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Driving under the influence
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Driving under the influence of alcohol (driving while intoxicated, drunk driving, drinking and driving, drink-driving) or other drugs, is the act of operating a vehicle (including bicycle, boat, airplane or horse) after consuming alcohol or using drugs. It is a criminal offense in most countries.
urisdictions of most countries, anyone who is convicted of injuring or killing someone while under the influence of alcohol or drugs can be heavily fined, as in France, in addition to being given a lengthy prison sentence.
The specific criminal offense may be called, depending on the jurisdiction, driving while intoxicated (DWI), operating while intoxicated (OWI), operating a motor vehicle while intoxicated (OMVI), driving under the influence [of alcohol or other drugs] (DUI), driving under the combined influence of alcohol and/or other drugs, driving under the influence per se or drunk in charge [of a vehicle].
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Encyclopedia
Driving under the influence of alcohol (driving while intoxicated, drunk driving, drinking and driving, drink-driving) or other drugs, is the act of operating a vehicle (including bicycle, boat, airplane or horse) after consuming alcohol or using drugs. It is a criminal offense in most countries.
Overview
In jurisdictions of most countries, anyone who is convicted of injuring or killing someone while under the influence of alcohol or drugs can be heavily fined, as in France, in addition to being given a lengthy prison sentence.
The specific criminal offense may be called, depending on the jurisdiction, driving while intoxicated (DWI), operating while intoxicated (OWI), operating a motor vehicle while intoxicated (OMVI), driving under the influence [of alcohol or other drugs] (DUI), driving under the combined influence of alcohol and/or other drugs, driving under the influence per se or drunk in charge [of a vehicle]. Such laws usually (but not always) also apply to boating (as in Canada), piloting aircraft, or driving a bicycle.
Historically, guilt was established by observed driving symptoms, such as weaving; administering field sobriety tests, such as a walking a straight line heel-to-toe or standing on one leg for 30 seconds; and the arresting officer's subjective opinion of impairment. Starting with the introduction in Norway in 1936 of the world’s first per se law which made it an offense to drive with more than a specified amount of alcohol in the body, objective chemical tests have gradually supplemented the earlier purely judgmental ones. Limits for chemical tests are specific for blood alcohol concentration or concentration of alcohol in breath.
With the advent of a scientific test for blood alcohol content (BAC), enforcement regimes moved to pinning culpability for the offense to strict liability based on driving while having more than a prescribed amount of blood alcohol, although this does not preclude the simultaneous existence of the older subjective tests. BAC is most conveniently measured as a simple percent of alcohol in the blood by weight. It does not depend on any units of measurement. In Europe it is usually expressed as milligrams of alcohol per 100 millilitres of blood. However, 100 milliliters of blood weighs essentially the same as 100 milliliters of water, which weighs precisely 100 grams. Thus, for all practical purposes, this is the same as the simple dimensionless BAC measured as a percent. Since 2002 it has been illegal in all 50 US states to drive with a BAC that is 0.08% or higher.
The validity of the testing equipment/methods and mathematical relationships for the measurement of breath and blood alcohol have been criticized. (Taylor 2007)
Driving while consuming alcohol may be illegal within a jurisdiction. In some it is illegal for an open container of an alcoholic beverage to be in the passenger compartment of a motor vehicle or in some specific area of that compartment.
The German model serves to reduce the number of accidents by identifying unfit drivers and removing them from traffic until their fitness to drive has been established again. The Medical Psychological Assessment (MPA) works for a prognosis of the fitness for drive in future, has an interdisciplinary basic approach and offers the chance of individual rehabilitation to the offender.
George Smith, a London taxi driver, was the first person to be convicted of drunk driving, on 9 September 1897. He was fined 20 shillings.
=Laws by country=
- China: 0.02% (CNY $200-$500 fine, 1-3 months license suspension); 0.08% (up to 15 days prison, 3-6 months license suspension, CNY 500-2000 fine)
- Hong Kong: 0.05%. Driving under the influence of alcohol beyond legal limit is punishable with a monetary fine and up to three years imprisonment, with 10 driving-offense points and mandatory Driving Improvement Course.
- Japan: 0.03% [since June 2002]
- Republic of Korea: 0.05%
- Taiwan: 0.05% (BrAC 0.25 mg/L)
Western Asia
- Armenia: Zero
- Azerbaijan: Zero
- Georgia: 0.03%
- Iran: No limit, alcohol is banned.
