ANALYSIS AN OF THE POTENTIAL LEGAL CONSTRAINTS ON THE USE OF MECHANICAL DEVICES TO MONITOR DRIVING RESTRICTIOKS Paul A. Ruschmann Hal 0. Carroll blurray Greyson Kent B. Joscelyn
The University of Michigan Highway Safety Research Institute Ann Arbor, Michigan 48109
September 1979 Prepared for U. S. Department of Transportation National Highway Traffic Safety Administration Washington, D.C. 20590 Contract No. DOT-HS-7-01536
Document is available to the U.S. public through the National Technical Information Service Springfield, Virginia 22161
AN ANALYSIS OF THE POTENTIAL LEGAL CONSTRAINTS ON THE USE OF MECHANICAL DEVICES T MONITOR DRIVING RESTRICTIONS O
Paul A . Hal 0. Murray Kent B ,
Ruschmann Carroll Greyson Joscelyn
The U n i v e r s i t y of Michigan Highway S a f e t y Research I n s t i t u t e Ann Arbor, Michigan 48109 September 1979 Prepared f o r U.S. Department of Transportation National Highway T r a f f i c S a f e t y Administration Washington, D.C. 20590
Contract No. DOT-HS-7-01536
The c o n t e n t s of t h i s r e p o r t r e f l e c t t h e views of t h e a u t h o r s , who a r e r e s p o n s i b l e f o r t h e f a c t s and accuracy of t h e d a t a presented h e r e i n . The contents do not n e c e s s a r i l y r e f l e c t t h e o f f i c i a l views o r p o l i c y of t h e Department of T r a n s p o r t a t i o n . This r e p o r t does not c o n s t i t u t e a standard, s p e c i f i c a t i o n , o r r e g u l a t i o n . This document i s disseminated under t h e sponsorship of t h e Department of Transportation i n t h e i n t e r e s t of information exchange. The United S t a t e s Government as-wnes no l i a b i l i t y f o r i t s c o n t e n t s o r use t h e r e o f . The United S t a t e s Government does not endorse products o r manufacturers. Trade o r manufacturer's names appear h e r e i n s o l e l y because they a r e considered e s s e n t i a l t o t h e o b j e c t of t h i s r e p o r t .
Document i s a v a i l a b l e t o t h e U.S. p u b l i c through t h e National Technical Information S e r v i c e S p r i n g f i e l d , V i r g i n i a 22161
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This volume i s one o f a s e r i e s of documents d e a l i n g w i t h l e g a l c o n s t r a i n t s r e l e v a n t t o countermeasure development and implementation produced under C o n t r a c t No. DOT-HS-7-01536.
An a n a l y s i s was made o f t h e p o t e n t i a l l e g a l c o n s t r a i n t s on t h e u s e o f mechanical d e v i c e s t o s u p e r v i s e d r i n k i n g and d r i v i n g r e s t r i c t i o n s . These conceptual d e v i c e s would be i n s t a l l e d on v e h i c l e s o p e r a t e d b y r e s t r i c t e d d r i v e r s . Two d e v i c e s c o n t a i n psychomotor t e s t s and a r e designed t o d i s c o u r a g e impaired d r i v i n g ; t h e t h i r d i s a n o p e r a t i n g time r e c o r d e r designed t o preven.t d r i v i n g d u r i n g p r o h i b i t e d t i m e s o f t h e day. A n a l y s i s o f c u r r e n t ' law r e v e a l e d t h a t t h e proposed d e v i c e s would be a c o n s t i t u t i o n a l means of e n f o r c i n g d r i n k i n g and d r i v i n g r e s t r i c t i o n s . Methods f o r use of t h e devices t h a t w i l l resolve o t h e r p o s s i b l e l e g a l c o n s t r a i n t s a r e presented.
