DOT HS 809 756

DEPARTMENT OF TRANSPORTATION
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

TECHNICAL SUMMARY

CONTRACTOR Preusser Research Group, Inc	CONTRACT NUMBER DTNH22-98-D-45079
REPORT TITLE State Laws and Practices for BAC Testing and Reporting Drivers Involved in Fatal Crashes	REPORT DATE March 2004
REPORT AUTHOR (S) James H. Hedlund, Robert G. Ulmer and Veronika Shabanova Northrup

This report presents the results of a study of alcohol testing and reporting methods and rates for drivers involved in fatal traffic crashes. It identifies the best practices currently in use and the major barriers to increasing testing, as determined from detailed studies of ten States. It concludes with suggestions for implementing these best practices.

BACKGROUND

The National Highway Traffic Safety Administration (NHTSA) estimates that more than one-quarter of all drivers in fatal crashes in 2002 had a positive Blood Alcohol Concentration (BAC), and 21 percent had a BAC level at or above the typical per se limit of 0.08. Accurate State and national data are critical to measure the size of this impaired driving problem, describe its characteristics, evaluate trends, explore potential countermeasures, and evaluate the effects of laws and programs.

The most accurate data come from a blood or breath measurement of a driver’s BAC. In 2002, NHTSA’s Fatality Analysis Reporting System (FARS) annual report data file recorded BACs for 65 percent of fatally injured drivers, 25 percent of surviving drivers, and 43 percent of all drivers in fatal crashes.

STUDY GOALS AND ACTIVITIES

This study’s goals were to identify the best practices for, and the barriers and problems that hinder, obtaining BAC data for drivers involved in fatal traffic crashes, and to provide recommendations for States that wish to improve their BAC testing and reporting. The study reviewed each State’s laws affecting BAC testing, recent testing rates, and other information on each State’s practices and results. With the advice of a steering committee representing the organizations and disciplines involved in BAC testing and reporting, ten diverse States were chosen for detailed examination. Known BAC rates in 2001 ranged from 89 percent to 45 percent for fatally injured drivers, and from 83 percent to 1 percent for surviving drivers, across the ten States. Through personal and telephone interviews, project staff examined in detail each State’s BAC laws, policies, practices, procedures, and testing results.

STATE LAWS REGARDING BAC TESTING IN FATAL CRASHES

Fatally Injured Drivers

Mandatory testing: 25 States require a test.
Discretionary testing: 11 States authorize, but do not require a test.
No law: 14 States and the District of Columbia.

State law type	2002 State BAC Testing Rates
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 %

Testing rates varied widely for States with each law type. A mandatory law by itself does not guarantee a high testing rate, and high rates can be obtained under each type of law.

State medical examiners in many States or jurisdictions have adopted the practice of conducting a BAC test on every traffic fatality so that the medical examiner’s report can assess whether alcohol may have affected the death. Each of the ten study States had a mandatory testing law or medical examiner practice of testing all traffic fatalities. The two States with less than 80 percent known BACs had not implemented the law or practice in all areas of the State.

Surviving Drivers

Mandatory testing: 5 States require or permit a test for all surviving drivers.
Discretionary testing: 5 States reduce the standard required for a test, usually allowing a test when the driver is believed to have caused the crash.
Required to submit to a test request: 30 States and the District of Columbia make test submission mandatory when the implied consent provisions have been met.
Statistical purposes: 1 State authorizes testing for statistical purposes only.
No law: 9 States do not distinguish surviving drivers in fatal crashes from other drivers.

The five mandatory test law States had by far the highest testing rates, followed by States with no special law. 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.

State law type	2002 State BAC Testing Rates
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 %

Some law enforcement jurisdictions request voluntary tests from all surviving drivers not suspected of Driving While Impaired (DWI), as well as requesting tests of the remaining drivers under standard DWI procedures. Most drivers comply with this request. Many traffic fatalities in some States are investigated by dedicated teams or by Highway Patrol/State Police officers, who have the training and incentive to achieve high testing rates.

State Insurance Laws and Regulations
Many emergency treatment facilities draw blood from trauma patients for clinical purposes. This clinical blood sample may be the only source of a useful BAC test result. Until recently, the Uniform Accident and Sickness Policy of the National Association of Insurance Commissioners (NAIC) had a provision that allowed insurers to deny payment for medical treatment of intoxicated persons. More than 30 States adopted this provision, which substantially impedes BAC testing and reporting in some States. NAIC repealed this provision in 2001, but many States have not yet eliminated it from their laws or insurance codes.

BAC TESTING AND REPORTING PROCESSES

Three fundamentally different circumstances occur in obtaining a BAC from a driver in a fatal crash. When the driver dies at the crash scene, the coroner or medical examiner is responsible for investigating the death and obtaining any BAC information. Some medical examiners and coroners may not choose to draw a blood sample and some may not have appropriate equipment or training. Laboratories may have no standard procedure for reporting BAC results and reports may be delayed for many months.

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When the driver is transported to an Emergency Department (ED) for treatment, the investigating law enforcement officer is responsible for requesting a blood sample in a timely manner from the facility or a BAC value from the facility’s analysis of a blood sample. Law enforcement must first establish that the driver meets the State’s requirements for a test. Medical facilities may require a warrant before drawing a blood sample and may be reluctant to draw a sample if insurance companies may not pay treatment costs for intoxicated drivers.

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When the driver remains at the crash scene, the investigating law enforcement officer is responsible for determining if a BAC test is allowed under the State’s laws and then administering a breath test or transporting the driver to a person authorized to draw a blood sample.