- Israel: 0.05%
- Jordan: Zero
- Kuwait: No limit, alcohol is banned.
- Saudi Arabia: No limit, alcohol is banned.
- Turkey: zero for commercial transport and public service drivers. Turkey’s 0.05% limit only applies to passenger-less compact vehicles; for all others it is 0.00%.
The Americas
The Criminal Law Amendment Act, 1968-69 made it a "per se" offence to drive with a blood alcohol content (BAC) in excess of 80 mg/100 ml of blood. Refusal of a police officer's demand to provide a breath sample was made an offence at the same time and both began as summary conviction offences, with a mandatory minimum C$50 fine.
Driving under the influence of alcohol is a generic term for a series of offences under the Criminal Code of Canada. The main offences are operating a motor vehicle while the ability to do so is impaired by alcohol or a drug, contrary to section 253(a) of the Canadian Criminal Code, and operating a motor vehicle while having a blood alcohol concentration of greater than 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 253(b) of the Criminal Code. See
Both offences can be committed by a person who is actually operating or driving a motor vehicle, vessel, aircraft, or railway equipment or by a person who has care or control of such a vehicle. Care or control includes actual care or control and presumed care or control section 260(1)(a) where the person occupies the driver's seat. The latter is often the case where police find an individual sleeping behind the wheel.
The offences are usually investigated by the police coming across a driver with either an erratic driving pattern or who has been pulled over. The police may immediately have grounds to arrest for impaired driving and make an approved instrument demand section 254(3). Those grounds are based on various indicia of impairment. If the police merely have a suspicion of alcohol in the individual's body, they may make a demand section 254(2)that the driver give a sample of his breath into an approved screening device, which will determine the driver's blood-alcohol concentration on a preliminary, non-evidentiary basis. Based on the screening device results, if the police believe on reasonable and probable grounds that the driver is committing an offence under section 253 of the Criminal Code, the police can demand that the driver go to the police station to give samples of his breath for an approved instrument test, which would be used to prosecute the driver for over 80 milligrams of alcohol in 100 millilitres of blood.
The minimum punishments for impaired driving or driving over 0.08% are:
- For the first offense: $1000 fine, 1-year driving prohibition; or jail time
- For the second offense: 30 days jail, 2-year driving prohibition
- For the third or subsequent offense: 120 days jail, 3-year driving prohibition.
In addition to the federal criminal laws, all provincial governments have enacted their own measures against impaired driving. Such laws complement the federal laws (part of the double aspect doctrine of Canadian constitutional law). Some provinces will suspend a driver's licence upon him or her being charged with impaired driving, rather than being convicted. Some provinces will automatically impose a licence suspension that runs longer than the driving prohibition handed down by the court. Provincial and federal driving prohibitions run concurrently if imposed for the same offence(s)at the same time.
In Ontario, a person convicted of a DUI must also complete an 8 month training course and install an ignition interlock device for a period of one year after the licence suspension. Jail time can be imposed for any first time Criminal Code drinking and driving offence. Jail is appropriate where there is an accident and/or the readings are high. Readings above 160 mg/100mLs are an aggravating circumstance. Jail is the minimum punishment for second and third offences.
Foreigners with recent (in the past 5 years) drunk-driving criminal convictions are generally refused entry at the border. Canada's Immigration Act section 36 considers any foreign drinking and driving outstanding charge or conviction as an Indictable offence (similar to a felony) unless a prosecutor has chosen to proceed by summary conviction.
On January 27, 2001, Andrey Knyazev, a Russian diplomat in Canada killed a Canadian woman while drinking and driving. He was imprisoned in Russia. This incident triggered a crackdown on drunk driving by diplomats in Canada.
On Dec 15, 2005, Charly Hart of Watford, Ontario, a man with a 35-year history of impaired driving which included thirty-nine convictions, was on the occasion of his latest such conviction sentenced to six years in prison, the most severe penalty ever handed down in Canada when the offence did not involve a fatality, and the maximum sentence permitted under the law.
Some states now have two statutory offenses. The first is the traditional offense, variously called driving under the influence of alcohol (DUI), driving while intoxicated/impaired (DWI) or operating while intoxicated/impaired (OWI). The second and more recent is the so-called illegal per se offense of driving with a blood-alcohol concentration (BAC) of 0.08% (previously 0.10%) or higher. The first offense requires proof of intoxication, although evidence of BAC is admissible as rebuttably presumptive evidence of that intoxication; the second requires only proof of BAC at the time of being in physical control of a motor vehicle. An accused may be convicted of both offenses, but may only be punished for one.