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ACKNOWLEDGMENT This volume is one of a series produced over a two-year period and therefore represents the combined work product of a large number of individuals. The legal constraints study was designed by Kent B. Joscelyn, J.D., who served a s p r o j e c t d i r e c t o r . P a u l A . R u s c h m a n n , J.D., coordinated project activity, developed the basic draft of this volume, and supervised the work of the many student assistants who participated in this study. Murray Greyson, J.D., and Andrew M. Walkover, J.D., coordinated earlier phases of project activity and compiled much of the legal background material necessary t o produce this document. Hal 0. Carroll, J.D., participated in the production of earlier drafts and provided valuable legal and technical review. James E. Haney edited this report. Special thanks are due to Professors Jerold H. Israel and Richard 0 . Lempert of The University of Michigan Law School, who served as critical reviewers of the many work products. Policy Analysis Division staff who p a r t i c i p a t e d in this study included David G. Baldwin, J.D.; John W. McNair, J.D.; Dennis M. Powers, J.D.; and William C. Wheeler, Jr., J.D. Legal research and updating and citechecking of legal authorities were ably performed by the following law student assistants: Paul E. Bateman, John M. Covne, John E. Grenke, Donald R. Garlit, Amy Greyson, Marcia McKenzie, Patricia Ramsey, Lawrence D. Rosenstock, James D. Tomols, Linda T h r o n e , T h e o d o r e J . Vogel, F r a n c i s J , IYirtz, and Kent L. Weichman. In addition, Judith L. Cousins, Susan M. Kornfield, Nary Ann Snow, and Susan J. Wise served as research assistants. Special recognition must be expressed to those in the Administrative Zone of the Policy Analysis Division, without whose efforts this volume would not have been produced: Anne L. VanDerworp, Word Processing Unit supervisor, and Deborah M. Dunne who assisted her; Jacqueline B. Royal, Administrative Zone supervisor; Olga S. Burn, Policy Analysis Hunter; Kathryn A. Szegedy; and I Division executive assistant; Judy % .
Douglas J. VanDenBerg.
Thanks a r e a l s o e x p r e s s e d t o t h e many
individuals, too numerous to mention individually, who typed previous drafts of these volumes. Appreciation is also expressed to the National Highway Traffic Safety Administration's Contract Technical Managers, Dr. Richard P. Compton and Mr. Theodore E. Anderson, for their assistance throughout this study. Kent B, Joscelyn, J.D. Principal Investigator Paul A, Ruschmann, J.D. Principal Investigator
1.0
INTRODUCTION
This is one of a set of volumes concerned with the legal feasibility of proposed highway crash countermeasures. It is specifically concerned with mechanical devices that would be placed on vehicles driven by sanctioned traffic offenders. It is believed that these devices would allow courts and driver-licensing authorities to supervise more effectively driversf compliance with driving restrictions and would d e t e r d r i v e r s f r o m committing future offenses, especially driving while intoxicated (DWI). Three specific countermeasure devices a r e discussed in the volume: the Drunk Driver Warning System (DDWS); the Continuous Monitoring Device (CMD); and the Operating Time Recorder (OTR). Both the DDWS and CMD a r e designed to determine whether a driver is too impaired by alcohol, drugs, and fatigue to operate a vehicle safelv. The principal emphasis of DDWS and CMD is, however, on alcohol-impaired drivers. The OTR is designed t o r e c o r d t h e d a t e s and t i m e s in which an a u t o m o b i l e is operated; this information, in turn, would be used by appropriate authorities to determine whether a driver had complied with restrictions imposed on driving. The research and analysis leading to preparation of this volume were conducted by staff of the Policv Analysis Division of The University of Michigan Highway Safety Research Institute (HSRI) for the National Highway Traffic Safety Administration (NHTSA) under contract number DOT-HS-7-01536. 1.1 Purpose of Volume The legal issues that might constrain the implementation of highway crash c o u n t e r m e a s u r e s - - i n c l u d i n g m e c h a n i c a l d e v i c e s t o monitor compliance with driving restrictions--are rooted in basic aspects of the American legal s y s t e m and o f t e n involve complex issues of U.S. constitutional law and U.S. Supreme Court interpretations of that law.
Thus any discussion of legal issues and the potential constraints thev impose must deal with prevailing constitutional principles. However, to treat these issues in a rigorous legal manner would be beyond t h e scope of this volume. It is not designed to provide legal advice. Rather, it is designed to be used by public safety officials and highway safety planners a s a g u i d e t h a t will p e r m i t t h e m t o i d e n t i f y problem a r e a s in countermeasure program implementation. Once identified, these problem areas can be discussed with legal counsel. Within this context, the purpose of this volume is t o provide a brief but relatively comprehensive review of potential legal constraints that might be encountered w i t h r e s p e c t t o t h e DDWS, CMD, and OTR countermeasures. It is designed to: identify