Driving While Intoxicated (DWI)

Policies that target driving while intoxicated (DWI) or that permit so-called suspicionless drug testing of specified groups (employees, students) demonstrate the conflict between promoting public health and safety and constricting individual liberty and privacy (Skinner v. Railway Labor Executives’ Association 1989). Anti-DWI laws are programs designed to reduce the damage caused by the mix of alcohol and driving, which kills and injures thousands of Americans each year. Mass drug testing policies, whether by employers or in schools, are viewed by advocates as means of ensuring well-being and integrity in workplace and academic settings, with the added bonus of discouraging drug use generally.

Opponents of these mass testing policies are concerned, for example, about the effects on certain constitutional rights. One scholar has noted that changes in judicial conceptions of the proper scope of government power have occurred in the wake of attempts to regulate traffic (Laurence 1988, 136–166). This is nowhere more evident than in the case of anti-DWI policies and is echoed in the case of drug testing policies. In a series of court decisions addressing these policies, constitutional safeguards, particularly those related to due process and protection against unwarranted search and seizure, have been narrowed. Widespread public outcry about these practices has largely been muted; citizens appear to be willing to trade freedom for safety, or perceived safety, because it is unclear that these policies are the most effective means of mitigating the damages of drug and alcohol use. The full implications of these losses for situations beyond the narrow issues of DWI and drug use have yet to be seen.


I. Background

II. Key Events

III. Key Legal Decisions

IV. Drugged Driving


DWI policies were enacted against the backdrop of certain facts about use of alcohol and drugs in the United States. It is undeniable that alcohol increases the chances of driving mishaps. In fact, a 0.04 percent blood alcohol concentration (BAC), an amount much less than the current limit of 0.08 percent, can lead to driving errors (Ross 1992, 19). Data from 2008 show that close to one third (32 percent) of U.S. traffic fatalities, or some 11,773 deaths, are linked to alcohol use (Centers for Disease Control and Prevention 2009). Nevertheless, substantial numbers of individuals report driving after having used alcohol: there are approximately 159 million such incidents each year (Voas et al. 1998, 267–275). Further, only a fraction of those who report DWI are ever arrested for it; recent figures demonstrate an arrest prevalence of approximately 1 percent (Voas et al). Drunk driving is more common among males and those between 21 and 34 years of age. It is more likely to occur at night and on weekends, generally the times when leisure activities take place (Voas et al). Whites, persons of mixed race, and Native Americans most often report driving under the influence, whereas blacks, Hispanics, and mixed-race individuals most often report being arrested (Caetano and McGrath 2005).

Drug-testing polices are part of the arm of drug policy that focuses on prevention, specifically by lowering the prevalence of use in order to decrease its consequences, including addiction, and other negative aspects of use, like accidents, illness, lowered productivity, and so forth. Employer-based drug testing is a common procedure. Most recent data show that 46 percent of workers report that their employers test for drugs (Carpenter 2006). This figure is down from 49 percent in 1997 (U.S. Department of Health and Human Services 2007). Drug tests, generally using urine as the biological matrix, are done for a number of reasons, most often for pre-employment screening, during postaccident investigations or in cases of suspected on-the-job use. Random drug testing is done largely in settings where safety-related testing occurs.

Drug testing expanded from the workplace into schools following concerns over drug use by youth. According to one study, 18 percent of schools engaged in testing, mostly of students in high school (Yamaguchi, Johnston, and O’Malley 2003). This number, valid in 2001, has likely changed in the wake of the 2002 Board of Education v. Earls decision, which expanded categories of students who could be tested. Mass drug testing also takes place in the criminal justice system, from pretrial to probation or parole supervision. Such testing has not generated the controversy that other forms have created. This is likely due to the reduction in rights of those subject to criminal penalties.

Key Events

A major review of alcohol and driving, published in 1968, was the first government document to officially link drunk driving and accidents (Ross 1992, 175). Even so, DWI was seen as basically a traffic problem or a by-product problem of alcohol use (Gusfield 1988, 109–135). This changed in 1980 with the rise of an organization called Mothers against Drunk Driving (MADD), started by Candy Lightner, who lost her 13-yearold to a drunk driver. MADD and similar organizations pushed to make penalties and criminal justice enforcement against drunk drivers more stringent. Drunk driving came to be viewed as a moral problem, with campaigns portraying drunk drivers as villains of the road, thus increasing the public ire directed toward those offenders (Gusfield 1988, 109–135).

The movement was very successful in obtaining changes in DWI and alcohol policies, among them (1) lowering the limit of acceptable blood alcohol for drivers; (2) sobriety checkpoints, which are defined areas where police will check vehicles to see if passengers are intoxicated or have some other alcohol-related violation; (3) administrative suspensions; (4) getting the drinking age raised from 18 to 21; and (5) increased penalties for offenders, mostly for recidivists but also for first-timers (Gusfield 1988, 109–135).