It is also a criminal offense in all states to drive a vehicle while under the influence of drugs DUID, or under the combined influence of alcohol and drugs; the drugs themselves need not be illegal, but can be prescription or even over-the-counter. In some states, the effects of some herbal remedies (such as Kava Kava extract) fall into this category. This offense requires evidence of impairment as a result of the drugs or drugs and alcohol, although some states have passed laws making driving with the mere presence of certain drugs a criminal offense. A number of states have expanded upon DUI laws to make operating a motor vehicle while impaired a punishable offense, which includes sleep deprived driving, among other things.
Some states also include a lesser charge of driving with a BAC of 0.05%; other states limit this offense to drivers under the age of 21. All states also now have zero tolerance laws: the license of anyone under 21 driving with a BAC of .01% or higher (.02% in some states) will be suspended.
The blood-alcohol limit for commercial drivers is 0.04%. Commercial drivers are also subject to stricter punishments for exceeding the blood-alcohol limit.
Pilots of aircraft may not fly less than eight hours after consuming alcohol, while under the impairing influence of alcohol or any other drug, or while showing a blood alcohol concentration equal to or greater than 0.04 grams per decilitre of blood.
The various versions of "driving under the influence" generally constitute a misdemeanor (punishable by up to one year in jail). However, the offense may be elevated to a felony (punishable by a longer term in state prison) if the incident caused serious injury (felony DUI), death (vehicular manslaughter or vehicular homicide), or extensive property damage (a state specified dollar amount) or if the defendant has a designated number of prior DUI convictions within a given time period (commonly, 3 prior convictions within 7 years). California, which is being followed by a growing number of states, now charges second-degree murder where the legal state of mind of malice exists -- that is, where the defendant exhibited a reckless indifference to the lives of others.
Administrative License Suspension (ALS)
- Drivers stopped for drunk driving who refuse to take the sobriety test or whose test results exceed the legal limit of Blood Alcohol Concentration (BAC) may have their driver's license confiscated on the spot, and their suspension begins immediately (Florida).
- This is a common misconception. Florida Law clearly states (note bold portions):
316.1932 Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages. The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.
- Law enforcement officers conduct Field Sobriety Tests (FSTs), including the use of portable breath analyzers (PBAs) for the purposes of determining if probable cause exists for an arrest. Until an arrest has been made, a motorist is under no obligation to perform any test. Most states consider such a pre-arrest refusal inadmissible in court.
- Depending on previous offenses or refusals, licenses may be automatically suspended for a period of 90 days to five years, or permanently revoked for multiple DWI convictions (Connecticut).
- As of 2005, only nine states did not have ALS laws: Kentucky, Michigan, Montana, New Jersey, New York, Pennsylvania, Rhode Island, South Dakota and Tennessee.
An SR-22 is an official documentation required to redeem a suspended drivers license and get a car registered at the local Department of Motor Vehicles (DMV). A SR22 Filing is a form issued by an insurance company which removes a suspension order placed by the DMV's office on an individual's driving privilege. The most common reason for an SR22 filing is an arrest for Driving Under Intoxication (DUI) or Driving While Intoxicated (DWI). The filing provides a guarantee to the state that an insurance company has issued at least minimum liability coverage for the person making that filing and that the insurance company will notify the DMV should the insurance ever lapse for any reason.
- Argentina: 0.05% for cars, 0.02% for motorcycles.
- Bolivia: 0.07%
- Brazil: 0.02% legally zero but a 0.02% tolerance is in place until the new law is regulated. If driving under the influence of alcohol, one can be fined - R$ 957 ($600) and 1-year driving prohibition; imprisonment if involved in an accident or found with more than 0.06% BAC. (since June 2008)
- Chile: 0.049%
- Colombia: 0.04%
- Ecuador: 0.07%
- Guyana: 0.01%
- Honduras: 0.07%
- Paraguay: 0.08%
- Peru: 0.045%
- Suriname: 0.08%
- Uruguay: 0.08%
- Venezuela: 0.05%
- Austria: 0.05% and 0.01% for drivers who have held a licence for less than 2 years and drivers of vehicles over 7.5 tonnes
- Belgium: 0.05%
- Bulgaria: 0.05%
- Czech Republic: Zero
- Cyprus
- Denmark: 0.05%, imprisonment if over 0.08%, zero if involved in an accident
- Estonia: 0.02%
- France: 0.05%, 0.08% (aggravated)
- Finland: 0.05%, 0.12% (aggravated)
- Germany: zero for beginners (less than 2 years' experience and drivers under the age of 21) as well as drivers making commercial transportation of passengers; 0.03% in conjunction with any other traffic offence or accident; 0.05% without evidence of alcoholic impact; penalty for 0.11% is driver licence withdrawn for about one year; for 0.16% regranting of the licence requires a successful medical-psychological driver assessment
- Greece: 0.05% and 0.02% for drivers who have held a license for less than 2 years and bus drivers
- Hungary: Zero
- Ireland: 0.08%, to be reduced to 0.05% or 0.02% for learner and professional drivers.
