CHAPTER IV. STATE LAWS, POLICIES AND PRACTICES GOVERNING BAC TESTING

Fatally Injured Drivers

In 2002, the FARS annual report file showed that 74 percent of the drivers killed in the U.S. were tested for alcohol, with known BAC test results recorded for 65 percent (Traffic Safety Facts 2002: State Alcohol Estimates, DOT HS 809 617). The median State tested 81 percent of fatally injured drivers and results were known for 75 percent. State-by-State data were presented in Chapter I. The final 2002 data will be released in summer 2004 and likely will increase these figures slightly.

Laws Governing BAC Testing

The States can be grouped into one of three categories regarding laws governing BAC testing of fatally injured crash victims. Appendix D lists the States with each type of law.

· Mandatory Testing

Laws in 25 States require coroners or medical examiners to test all victims of motor vehicle crashes for alcohol and report the results. For example, Oregon law reads, “When a death requiring an investigation as a result of a motor vehicle accident occurs within five hours after the accident and the deceased is over 13 years of age, a blood sample shall be taken and forwarded to an approved laboratory for analysis. Such blood or urine samples shall be analyzed for the presence and quantity of ethyl alcohol, and if considered necessary by the State Medical Examiner, the presence of controlled substances. Laboratory reports of the analysis shall be made a part of the State Medical Examiner’s and district medical examiner’s files”, and transmitted “monthly to the Department of Transportation…”

The median State in this group tested 82 percent of its fatally injured drivers in 2002, and had known BAC results for 81 percent. However, these “mandatory” laws are not always obeyed. As Table 5 shows, one State tested only 43 percent of fatally injured drivers.

· Discretionary Testing

Laws in 11 States authorize, but do not require BAC testing for crash victims. For example, Texas law reads, “(b) If the person is dead, a specimen may be taken by: (1) the county medical examiner or the examiner's designated agent; or (2) a licensed mortician or a person authorized under Section 724.016 or 724.017 if there is not a county medical examiner for the county.” In three of these States, the standard is that a test must be conducted when there is reasonable grounds or probable cause to believe that the driver was under the influence of alcohol (or equivalent). Testing in other circumstances is discretionary.
The median State in this group tested 70 percent and recorded known BAC results for 61 percent of its fatally injured drivers in 2002.


· No Law Governing Testing
Fourteen States and the District of Columbia have no law regarding alcohol testing of fatally injured crash victims. The median State tested 80 percent and reported known BACs for 76 percent of its fatally injured drivers.

Tables 5 and 6 summarize the testing and known BAC rates for States with the three types of laws. As Table 5 shows, States with mandatory testing laws had the highest median testing rate, followed very closely by States that had no testing law, and then by States that had discretionary laws. The rates varied widely for States with each law type. The known BAC rates follow the same pattern. In fact, four States with mandatory laws tested fewer than 60 percent of all fatally injured drivers, while Vermont, a State with no special law, had the highest overall testing rate of 98 percent. A mandatory law by itself does not guarantee a high testing rate, and high rates can be obtained under each type of law.

Table 5. BAC Testing Rates by State Law Type, Fatally Injured Drivers, FARS 2002

State law type
Lowest State’s rate
Median State’s rate
Highest State’s rate
Mandatory test
43 %
82 %
91 %
Discretionary test
37 %
70 %
83 %
No law
16 %
80 %
98 %

Table 6. Known BAC Rates by State Law Type, Fatally Injured Drivers, FARS 2002

State law type
Lowest State’s rate
Median State’s rate
Highest State’s rate
Mandatory test
42 %
81 %
91 %
Discretionary test
5 %
61 %
81 %
No law
16 %
76 %
98 %

 

Survival Time

Another factor that affects testing rates is survival time. Drivers who die at the crash scene, or shortly thereafter, immediately become the responsibility of the coroner or medical examiner system for custody and testing. Drivers who survive for some period of time after the crash normally will be taken to a medical facility. Post mortem BAC testing of drivers who survive many hours would be meaningless and State laws that authorize testing typically do so only when the victim dies within a specified number of hours of the crash. BAC data for drivers who survive for several hours before dying usually must depend on blood samples drawn for medical reasons when the driver is admitted to a hospital.
In 2001, using final FARS file data, 57 percent of all fatally injured drivers in the U.S. died within one hour of their crash. The known BAC rate for this group was 76 percent. Twenty-two percent of the fatally injured drivers survived for at least an hour, but died within 12 hours of their crash. The known BAC rate for this group was 71 percent. Finally, 21 percent of the drivers died after longer periods or had missing crash or death times in FARS. The known BAC rate for this group was 47 percent.