important legal issues; show how they might arise; estimate their significance as constraints on the DDWS, CMD, and OTR countermeasures; suggest methods that might be used to resolve those constraints; and assess t h e overall legal feasibility of those countermeasures. Description of the Countermeasures As s t a t e d earlier, three s ~ e c i f i ccountermeasures--the DDWS, the CMD, and the OTR-are discussed in this volume. Their overall purpose is to monitor illegal driving behavior that cannot readily be observed by police officers, and to deter already sanctioned drivers from committing further traffic offenses. I t is envisioned t h a t these devices will be installed on vehicles as the result of the sanctioning process: either bv a court, as a condition of probation, pretrial diversion, or earned charge reduction (ECR) (1); or by a driver-licensing authority as an alternative t o license r e v o c a t i o n or suspension. Thus the three countermeasure devices encounter similar legal issues and for that reason thev are discussed together in this volume. 1.2.1 Drunk Driver Warning System (DDWS). It is probability of ao~rehensionfor driving while intoxicated order of from one per 2 0 0 (Beitel, Sharp, and Glanz 2,000 DWI trips (Borkenstein 1975). The great majority believed that the (DWI) is on the 1975) t o one per of DWI trips go 1.2
undetected in part because there a r e too few police officers to detect and apprehend offenders, and in part because many impaired drivers fail to show t h e gross signs of impairment t h a t would c a l l t h e m t o a n officer's attention. To remedy this, it has been proposed that vehicles be equipped with devices that would prevent or discourage their use by impaired drivers. One such device is the Drunk Driver Warning System (DDWS). The DDWS is a device t h a t measures a driver's impairment by alcohol, drugs, or fatigue. It does so by measuring the quality of the driver's response to a psychomotor t e s t designed t o evaluate his physical c o o r d i n a t i o n and reaction time. One such testing device is the so-called Critical Tracking Tester (cTT), developed by the General Motors Corporation (Tennant 1974; Tennant and Thompson 1973). The CTT requires a driver to take a brief t e s t t h a t involves using t h e s t e e r i n g wheel t o s t a b i l i z e a ~ o i n t e r undergoing a random oscillation pattern. A variety of other testing devices have been developed or hypothesized (Iannini 1976; Brown, Jindal, and J o 1973; Davis e t al. 1971); however, all devices share one common feature-they measure aspects of physical coordination believed to be essential to safe driving ability. Most testing devices were initially designed as part of an interlock system, which would prevent a driver who failed a test from starting the vehicle. The DDWS, however, is not an interlock system; should a driver fail the test, he is warned that he should not start the vehicle, but is not disabled from so doing. If a driver ignores the warning and attempts to start the vehicle anyway, the vehicle's emergency lights will flash and, a t speeds above ten miles per hour, the horn will also sound continuously. The lights and horn are intended not only t o warn the driver of his own impaired condition, but also to warn other drivers and police officers that an impaired driver may be on the road. The DDWS is designed so that a driver who fails a coordination test can retake the test but only after a predetermined time, such as 15 to 30 minutes. 1.2.2 Continuous Monitoring Device (CMD). It is believed that driving performance tends to deteriorate over time as the result of fatigue, or
combination of fatigue and impairment by alcohol or drugs.
For this
r e a s o n a d r i v e r who initially passes a psgchomotor t e s t l a t e r might become too impaired to o ~ e r a t ea vehicle safely. To remedy this, i t has b e e n proposed t h a t a device t h a t continually evaluates driving performance-in effect administering a continuing series of psychomotor t e s t s - - b e i n s t a l l e d on vehicles. One such device is t h e Continuous Monitoring Device (CMD). The CMD, like the DDWS, is designed t o measure a driver's impairment and t o warn both the driver of his own impairment and other drivers of an impaired individual's presence. It o p e r a t e s on a principle similar to the DDWS, that is, measuring the driver's coordination and reaction time. The CMD is based on a device that counts the number of steering corrections made by a driver; if there are too many or too few--either of which indicates driver impairment--a warning signal is sounded to the driver (Moore e t al. 1976, pp. 107-10). horn, in the same manner as the DDWS. 1.2.3 drive. Operating Time Recorder (OTR). Several classes of drivers are These include minors, aged drivers, habitual traffic offenders, and Typical tim e-of-day T h e CMD a l s o t r i g g e r s t h e vehicle's external warning system, that is, flashing lights and a sounding
subject to restrictions governing the hours i n which they may legally persons convicted of driving while intoxicated (DWI). daytime hours only (2). It is believed that current methods of enforcing license restrictions, including time-of-day restrictions, are ineffective. Studies (Kaestner and Speight 1974, pp. 56-57; Coppin and VanOldenbeek 1965, pp. 13-14) have shown that a large percentage of suspended and revoked drivers continue