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CONCLUSIONS AND BEST PRACTICES

No one model BAC testing and reporting system applies to all States. The following best practices are presented both as general principles that each State can apply within its own structure and as examples from the study States that other States may wish to adopt or adapt.

Who is tested: fatally injured drivers
Conclusions	Best practices
Mandatory testing laws for driver fatalities produce high testing rates only if the laws are understood and followed consistently. Mandatory testing laws by themselves do not assure high testing rates. A medical examiner or coroner practice of testing all driver fatalities will produce high testing rates if understood and followed consistently.	Establish and follow medical examiner and coroner practice of testing all driver fatalities. In States with mandatory testing laws, inform all coroners and medical examiners of the law’s requirements and assure that these requirements are followed. Provide medical examiners and coroners with appropriate training and equipment.

Who is tested: surviving drivers
Conclusions	Best practices
Mandatory testing laws for surviving drivers produce high testing rates, but only five States have these laws. Voluntary testing programs can produce testing rates above 50 percent. Without either a mandatory testing law or a voluntary testing program, test rates are unlikely to exceed 35 percent and may be considerably lower. Rural areas may have lower testing rates for both fatally injured and surviving drivers due to lack of knowledge by coroners or medical examiners, lack of equipment or training, or long travel times to medical facilities or breath testing equipment.	In States with no mandatory testing law, request voluntary tests for all surviving drivers in fatal crashes. Establish standard procedures to request and administer tests. Provide appropriate training and equipment for all law enforcement personnel or others who administer tests.

Who is tested: drivers taken to medical facilities
Conclusions	Best practices
Law enforcement officers, medical examiners, and coroners seeking blood samples or test results need good communications and relationships with medical facilities. State insurance laws or regulations should not deny payment for treating intoxicated persons.	Maintain good communications and relations with medical facilities. Inform facilities about applicable laws. Eliminate State laws or regulations that allow insurers to deny payment for treating intoxicated persons. Consider using contract phlebotomists or other authorized persons where there are difficulties in obtaining cooperation of medical personnel to draw blood.

How test results are transmitted to FARS
Conclusions	Best practices
In 2002, eight per cent of fatally injured drivers and five percent of surviving drivers were known to have a BAC test but the results were not reported to FARS. The number of missing test results may be higher if some tested persons were reported to FARS as “unknown if tested” or “not tested.” Missing test results suggest problems in managing the data flow from BAC test to FARS.	Use a well-defined reporting process, with clear responsibilities, that does not rely on personal relationships. Establish both standard and backup methods for notifying FARS promptly of each fatal crash. Track each involved driver until BAC data are received in the FARS office; follow up if data are late. If appropriate, establish methods to obtain BAC data directly from testing laboratories, coroner or medical examiner files, or State breath test files. Use electronic data transfer methods to reduce data delays and errors.

How the process is managed
Conclusions	Best practices
Management is a continuing challenge, in part because organizations with critical roles are housed in several State agencies. Funding and resources can be barriers. Several States have used BAC testing and reporting forums to improve their rates substantially.	Maintain good communications and relations among all organizations and staff involved in BAC testing and reporting. Maintain good communications and relations with counterparts in adjoining States to obtain crash and medical facility reports from these States Maintain adequate staff levels in all involved organizations, especially the State FARS office. Conduct State or regional BAC testing forums as appropriate.

IMPLEMENTATION

States have primary responsibility for BAC testing and reporting and for implementing the best practices discussed in this report. Each State should consider its own BAC testing and reporting rates and processes. If improvements are sought, each State should implement the strategies and best practices that are most appropriate to its situation. Other organizations can and should assist States through activities including the following.

National Highway Traffic Safety Administration (NHTSA)

Establish national guidelines for testing and reporting rates, for example 80 percent known BACs for fatally injured drivers (achieved in 2002 by 21 States) and 60 percent for surviving drivers (eight States), as were used in the Section 410 grant criteria.
Accept PBT and other non-evidentiary BAC evidence in FARS for drivers where evidentiary BAC tests are not available or appropriate.
Assist States to improve BAC testing and reporting:
- Organize and fund regional BAC or FARS meetings;
- Help States organize and fund State BAC forums;
- Support, recognize, and reward State FARS management and staff.

Governors Highway Safety Association (GHSA)

Help establish BAC testing and reporting as a priority for States, through a resolution (adopted at the 2003 GHSA Annual Meeting).

National Association of Medical Examiners (NAME)

Establish a best practice for medical examiners and coroners of BAC testing every driver fatality; encourage medical examiners and coroners to follow this best practice.
Work with NHTSA to develop and implement training for coroners, medical examiners, and others who may participate in BAC testing of fatally injured drivers.
International Association of Chiefs of Police (IACP), National Sheriffs’Association (NSA)
Support voluntary BAC testing for all surviving drivers in fatal crashes through national resolutions, State and local policies, and training as needed.

National District Attorneys Association (NDAA)

Support voluntary BAC testing for all surviving drivers in fatal crashes through national resolutions and State and local policies.

All Organizations

Support States in eliminating provisions from State laws or insurance codes that allow insurers to deny payment for treating intoxicated persons.
Support the training and equipment that law enforcement officers, medical examiners, and coroners need for BAC testing and reporting.

PREPARED FOR THE DEPARTMENT OF TRANSPORTATION, NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, UNDER CONTRACT NO: DTNH22-98-D-45079. THE OPINIONS, FINDINGS, AND CONCLUSIONS EXPRESSED IN THIS PUBLICATION ARE THOSE OF THE AUTHORS AND NOT NECESSARILY THOSE OF THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION.

HS Form 321
July 1974

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