In 2001, eight States tested 95 percent or more of fatally injured drivers who died within an hour of their crash. Four of these States have mandatory testing laws and four have no laws regarding testing. This shows that it is possible to test virtually all drivers who die shortly after their crash even without a mandatory testing law.

Surviving Drivers

In 2002, FARS reported that 30 percent of the surviving drivers in fatal crashes were tested for alcohol, with known BAC test results recorded for 25 percent. The median State tested 33 percent and results were known for 25 percent. The final 2002 data will be released in summer 2004 and likely will increase these figures slightly. State-by-State data were presented in Chapter I.

Laws Governing BAC Testing

State implied consent laws define the circumstances under which a law enforcement officer can request a motorist to submit to a chemical test for alcohol. In a typical Driving While Impaired (DWI) investigation, the law allows this request when the law enforcement officer has reasonable grounds or probable cause to believe that the motorist was operating in violation of the State’s impaired driving law. Many States modify these laws for drivers involved in crashes resulting in serious injury or fatality. The States can be grouped according to the laws that govern BAC testing of surviving drivers involved in fatal crashes. Appendix E lists the States in each group and summarizes each State’s laws.

· Mandatory Testing

Five States require or permit a law enforcement officer to request a test from all surviving drivers in a fatal crash. For example, Maine’s law reads, “If there is probable cause to believe that death has occurred or will occur as a result of an accident, an operator of a motor vehicle involved in the motor vehicle accident shall submit to a test to determine blood-alcohol level or drug concentration in the same manner as for OUI. The investigating law enforcement officer shall cause a test to be administered as soon as practicable following the accident…”. Two other States, Mississippi and Pennsylvania, had similar laws that were declared unconstitutional by State courts.

Maine leads this group of States, testing and reporting data from 90 percent of surviving drivers in 2002. The median State testing rate was 79 percent.

· Reduced Standard

Five States have laws that reduce in some way the standard required for a law enforcement officer to request a test from a surviving driver in a fatal or potentially fatal crash. In Missouri, a BAC test request of a surviving driver is authorized “whenever the person has been arrested or stopped for any reason.” Illinois’ law is similar. In Arizona, the test request can be made when, “a law enforcement officer has probable cause to believe that the person caused the accident or the person is issued a citation…” In New Hampshire, a law enforcement officer shall obtain a blood sample for testing when, “the officer has probable cause to believe that the driver caused the collision.” In Vermont, a test is required when a law enforcement officer has reasonable grounds to believe that the driver has any amount of alcohol.

In 2002, New Hampshire tested 76 percent and recorded known BAC results for 75 percent of surviving drivers. The other four States all tested and reported no more than 25 percent.

· Drivers Required to Submit to a Test Request

Thirty States and the District of Columbia have implied consent provisions for drivers involved in fatal crashes that do not reduce the standard for requesting a chemical test, but do make test submission mandatory when the implied consent provisions have been met. For example, Louisiana law says, “When a law enforcement officer has probable cause to believe that a person has violated [DWI] that person may not refuse to submit to a chemical test in any case wherein a traffic fatality had occurred or a person has sustained serious bodily injury” The laws in a few States specifically authorize the use of “reasonable force” to administer a blood test. In eight States, a forced blood draw can be done only if a court order or search warrant is obtained. In Delaware, where submission to a test is mandatory when there is probable cause, the law encourages law enforcement officers to be diligent in their investigations: “In the event of a fatal accident if the officer does not believe that a probable cause exists to require testing, then the officer shall file a written report outlining the reasons for that determination.”

Mandatory testing, with or without a court order, may apply to DWI situations other than fatal crashes (non-fatal injury crashes or any DWI investigation). For example, California law says, “A person who has been arrested for DWI may be compelled to submit to a blood test for either alcohol concentration or the presence of drugs.”

The median testing rate for surviving drivers in these States was 32 percent in 2002.

· Testing Authorized for Statistical Purposes

One State, New Jersey, authorizes surviving drivers to be tested for statistical purposes. New Jersey tested 22 per cent of surviving drivers in 2002.

