.08 or 0.10 percent) and allow evidential testing when there is suspicion of a zero tolerance. Table 1: Zero tolerance laws in five states State Underage BAC (percent) Test requirements to support zero tolerance California ³0.01 PBT or evidential test; suspicion of zero tolerance Michigan New York ³0.02 to 0.07 ³0.02 to 0.07 New Mexico ³0.02 Virginia ³0.02 to <0.08 for zero tolerance for zero tolerance for DWI for zero tolerance PBT Use Yes, sufficient evidence without Yes, if zero tolerance suspected; PBT followed by Yes, if crash or zero tolerance suspected; PBT followed by No legal impediment to use; however, officers did not use them Yes, suspicion of zero tolerance necessary; PBT followed by Zero tolerance offenders taken into custody? No; zero tolerance offenders cited and released at roadside Yes Zero tolerance offenders detained for testing, not arrested No; unless arrested for DWI and found in violation of zero tolerance Yes Results Commonalities in Zero Tolerance Enforcement Police officers in all five states described detection procedures that were no different for zero tolerance than for DWI law enforcement. Officers stop drivers who display DWI cues or violate traffic or equipment laws. Drivers are closely observed for signs of alcohol use and, if such signs are found, an investigation is initiated. If drinking is suspected, the driver is asked to exit the car, standard field sobriety tests are administered, and in many cases a PBT is given to determine if there is to bring an alcohol charge. Many officers said they give a PBT only after making a decision about impairment, wishing not to bias judgment before gathering evidence. The addition of zero tolerance laws has merely lowered the threshold for detention and subsequent investigation for drinking drivers younger than 21. According to officers, detection procedures are unchanged because prior to the stop they cannot tell if a driver is underage. Furthermore, drivers with low BACs do not exhibit driving behavior that would suggest they are impaired. Sobriety checkpoints, in which all drivers can be stopped

4 and screened, were rarely implemented in these jurisdictions, and no special efforts were made to focus either checkpoints or patrols on locations where underage drinking was most likely. Although Preusser et al. 7 reported officers typically lacked holding facilities for juveniles younger than 18, most officers in the present survey were not concerned about this issue. They rarely found juvenile zero tolerance offenders and, when they did, rarely experienced a problem finding a parent or other responsible adult to take custody. Differences in Zero Tolerance Enforcement Differences among the zero tolerance laws in the five states affect the likelihood they will be regularly used. Factors that help are the ability to cite for zero tolerance based solely on PBT results and streamlined processing and paperwork procedures. Factors that impede are evidential testing requirements (particularly where ing is possible only if a driver been arrested for DWI) and time consuming paperwork and administrative requirements. Virginia: In this and many other states, an is required to sustain a zero tolerance charge, and suspects are subject to license suspension if they refuse. The paperwork is slightly less than for DWI because administrative suspension does not apply to zero tolerance s. Once young drivers have been stopped and are suspected of a zero tolerance, there are no real barriers to enforcement. However, officers said they have made few zero tolerance arrests. New York: Zero tolerance offenders are not arrested; they are detained for the sole purpose of conducting the. Some departments expressed concern about the legality of taking a suspect who is not under arrest into custody to transport them to the police station for a chemical test. There is no legal basis for this concern, which seems to linger. According to the officers, the most problematic feature of the law is the excessive amount of paperwork required for a citation. In New York, zero tolerance license suspensions are handled by the DMV. The officer has to not only complete the paperwork for the arrest and additional paperwork required by DMV but also schedule the DMV hearing and provide a copy of all the documents to the offender prior to release. Given the effort involved in making such an arrest, officers think they are given insufficient credit on performance evaluations. These factors provide a sufficient disincentive that very few officers have made or plan to make a zero tolerance arrest. Michigan: Zero tolerance suspects are requested to take an and are subject to license suspension if they refuse. Underage enforcement, however, is strongly affected by the minor in possession (MIP) law that permits a PBT to be used as evidence of MIP. This means drivers can be cited at the roadside for this ; they do not have to be taken into custody for the. As a result, police write significantly more citations for MIP than for zero tolerance among drinking drivers. Unlike a zero tolerance conviction that can result in a 30 day license suspension, a first conviction for MIP carries no license suspension. California: A zero tolerance citation can be completed quickly and easily at the roadside. The law is administrative, and DMV handles appeal hearings. An officer who lawfully stops an underage driver and believes the driver has been drinking (e.g., odor of alcohol) may require the individual to submit to a PBT. A BAC of 0.01 percent or greater or refusal to take the PBT triggers a one-year suspension. The officer takes the driver's license at the roadside and issues a citation that notifies