t o drive i n spite of their suspensions or revocations; thus it is reasonable
restrictions limit hours of operation t o driving to and from work, or to
to assume that restricted drivers also operate vehicles during prohibited times of the day. Complicating the problem of enforcement is that, in most states, a police officer cannot determine whether a given driver is the holder of a restricted license unless he is able to phvsically observe that driver's license. This is likelv to occur only a f t e r t h e driver is
stopped for a suspected traffic-law violation or in the course of a routine license and registrat ion check. Such encounters are comparatively rare: the probability of apprehension for a moving traffic violation is estimated to be on the order of one per 10,000 unsafe driving acts (Joscelyn and Jones 1972); and routine checks are relatively infrequent. Consequently, many violators of time-of-day license restrictions a r e able to escape detection throughout the period of their restriction. To remedy this, i t has been proposed that vehicles used by persons placed under driving restrictions be equipped with devices capable of detecting their unauthorized use. One such device is the Operating Time Recorder (OTR). The OTR is designed to overcome the difficulty of enforcing time-of-day license restrictions by providing a systematic and effective method of ensuring compliance with them. The OTR--which is currently only a concept-consists of a timing and recording device placed on a vehicle operated by a driver whose driving privileges have been restricted. When an OTR-equipped vehicle is started, the device records the date and time of day of operation. It does not, however, identify the operator of the vehicle, nor does it record the total number of hours in which the vehicle was operated. OTR r e c o r d s would be e x a m i n e d by persons supervising driving restrictions, such as probation officers and driver-licensing authority officials, t o determine whether those restrictions in fact were complied with. Records showing driving during prohibited hours could provide the basis f o r sanctions such as revocation of probation or revocation or suspension of driving privileges. 1.3 Countermeasure Implementation Scenarios The first s e t of legal issues involving the DDWS, C M D , and OTR c o u n t e r m e a s u r e s involves the circumstances under which they were installed. As pointed out earlier, the countermeasures discussed i n this volume will be implemented primarily through the sanctioning process. Thus, the voluntary installation of these devices for purposes such a s fleet monitoring is not discussed in detail in this volume. A second set of issues concerns the relationship between owners and drivers. While
countermeasure devices a r e directed a t specific d r i v e r s , it is intended that v e h i c l e s be equipped with these devices; however, vehicles often are shared by sanctioned and nonsanctioned drivers alike. 1.3.1 Installation of Countermeasure Devices. There are four steps in
the sanctioning processes in which installation of these countermeasure devices may be required. Three of these involve their imposition by the Sanctioning processes criminal justice system (courts and prosecutors); the fourth involves imposition by t h e dr iver-licensing authoritv. discussed in this volume include: p r o b a t i o n , which is a sanction imposed upon convicted traffic offenders; p r e t r i a l d i v e r s i o n , which is a program offered to drivers charged with-but not convicted of-a traffic offense as an alternative to standing trial for that offense; e a r n e d c h a r g e r e d u c t i o n (ECR), which i s a p r o g r a m o f f e r e d t o d r i v e r s who a d m i t guilt of serious t r a f f i c offenses (3), as an alternative to the severe sanctions for conviction of the more serious offense; and driving restrictions, which a r e imoosed upon drivers by t h e driver-licensing authority as an alternative to loss (revocation or sus~ension)of driving privileges.
1.3.2
Owner-Driver Relationships. Numerous owner-driver relationships H o w e v e r , four such relationships a r e most relevant to
exist in our society, and a great variety of owner-driver scenarios can be imagined. They are: the sanctioned driver is the sole (registered) owner of a vehicle;
e
countermeasure implementation and these a r e t r e a t e d in this volume.
the sanctioned driver is the sole owner of a vehicle, which others use with his permission; the sanctioned driver shares both (registered) ownership and use of a vehicle with one or more persons; and
e
the sanctioned driver does not own a vehicle, but rents or borrows vehicles owned by others.
1.4
Content of Volume
The remainder of this volume is organized into three sections. Section 2.0 is devoted to the identification and discussion of legal issues t h a t can arise in connection with the DDWS, CMD, and OTR countermeasures, and the potential constraints t h a t can arise from those issues, Section 3.0 discusses a p p r o a c h e s that can be used t o resolve those constraints. Section 4.0 discusses the general legal feasibility of the DDWS, CMD, and OTR countermeasures, and presents recommendations concerning their use.