These efforts were facilitated by the ability of the federal government to use its power over state funding of transportation projects to push states into drafting various laws designed to reduce driving under the influence. States were threatened with loss of highway construction funds unless they altered their laws according to federal dictates. Recent efforts in this regard include pushing for a reduction of the acceptable blood alcohol limit to 0.08 percent from 0.10 percent and mandating certain penalties for repeat offenders, including compelling the use of ignition interlocks. These last are devices designed to prevent a car from being turned on unless the driver registers a blood alcohol level below a given amount.

These changes met with some opposition, some of which centered on use of the Breathalyzer, and to the training of officers in discerning driver impairment. This likely reflects the overwhelming influence of “per se” laws (using a zero-tolerance measure), which penalize having a breath alcohol level above a given amount. A casual Internet survey reveals a cottage industry of defense attorneys advertising methods of fighting the test and DWI charges in general. Other challenges came from concern over the penalties, in particular administrative license suspensions and sobriety checkpoints. These wound up in the courts.

How have these policies worked in reducing DWI? The percentage of drunk-driving deaths has gone down in recent years. Some research has linked this to various drunk-driving penalties, most specifically those directed at youth, such as raising the drinking age (Laurence 1988, 136–166). However, it is likely that other factors—for instance, a decline in the use of alcohol—are important as well.

Drug use exploded as a societal concern during the 1980s. This altered focus was linked to a variety of factors, including general concern over crime combined with the heightened use of crime as an issue in elections; the rising cocaine and, later, crack epidemic; and highly publicized incidents (such as the Len Bias cocaine overdose). These factors all contributed to an environment of increased public worry about drug use. Meanwhile, advances in the science and the technology of drug-testing devices made the process quicker and more efficient and thus more feasible to carry out on a mass scale. Arguably, workplace drug testing had its inaugural in 1986, when President Ronald Reagan ordered that government agencies drug-test employees who worked in jobs featuring a high risk of injury. This proclamation ushered in the age of employee drug testing, with drug testing in other arenas to follow (Crowley 1990, 123–139).

As with DWI policies, the use of such tests was questioned, largely by civil libertarians and some drug policy experts. They portrayed the tests as inaccurate and decried their intrusion into personal privacy, noting that the bodily fluids used could provide additional information about the person, from disease status to pregnancy. They also disputed the stated reasons for testing—ensuring safety—arguing that policies that addressed impairment of all kinds (from illicit to licit drugs to fatigue) would be more fruitful (Crowley 1990, 123–139).

How has workplace testing affected drug use? Data from one drug-testing laboratory show a decline in the number of workers testing positive for drugs, from 13.8 percent in 1988 to 4.5 percent in 2004 (Carpenter 2006, 795–810). A recent study argues that workplace tests do affect drug use generally, although less than is often presumed (Yamaguchi 2003).

Key Legal Decisions

Court challenges to DWI and drug-testing policies have resulted in a gradual redrawing of the line between individual freedom and government intrusion. Take, for instance, administrative suspensions, seen by some as a violation of due process, because one’s license is taken away at the point of the DUI arrest. The Supreme Court in Mackey v. Montrym upheld these with the caveat that the person obtains a hearing shortly after the suspension (1979).

This opened the door to a more severe application of these laws; today, almost all states have laws using administrative suspension to punish the mere refusal to take a breath test (Insurance Institute for Highway Safety 2007). The Supreme Court in Michigan Department of State Police v. Sitz upheld sobriety checkpoints, which are effectively suspicionless searches (1990). They reasoned that rather than being a police action, checkpoints feature the state acting in its capacity to regulate public safety and thus are more akin to housing or restaurant inspections than crime fighting.

Regarding drug testing, the Supreme Court in Skinner v. Railway Labor Executives’ Association ruled in 1989 that monitoring employees involved in “safety sensitive” positions was a state interest overriding the right of individuals not to have their persons (bodily fluids) seized (via drug test) without probable cause. The Court broadened its interpretation of the government’s interest in the case of National Treasury Employees Union v. Von Raab to include concerns about customs workers facing promotion into positions that placed them at great risk, not for safety violations but for personal corruption owing to increased contact with drugs in large quantities (1989). These two cases were cited as precedent in upholding drug testing of students, first in Vernonia School District v. Acton (1995), in which random drug testing of student athletes was approved, and then in Board of Education v. Earls (2002), which gave the nod to a program in Oklahoma that randomly tested all students involved in extracurricular activities.