5 DMV s intention to suspend the driver s license after 30 days. During that time, the driver can request an administrative hearing held by DMV. Very few appeals are successful. DMV has minimized the paperwork required for the zero tolerance citation, which consists of a single form that can be completed in less than half an hour. Drivers ages are treated as adults and left in a safe location; their vehicles are towed. Drivers younger than 18 are released to their parents or other responsible adults. The zero tolerance law applies to all drivers younger than 21 with a BAC of 0.01 percent or greater. Thus, drivers with high BACs are in violation of both zero tolerance and DWI laws. California suspends the licenses of underage DWI violators under the zero tolerance law, which has the longer suspension (1 year versus 4 months for DWI), and also prosecutes them under the DWI law. Most underage offenders are in violation of the DWI law. New Mexico: Officers reported that their enforcement activities with respect to underage drivers have been essentially unchanged by the zero tolerance law. They confirmed they cannot take youthful offenders into custody unless they have reason to believe the drivers are in violation of DWI. Thus, there is no mechanism for testing a driver for a possible zero tolerance violation, and independent enforcement of the law is not possible. As a result, officers indicate the law is not being used. Discussion Zero tolerance laws in five states rarely are being enforced independently of DWI laws. Typically, zero tolerance laws are used when DWI enforcement yields an underage driver with a low BAC. When such drivers are identified, zero tolerance laws create opportunities for early intervention. Prior research on deterring DWI suggests the threat of license suspension should be a very effective deterrent to drinking and driving among young people. 8 As this study indicates, some laws make it easier than others for an officer to issue a zero tolerance citation once a driver has been stopped. Requirement that zero tolerance s be supported by s creates practical impediments. Low BACs may dissipate before an can be given, and ing is costly and labor intensive. In a number of states, the implied consent law requires either an arrest for DWI or for such an arrest before an can be administered. This means the only people who can be charged with zero tolerance are those who initially were arrested for DWI and subsequently found to be violating zero tolerance. Allowing officers to use a PBT at the roadside as evidence of a zero tolerance makes it easier to cite a young driver and could encourage more widespread use of the law. There is evidence in Michigan that the minor in possession law, which permits a PBT result to be used as evidence of an, is preferred by officers over the zero tolerance law, which requires an. If zero tolerance arrests are perceived by officers or their supervisors as too costly in terms of the time it takes to make and process the charge, or in court time at a later date, enforcement efforts will be negligible. California and New York were at opposite ends of the spectrum in terms of the paperwork necessary to bring a zero tolerance charge. The California DMV worked closely with police in designing a form that would be quick and easy to complete in the field, but in New York the paperwork requirement frequently was mentioned as a disincentive to enforcement.

6 The lack of driving or behavioral cues for low BACs makes it difficult for patrolling officers to identify zero tolerance offenders. Greater use of checkpoints, particularly in areas where it is believed young people congregate to drink, should be considered. Consideration should be given to employing passive alcohol sensors, which have been shown to substantially increase detection rates among drivers with high and low BACs at checkpoints. 9 In summary, the California zero tolerance law provides a good model because of the ease with which a citation can be issued at the roadside and the minimal paperwork burden for officers. However, even if the laws in all states were easy to enforce, there still are potential problems. Community leaders, police departments, and officers themselves must be convinced that underage drinking and driving, even with low BACs, is an important public health issue that requires the commitment of significant resources. References 1. Insurance Institute for Highway Safety. Fatality facts: alcohol. Arlington, VA. Available: Accessed: December 28, Wagenaar AC. Minimum drinking age and alcohol availability to youth: issues and research needs. In: Hilton M.E. and Bloss G, editors, Economics and the Prevention of Alcohol- Related Problems (research monograph no. 25, NIH publication no ). National Institute on Alcohol Abuse and Alcoholism, Bethesda, MD, 1993, pp Voas RB, Tippetts AS, Fell, JC. The United States limits drinking by youth under age 21: does this reduce fatal crash involvements? In: Association for the Advancement of Automotive Medicine, Proceedings of the 43rd Annual Conference, Association for the Advancement of Automotive Medicine, Des Plaines, IL, 1999, pp Williams AF. Raising the legal purchase age in the United States: its effects on fatal motor vehicle crashes. Alcohol, Drugs, and Driving 1986;2: Hingson R, Heeren T, Winter M. Lower legal blood alcohol limits for young drivers. Pub Health Rep 1994;109: Blomberg R. Lower BAC limits for youth: evaluation of the Maryland.02 law. U.S. Department of Transportation, Washington (DC) 1992, DOT-HS Preusser DF, Ulmer RG, Preusser CW. Obstacles to enforcement of youthful (under 21) impaired driving. National Highway Traffic Safety Administration, Washington (DC) 1994, DOT-HS Ross HL. Deterring the Drinking Driver. D.C. Heath and Company, Lexington, MA, Ferguson SA. Comments on Identification of alcohol impairment on initial interview. Transportation Research Circular. Transportation Research Board, Washington (DC) in press.