2.0
IDENTIFICATION AND DISCUSSION OF LEGAL ISSUES
Several distinct groups of legal issues are raised by countermeasure programs using the DDWS, CMD, and OTR devices. The first group of issues concerns the authoritv of a court or driver-licensing authority to order the installation of these devices. The second of these involves constitutional and statutory issues that are raised by installation of these devices. The final group of issues arises from the actual use of the DDWS, CMD, and OTR countermeasures to enforce both traffic laws and driving restrictions. 2.1
Constitutional/Statutorv Authoritv to Order Installation of Mechanical
The f i r s t s e t of legal considerations that a f f e c t countermeasure
Devices programs involving the DDWS, CMD, and OTR concern whether there exists legal authority to compel installation of these devices. Legal authority includes both the general authority of government to ensure safe highways, and the authority to take specific actions against particular groups of traffic offenders. 2.1.1 General. The use of DDWS, CMD, and OTR devices is
ultimately based on the state's so-called "police power,'' t h a t is, t h e power to legislate for the public health, safety, welfare, and morals (4). That power is broad and is bounded only by the limits imposed bv the U.S. and s t a t e constitutions. Unless exercises of the police power infringe fundamental constitutional rights, or a r e unrelated to legitimate s t a t e purposes, then courts will presume them to be constitutional (5). Courts have long recognized highway safety as an important s t a t e interest
(61, and this interest has justified measures designed to remove drunk or
otherwise unfit drivers from the highways (7). Police agencies have long used mechanical and electronic devices-such
as speed measuring devices (8) and chemical t e s t equipment (9)--to aid them in enforcing t r a f f i c laws. Their use initially was challenged by drivers; these challenges, however, did not allege t h a t use of t h e devices themselves was unconstitutional; rather, it was claimed that they did not provide reliable measurements of vehicle speed or blood alcohol content. In other words, they alleged that the use of t e s t results in evidence, though not the use of the device itself, violated due process of law (10). Thus, p o l i c e a g e n c i e s a r e n o t p r o h i b i t e d from using technological innovations; it is only when their use violates protected individual rights such as those discussed here, or when unreliable evidence is generated, that legal constraints on their use would arise. It should be pointed out t h a t the devices discussed here are intended to be installed on vehicles driven by persons convicted of (or a t least charged with) t r a f f i c offenses, especially driving while intoxicated (DWI). Mandatory imposition of the DDWS, CMD, and OTR on the general driving public is not contemplated. As s t a t e d earlier, there are two principal means by which the use of countermeasure devices would be required: first, by court order in connection with probation, pretrial diversion, or earned charge reduction (ECR); and second, by exercise of the driver licensing authority's power to restrict driving privileges. 2.1.2 Court Authoritv t o Require I n s t a l l a t i o n of a D e v i c e a s a Condition of Probation. It is believed that most drivers will be required to install mechanical devices on the vehicles they drive as t h e result of probation conditions restricting their drinking and driving behavior. In addition, probation has b e e n used l o n g e r , m o r e widely, a n d m o r e consistently than have other rehabilitative procedures; therefore, a more substantial bodv of law has been developed with respect to probation. For those reasons the primary emphasis of this section is on probation conditions, imoosed Sv a court on a convicted traffic (i.e., DWI) offender. 2.1.2.1 Statutory Authority t o Grant Probation. Probation is the release of a convicted offender by the court, under conditions imposed by the court, for a specified period during which imposition of a sentence is
suspended (Killinger, Kerper, and Cromwell 1976, pp. 14-15).
In some
s t a t e s t h e powers t o g r a n t probation, and to impose conditions on probationers, were considered "inherent;" in other s t a t e s it was held that legislative probat ion required legislative authorization (Killinger, Kerper, and Cromwell 1976, pp. 17-31). Today in all states, a court's general a u t h o r i t y t o p l a c e convicted offenders on probation is expressed in statutes. These statutes also specify the classes of offenders who can be g r a n t e d probation, and the terms of probation that shall or may be imposed (11). Nonetheless, courts retain considerable discretion as to granting probation and supervising probationers.
A related and more recent trend in the law has been the passage of
s t a t u t e s specifically dealing with the rehabilitation of convicted drunk drivers. These statutes, which commonly appear in s t a t e vehicle codes, typically offer the offender an opportunitv to avoid mandatory sanctions (such as jail or license sus~ension)by participating in a program directed a t his alcohol abuse; many of these statutes specifically permit a court or driver-licensing authority t o issue limited drivers' l i c e n s e s t o t h o s e participating in alcohol-rehabilitation programs (12). Despite the existence of these new DWI rehabilitation provisions, many--if not most--drivers ~ a r t i c i p a t i n gin rehabilitative programs likely will be assigned bv a court as the result of probation, pretrial diversion, or ECR conditions rather than under the terms of a specific DWI rehabilitation statute. 2.1.2.2 Probation Conditions: The Requirement of Reasonableness. Such
Countermeasure programs involving the use of the DDWS, CMD, or OTR involve restrictions in both the liberty and privacy of participants. restrictions might be unconstitutional or otherwise illegal if they were imposed on the general public; however, they would be r e g a r d e d a s reasonable in the context of a probation scheme involving a sanctioned traffic offender. An offender may not be placed on probation without his consent; thus, it can be argued that the ~robationer agreed to the terms and conditions imposed on him by t h e c o u r t (13). In addition, many courts have characterized probation as an "act of grace" or as a continuation of the