- Italy: 0.05%
- Latvia: 0.02% for drivers with less than 2 years of experience and 0.05% for those with more than 2 years of experience
- Lithuania: 0.04%
- Luxembourg: 0.05% and 0.02% for professional drivers and drivers with less than 2 years of experience (since October 1, 2007)
- Malta: 0.08%
- Netherlands: 0.05%, 0.02% for drivers with less than 5 years' experience
- Poland: 0.02%
- Portugal: 0.05%
- Romania: Zero
- Slovakia: Zero
- Slovenia: Zero for drivers with 2 years or less experience and professional drivers, 0.24 mg/l (0.05%) for all others.
- Spain: 0.05% and 0.03% for drivers with less than 2 years experience and drivers of freight vehicles over 3.5 tonnes, and of passenger vehicles with more than 9 seats.
- Sweden: 0.02% (up to 6 months imprisonment), 0.10% (imprisonment, maximum 2 years)
- United Kingdom: 0.08%
In the UK, driving or attempting to drive whilst above the legal limit or unfit through drink carries a maximum penalty of six months' imprisonment, a fine of up to £5,000 and a minimum 12 months' driving ban. An endorsement for a drink-driving offence remains on a driving licence for 11 years. Being in charge of a vehicle whilst over the legal limit or unfit through drink could result in three months' imprisonment plus a fine of up to £2,500 and a driving ban.
The penalty for refusing to provide a specimen of breath, blood or urine for analysis is a maximum six months' imprisonment, up to £5000 fine and a driving ban of at least 12 months. Causing death by careless driving when under the influence of drink or drugs carries a maximum penalty of 14 years in prison, a minimum two-year driving ban and a requirement to pass an extended driving test before the offender is able to drive legally again.
The offence of driving whilst under the influence of alcohol is one to which there is no defence, as such. However, it may be possible to argue that special reasons exist which are such that you should not be disqualified from driving despite having committed the offence. Reasons which have been held to amount to special reasons include:
- shortness of distance driven;
- unintentional commission of the offence (i.e. laced drinks);
- emergencies.
Note, however, that special reasons are notoriously difficult to establish and the burden of proof is always upon the accused to establish them.
Note: "Zero" usually means "below detection limit".
Magistrates sentencing guidelines
In England and Wales when drink drive offenders appear before a Magistrates Court, the Magistrates have guidelines they refer to before they decide on a suitable sentence to give the offender. These guidelines are issued by the Sentencing Guidelines Council and cover offences for which sentence is frequently imposed in a magistrates’ court when dealing with adult offenders.
Offences can either be tried summarily which means they can only be heard in the magistrates court or they can be either way offences which means magistrates may find their sentencing powers are insufficient and indict the case to crown court. The majority of drink driving offences are summary only offences which can only be tried in a magistrates court. Only the most serious offences such as where there is evidence of dangerous driving or there is a death involved are indicted to crown court. The maximum sentence magistrates can usually impose is a £5,000 fine and/or a six-month prison sentence.
Other European countries
Road laws are state or territory based, but all states and territories have set the maximum BAC at 0.05%.
In Australia, laws allow police officers to stop any driver and perform a random breath test without reason. Roadblocks can be set up - for example leading out of town centres on Friday and Saturday nights, or during football or other events - where every single driver will be breath-tested. This differs from UK and US laws, where police generally need a reason to suspect that the driver is intoxicated, before requesting a breath and/or sobriety test.