What is notable about these court decisions is the basis on which they were decided. Specifically, these policies were upheld as promoters of health and safety and on the basis of administrative rather than criminal justice considerations (Crowley 1990, 123– 139). This is important, as it demonstrates a potential limit to the Court’s reach regarding such policies. Evidence for this can be seen by the types of testing plans overturned by the Court, among them a hospital-based program that tested pregnant women, with positive results immediately provided to law enforcement for purposes of prosecution (Ferguson v. City of Charleston 2000), and a Georgia law that used drug testing as a condition for candidacy for local office (Chandler v. Miller 1997).

Drugged Driving

One topic that could loom large in future discussions of both DWI and drug-testing policy concerns the issue of drugged driving, or driving under the influence of drugs (DUID). Although it has a low prevalence rate (approximately 5 percent of those from a 2003 Substance Abuse and Mental Health Services Administration survey admitted to drugged driving, versus roughly 16 percent who admitted to DWI) (Substance Abuse and Mental Health Services Administration 2003), it has emerged as the next step in the evolution of concern over the negative effects of substance use. Recent attention speaks to a push to make drugged driving the next arena in the fight over automobile safety (Leinwand 2004; Armentano 2005).

Compared with the case for alcohol use, there is little science linking specific levels of drug use to impairment or to car accidents, making solutions to the drugged driving problem more difficult to enact. Most states have laws prohibiting DUID. Most define the offense based on actual impairment; however, several states define the offense based on per se grounds. There is potential for fresh court challenges based on the enforcement of those laws, particularly if authorities criminalize the presence of substances (marijuana metabolites, for instance) with no psychoactive impact whatsoever, as has been done in some cases.

Drugged driving is also important because it provides a friendly setting for the use of alternative—that is, non–urine based—drug-testing technologies, in particular those using saliva. Saliva tests have the potential to capture current intoxication and thus to indicate current impairment (Cone 1997). Some European countries have conducted evaluation studies of saliva tests for roadside testing of drugged drivers, with mixed success (Roadside Testing and Assessment). Because they are less intrusive than urine testing, such tests are very attractive for most drug-testing goals. Additionally, the technology can easily be converted for use in testing surfaces for the presence of drugs. Such devices are being evaluated for use in schools (McFarland 2006).

The increasing prominence of alternative testing comes in the context of a reduction in employer drug testing, possibly owing to concerns over cost. Some view the push for roadside testing as a cynical attempt to improve the flagging fortunes of the drug testing industry. Others have seen it as a possible boon to public safety. One thing does remain evident: conflicts over testing policies and the challenges they pose to individual freedom are far from over.

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  6. Centers for Disease Control and Prevention, “Impaired Driving Fact Sheet.” 2009. http://www.cdc.gov/MotorVehicleSafety/Impaired_Driving/impaired-drv_factsheet.html
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  9. Crowley, Donald W., “Drug Testing in the Rehnquist Era.” In Images of Issues: Typifying of Contemporary Social Problems, ed. Joel Best. New York: Walter de Gruyter, 1990.
  10. Ferguson v. City of Charleston, 532 U.S. 67 (2000).
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  16. Leinwand, Donna, “Growing Danger: Drugged Driving.” USA Today (October 21, 2004). http://usatoday30.usatoday.com/news/nation/2004-10-21-cover-drugged-driving_x.htm
  17. Mackey v. Montrym, 443 U.S. 1 (1979).
  18. McFarland, Art, “A New Weapon to Detect Drugs in Schools.” 7Online.com, WABC-TV News. November 13, 2006. http://abclocal.go.com/wabc/story?section=news/education/schools&id=4757591
  19. Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990).
  20. National Highway Traffic Safety Administration (NHTSA), Countermeasures That Work: A Highway Countermeasure Guide for State Highway Safety Offices. Washington, DC: NHTSA, 2007.
  21. National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989).
  22. Roadside Testing and Assessment, http://www.rosita.org/
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  27. U.S. Department of Health and Human Services, Office of Applied Studies, “Worker Drug Use and Workplace Policies and Programs: Results from the 1994 and 1997 National Household Survey on Drug Abuse” (2007). http://www.samhsa.gov/data/nhsda/a-11/toc.htm
  28. Vernonia School District v. Acton, 515 U.S. 646 (1995).
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  30. Woody, Robert Henley, Search and Seizure: The Fourth Amendment for Law Enforcement Officers. Springfield, IL: Charles C. Thomas, 2006.
  31. Yamaguchi, Ryoko, Lloyd D. Johnston, and Patrick M. O’Malley, “Relationship between Student Illicit Drug Use and School Drug-Testing Policies.” Journal of School Health 73 (2003): 159–164.
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