offender's yycustodyyy-reasonsjustifying t h e limitation of his rights (14). Therefore, restrictions imposed on a probationer's liberty, which would violate the constitutional rights of an unsanctioned individual, have been upheld by courts. Notwithstanding these justifications, the general standard governing probation conditions is one of reasonableness. Conditions t h a t a r e illegal or impossible t o carry out, unrelated to the off enderfs criminal conduct, or unduly restrictive of personal liberty have been considered unreasonable (Little, Young, and Selk 1974, pp. 11-13) (15). Measured by this standard, conditions requiring drivers convicted of alcohol-related o f f e n s e s t o abstain from using alcohol have been upheld by courts as reasonable (16); similarly, probation conditions restricting traffic offendersy use of vehicles have likewise been upheld (17). Therefore, probation conditions that are likely to be enforced using the DDWS, CMD, and OTR are, under current law, reasonable with respect t o convicted t r a f f i c offenders, especially those convicted of DWI. Given t h a t conditions restricting driving and drinking are reasonable, the use of mechanical devices is also likely to be found reasonable. Requiring a driver to maintain a DDWS, CMD, or OTR on his vehicle can be analogized to the common condition requiring a probationer t o report his activities to his probation officer (18), or to conditions requiring a convicted narcotics offender to submit to periodic physical testing for the presence of narcotics (19), or that a probationer submit to polygraph tests at specified times (20). In those cases probation conditions resulted in substantial invasions of liberty and privacy interests; however, because those devices were reasonably necessary to supervise legitimate probation conditions and were related to the offendersf criminal behavior (and also were agreed to by offenders a s an a l t e r n a t i v e t o o t h e r s a n c t i o n s [ K i l l i n g e r , K e r p e r , and Crowell 1976, pp. 54-55]), such invasions of probationersf liberty and privacv were for the most art u~held. In a d d i t i o n t o due process of law, which generally prohibits the i m p o s i t i o n of u n r e a s o n a b l e p r o b a t i o n c o n d i t i o n s , o t h e r s p e c i f i c c o n s t i t u t i o n a l o b j e c t i o n s might be made t o DDWS, CMD, or OTR countermeasure programs. These issues are discussed more fully l a t e r in
the volume. 2.1.2.3 The Relationship Between Probation and Pleas of Guilty. In many cases a convicted traffic offender is placed on rob at ion as the r e s u l t of having pled guilty. Oftentimes the offender makes a plea agreement with the prosecuting attorney: the offender agrees to lead guilty to some t r a f f i c offense and thus avoid the possibility of being c o n v i c t e d of a m o r e s e r i o u s o f f e n s e ; t h e p r o s e c u t o r , in r e t u r n , recommends to t h e judge a sentence of probation or agrees to charge the driver with a lesser offense (typically one not involving jail or loss of driving privileges), and avoids the time and expense of a trial. It should be noted that while prosecutors have wide discretion concerning whom they charge and what charges they bring, they do not have power to i m p o s e s e n t e n c e s . All a p r o s e c u t o r c a n do is make s e n t e n c i n g recommendations to the court (21). In t h e event a prosecutor fails to carry out his part of the agreement, the driver who entered a guilty plea and who was subsequently sanctioned could challenge both t h e adjudication of guilt and the punishment. A prosecutor can be compelled t o honor his promises ( 2 2 ) , i n c l u d i n g a promise to recommend a specific sentence, but as already stated, not a promise that a certain sentence would in fact be imposed. Even i f t h e r e was no violation of the agreement on the prosecutor's part, the driver may challenge his guilty plea on the grounds t h a t i t was not ~ v o l u n t a r v ~ ( m a d e w i t h o u t t h r e a t s or c o e r c i o n ) (23) and flknowing'f (made with knowledge of the rights he agreed to waive and the consequences of his plea) (24). The driver's knowledge and consent must be documented, and unless the trial record shows a knowing and voluntary plea, his plea is subject to challenge (25). 2.1.2.4 Summary. Installation of the DDWS, CMD, and OTR devices most likely will occur in connection with drinking or driving restrictions, imposed as conditions of probation, on drivers convicted of DWI or other traffic offenses. Probation conditions restricting drinking or driving behavior a r e considered reasonable restrictions of a t r a f f i c offender's
liberty, and the use of mechanical devices to enforce those conditions l i k e w i s e has been considered a reasonable restriction of libertv and privacy interests. Sentences to probation often result from plea agreements, and accused persons waive important rights in choosing to plead guilty. For those reasons, pleas of guilty must reflect a knowing and voluntary waiver of rights; moreover, prosecuting attorneys must honor the promises thev made to obtain those pleas. Because modern courts sometimes use procedures other than probation to assign offenders to rehabilitative Drograms, the principal alternatives to probation--pretrial diversion and ECR--are discussed in the following sections. 2.1.3 C o u r t A u t h o r i t v t o R e q u i r e I n s t a l l a t i o n of a Device in
Connection with Pretrial Diversion or Earned Charge Reduction (ECR). In the criminal justice system, two relatively new processes have developed through which traffic-law offenders may be sanctioned. The first of these is generally referred to as "pretrial d i v e r s i ~ n . ~ ~ pretrial diversion In the prosecutor generally agrees to assign an a c c u s e d o f f e n d e r t o a rehabilitation program as a condition of dismissing (dropping) the charges against him (26). Upon his successful completion of t h e program the prosecution is terminated; however, i f the agreed-to conditions are not carried out the prosecution may be resumed. The second process is referred to as earned charge reduction (ECR). In contrast to
retrial diversion, ECR results in conviction of a less
In ECR, which also
serious offense rather than a dismissal of charges.