· No Law Governing Testing

Nine States have no laws to facilitate BAC testing for surviving drivers in fatal crashes. The same standard for requesting a BAC test applies in a fatal crash as in any other DWI situation, and forced blood draws are not permitted. The median testing rate for these States was 33 percent in 2002.

Tables 7 and 8 summarize the testing and known BAC rates for States with different law types. The five mandatory test law States had by far the highest testing rates, followed by States with no special law. As with fatally injured drivers, the testing rates varied widely for States with each law type. At least one State in each law category (with the exception of the statistical purposes law) tested more than 70 percent of the surviving drivers. Clearly, high testing rates can be achieved under any of the common law types.

Table 7. BAC Testing Rates by State Law Type, Surviving Drivers, FARS 2002

State law type
Lowest State’s rate
Median State’s rate
Highest State’s rate
Mandatory test
47 %
79 %
90 %
Reduced standard
9 %
22 %
76 %
Required if DWI
4 %
32 %
74 %
Statistical purposes  
22 %
 
No law
1 %
33 %
72 %


Table 8. Known BAC Rates by State Law Type, Surviving Drivers, FARS 2002

State law type
Lowest State’s rate
Median State’s rate
Highest State’s rate
Mandatory test 45 % 69 % 90 %
Reduced standard 6 % 22 % 75 %
Required if DWI 1 % 29 % 72 %
Statistical purposes   20 %  
No law 1 % 27 % 63 %


Voluntary Tests

Some law enforcement agencies in some States have a policy or practice to request voluntary BAC tests of all surviving drivers in fatal crashes, regardless of whether the State has a mandatory testing law. Tests are requested from drivers suspected of DWI under normal DWI procedures. Tests for other drivers can provide objective evidence that they were in fact not impaired. In Louisiana and Minnesota, for example, State Patrol and other agencies routinely request BAC tests of all surviving drivers. The known BAC rates for surviving drivers in 2002 were 72 percent in Louisiana and 62 percent in Minnesota.

Laws Related to Treatment Personnel

Many surviving drivers in fatal crashes are injured and transported to medical facilities for treatment. Law enforcement officers investigating the crash scene may find physical evidence, witness reports, or other reasons that provide probable cause to believe an injured and transported driver had been operating in violation of the impaired driving law. To proceed with the investigation, a law enforcement officer must go to the treatment facility and seek a BAC test of the driver (usually a blood draw).

In March 1999, the National Commission Against Drunk Driving and the National Highway Traffic Safety Administration convened a working group to discuss the issues involved in obtaining BAC data from hospitals and emergency rooms. The group consisted of 27 persons including law enforcement officers, physicians, nurses, insurance representatives, prosecutors, researchers, and representatives of the sponsoring organizations. Its consensus recommendations included:

The group’s report, “Drunk Drivers Escaping Detection Through the Emergency Room,” (NCADD, 1999) provides a full discussion. It is available at www.ncadd.com.

Insurance Laws and Regulations

A common medical practice is to draw blood for clinical purposes when trauma patients are first seen in emergency rooms. The blood sample is used to determine blood type and to learn if any substances are present that could adversely affect treatment and recovery. If a driver dies well after the crash, this clinical blood sample will be the only source of a useful BAC test result. In some circumstances, a portion of the blood from this sample or the BAC determined from it may be available. In some jurisdictions, upon death, medical examiners have access to the medical records, including the BAC test result. In some States, medical BAC test results for surviving drivers may be obtained by subpoena in criminal cases.

The National Association of Insurance Commissioners (NAIC) promulgates a Uniform Accident and Sickness Policy. Until recently, that policy had a provision that allowed insurers to deny payment for the entire medical treatment of intoxicated individuals. More than 30 States adopted this provision in their Uniform Accident and Sickness Policy Laws. Hospitals, emergency treatment facilities, and other health care providers are understandably reluctant to report BAC data to law enforcement if these data can be used to affect the patient’s insurance coverage. Some States report that these provisions in their States do in fact substantially impede BAC testing and reporting.

The American College of Emergency Physicians and others have urged NAIC to repeal the provision, noting that nearly 50 percent of patients admitted to trauma centers are under the influence of alcohol/drugs and that the provision is a major disincentive to substance abuse screening. In 2001, NAIC voted to repeal the payment denial provision. In some States with this provision, the State insurance commission can repeal it administratively. Repeal in other States will require legislative action.

Examples of laws applicable to the various aspects of BAC testing in fatal crashes can be found in Appendix F.

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