- 0.02% for drivers holding a learner, provisional, probationary or restricted licence; or for drivers of a heavy vehicle (>4,500 kg GVM), dangerous goods vehicle, Commonwealth (government) vehicle, public passenger vehicle (e.g. taxi or bus), private hire car or restricted hire car
- 0.05% for motorcyclists and all other drivers
- Zero for Learner and Provisional licences
- 0.02% for Drivers of vehicles of "gross vehicle mass" greater than 13.9 tonnes, vehicles carrying dangerous goods or public vehicles such as a taxi or bus.
- 0.05% for all other drivers
Northern Territory
- Zero for provisional (probationary) licence holders.
- 0.05% for all other drivers.
- A Zero limit applies to the drivers of trucks, buses, articulated vehicles, vehicles carrying dangerous goods, pilot vehicles, taxis, all learner drivers and provisional drivers under 25 years of age.
- 0.05% for other drivers.
- Zero limit for methamphetamine, Cannabis and MDMA.
- Zero limit for learner, provisional, probationary, heavy (greater than 15 tonne) vehicle, taxis, licensed chauffeured vehicles, dangerous goods, and bus licences.
- 0.05% for all other drivers.
- Zero limit for methamphetamine, Cannabis and MDMA.
- Zero limit for learner, provisional, truck, bus, and taxi licences.
- 0.05% for all other drivers.
- Zero limit applies for unlicensed drivers, holders of learner permits and probationary licences, "professional" drivers, and certain relicensed drink-drivers.
- Below 0.05% for most other drivers.
- Zero limit for methamphetamine, Cannabis and MDMA.
There are also other restrictions for drivers in Victoria:
- Limits apply within 3 hours of driving - that is, police can require a person to submit to an alcohol or drugs test within 3 hours of driving and it is an offence to fail that test, unless the drug or alcohol use occurred after driving (see Road Safety Act 1986, ss. 49, 53 and 55E).
- Licences cancelled for certain serious drink-driving offences may only be reissued after obtaining a court order. This is the case for repeat offenders, and first offenders above 0.15% . In such cases, the relicensed driver is subject to a zero limit for 3 years following relicensing, or for as long as the person is required to use an alcohol interlock.
- Alcohol interlocks must be imposed whenever a repeat drink-driver is relicensed.
- A court also has discretion to impose an alcohol interlock when relicensing a first offender in certain serious cases, generally when the offence involves a BAC of 0.15% or higher.
- If a doctor sees any patient who is aged 15 years or over as a result of a motor vehicle accident, the patient must allow the doctor to take a blood sample for testing for alcohol and drug content in a way that preserves the chain of evidence. If this process is skipped the doctor may not be able to discover the alcohol blood level. The results can be used as evidence in subsequent court proceedings.
- The law allows a police officer to require any driver (or any person who has driven a vehicle within the last three hours) to perform a random saliva test for methamphetamine, Cannabis or MDMA, all of which are subject to a zero limit (see Road Safety Act 1986: ss. 49, 55E & 55D)
- 0.02% for learner, provisional (probationary) licence holders (0.00% as from July 1 2008) or persons convicted of driving under the influence (for three years after the offence) and failing to comply with a request for breath, blood or urine (for three years after the offence).
- 0.05% for all other drivers.
Readings over 0.08% but under 0.15% BAC, and 0.15% BAC and above (legally defined as Drink Driving) comprise separate offences, the latter attracting heavier penalties. Persistent offenders may be barred from driving for terms up to and including life, and may also be imprisoned.
The law allows a police officer to require any driver to perform a random saliva test for methamphetamine, Cannabis or MDMA, all of which are subject to a zero limit
The system in New Zealand is age-based.
- 0.03% for persons under 20 years.
- 0.08% for persons 20 years and over.
The penalties for exceeding the limit are:
- Persons under 20 years - up to 3 months imprisonment and/or up to NZ$2250 fine; loss of license for three months or more.
- Persons 20 years or over (first and second offences) - up to 3 months imprisonment and/or up to NZ$4500 fine; loss of license for six months or more.
- Persons 20 years or over (third and subsequent offences) - 2 years imprisonment; NZ$6000 fine; loss of license for one year or more.
The penalty for injuring or killing someone when under the influences is the same as dangerous driving (up to 5 years imprisonment and/or up to NZ$20,000; loss of license for one year or more.)
Other
See also
External links
- , Ontario Ministry of Transportation website educating drivers on the consequences of being caught driving impaired in the province
- (UK organisation)
- 30/07/07
- Mark R. Crovelli "Drunk Driving Laws Cause Drunk Driving Accidents" http://www.lewrockwell.com/orig7/crovelli5.html
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