has been referred to, in some jurisdictions as "plea under advisement," the accused enters a provisional guilty plea to the serious offense (such as DWI) with which he is charged. -4t the same time i t takes the plea under advisement, the court agrees with the accused that should he fulfill certain conditions (such as participating in an alcohol-rehabilitation program and not committing further alcohol-related offenses) the court will refuse to accept his original guiltv plea and acceDt instead a plea to some lesser charge (27).
In contrast with probation, which is governed by s t a t u t e , p r e t r i a l diversion and ECR frequently a r e ffinformal," that is, they are exercises of courtsf and prosecutors1 discretionary powers. While some s t a t e s have passed statutes providing for an governing pretrial diversion programs (28), pretrial diversion programs and ECR programs usually result from the a b s e n c e of s t a t u t e s authorizing rehabilitation in lieu of mandatory sanctions (29). Owing to the lack of statutory a u t h o r i t y g o v e r n i n g pretrial diversion and ECR programs, little law has so 'far been developed concerning these processes. However, the nature of these programs is such t h a t a driver seldom will challenge restrictions placed on his liberty as conditions of entry. This is first of all so because entry into both p r e t r i a l diversion and ECR p r o g r a m s require the driver's consent. Moreover, program participants a r e f r e e t o withdraw a t any time and choose instead to risk trial, sanctioning, or both. Two considerations must be pointed out. First, many ECR participants might have initially pled guilty to the more serious charge as part of the overall ECR process, and for that reason the legal issues governing guiltv pleas, which were discussed earlier, may apply, Second, entry into a pretrial diversion program is a waiver of one's right t o a s ~ e e d ytrial (30). Such a waiver, as in the case of other rights in connection with a guilty plea, must be both knowing and voluntary. Therefore, failure t o ensure that program participants properly waive their rights may trigger challenges to sanctions received by participants. 2.1.4 Power of t h e Driver Licensing Authority to Require Installation of a Device. Licensing drivers and ensuring t h a t only qualified and competent drivers a r e permitted to ooerate vehicles are functions carried out by state administrative agencies, commonly called deoartments of s t a t e or departments of motor vehicles. These agencies are created and governed by statutes, which n o r m a l l y impose s t a n d a r d s f o r d r i v e r licensing, specify agency procedures, and set out grounds for investigation or disqualification of drivers (31). To that extent, therefore, t h e powers of driver-licensing authorities are limited. Many s t a t e s have passed legislation c r e a t i n g a c l a s s of t r a f f i c
offenses--frequently including DWI--that a r e punishable by mandatory l i c e n s e suspension (32). issue him a restricted license: mandatory act. When a d r i v e r i s c o n v i c t e d of a its decision to revoke is a "ministerial" or mandatory-suspension offense, the licensing authority lacks authority t o Thus, in those s t a t e s any decision t o r e s t r i c t t h e
offender's driving ~rivileges,in lieu of revoking or suspending them, must be made by the court; in a number of states, even the court cannot grant a restricted license when revocation or sus~ensionis called for by statute. Other states have given licensing agencies more or less general authority to issue so-called '!hardship licensesT1in lieu of punishing drivers with mandatory sanctions (English 1977). In addition, as pointed out earlier, a number of s t a t e s also authorize licensing authorities to issue restricted licenses t o convicted DWI offenders ~ a r t i c i p a t i n gin r e h a b i l i t a t i o n programs. Finally, in many states, the licensing authority has discretion over the length of a mandatory suspension (33); thus, i t may in effect flcommutev part of the suspension period in exchange for the driver's agreement to accept driving restrictions for the balance of the period. Thus, s t a t e law determines if--and under what conditions--a licensing authority can place a convicted traffic-law o f f e n d e r under driving restrictions. 2.1.5 Summary. Authority t o install a DDWS, CMD, or OTR device
on a v e h i c l e d e r i v e s f r o m t h e g e n e r a l a u t h o r i t y of a c o u r t o r driver-licensing agency to impose restrictions on a driver convicted of a DWI or other traffic offenses. There exist four p r i n c i ~ a lprocesses by which drivers can can come under such restrictions: probation, pretrial diversion, ECR, and administratively-imposed restrictions. The process by which a particular driver enters a DDWS, CMD, or OTR countermeasure program depends in large part on s t a t e laws fixing penalties for traffic offenses and allocating licensing powers to courts and driver-licensing authorities. In s t a t e s where c e r t a i n o f f e n s e s a r e punishable by mandatory sanctions (such as jail or license susoension), or where no legislative ~ r o v i s i o nexists for t h e issuance of restricted or "hardshipn licenses, informal procedures--such as pretrial diversion or
ECR-are likely to be developed by courts.
The theory underlying each
of the four processes is the same: the driver has given his consent to restrictions on his liberty as an alternative to receiving more serious sanctions. The DDWS, CMD, and OTR countermeasures all invade driversT liberty and privacy interests; however, these restrictions likelv will be considered reasonable when imposed on convicted or accused traffic offenders. This is so first of all because the driver has consented to the restrictions in lieu of a complete loss of driving privileges, and also because the devices themselves are reasonable (i.e., related t o the original traffic offense) means of monitoring compliance with those restrictions. Thus, the mandatory installation of a c o u n t e r m e a s u r e d e v i c e in c o n n e c t i o n with a r e s t r i c t e d driving program is not unreasonable. However, the circumstances under which a driver is assigned t o a DDWS, CMD, or OTR program might violate constitutional or statutory provisions. These are discussed in the following section.
Constitutional/Statutorv Issues Affecting Installation of Devices A second group of legal issues affecting installation of mechanical devices relates to the circumstances under which the device is installed. Two constitutional issues--the equal protection guarantee and the due process of law requirement-are raised by the assignment of offenders to countermeasure programs. This s e c t i o n also deals with two o t h e r c o n s t i t u t i o n a l issues--cruel and unusual punishment and the right to travel-that might be raised by persons challenging these countermeasure devices. Finally, the impact of s t a t e vehicle-equipment statutes on the installation of countermeasure devices is discussed.
2.2
2.2.1
The Equal Protection Guarantee.
Implementation of DDWS,
CMD, and OTR countermeasure programs requires both the installation of devices on vehicles and the continuing supervision of driversT compliance with restrictions. These programs are therefore costlier than the simple act of revoking or suspending a license. Courts or licensing authorities faced with these additional costs may
choose either to assume them or to require restricted drivers t o pay all or part of them. Should they follow a policy of requiring drivers to pay costs of countermeasure programs, it is conceivable t h a t indigent drivers (that is, drivers lacking funds) would be excluded from those programs. Exclusion of indigent drivers from rehabilitative Drograms, if i t occurs, is likely t o be challenged under the Fourteenth Amendment to the U.S. Constitution (34). Although t h e equal protection guarantee prohibits d i s c r i m i n a t i o n based on race, religion, and alienage (noncitizenship) without compelling justification (35), and apparently p r o h i b i t s most differential treatment based on gender (36), its application to distinctions made on the basis of wealth is less clear. Discrimination b a s e d on wealth--such as unequal funding of oublic schools-is not unconstitutional per se (37); on t h e o t h e r hand, t h e d e n i a l of c e r t a i n ~ r o c e d u r a l safeguards--such as legal counsel or transcripts for appeal-to criminal defendants because they lack funds has been declared unconstitutional (38). I t is t h e r e f o r e u n c e r t a i n w h e t h e r a c c e s s t o rehabilitative programs--especially those supervised by courts--could be denied t o indigent drivers. A number of state statutes require probationers to pay lyreasonable costs associated with their prosecutiont1 ( 3 9 ) , and s o m e specifically authorize assessing probationers the costs of supervision (401, but these provisions do not appear to authorize assessments against those l ~ h oa r e u n a b l e t o pay, At any r a t e , the l a t t e r practice, that of requiring probationers to bear the costs of their own supervision, has been specifically criticized by the American Bar Association (41). In addition to challenges based on the oossible exclusion of indigents, c o u n t e r m e a s u r e p r o g r a m s could f a c e other challenges alleging that assignment methods a r e irrational and arbitrary. This is so because a driver who does not own a vehicle, or who shares the ownership of a vehicle with others, might not obtain the owner's consent t o h a v e a device placed on the vehicle he drives. Because (as will be explained below) a court cannot order a device installed without the vehicle owner's consent, nonowners of vehicles might be excluded from countermeasure programs and instead f a c e complete loss of driving privileges. T h e resulting inequality-among equallv culpable drivers that some continue to
drive while others are prohibited from so doing--would not necessarily result from differences in wealth. Those affected might include city dwellers, spouses who jointly own vehicles, residents of one-vehicle households, and commercial (truck, bus, and taxi) drivers. It is unlikely, however, that an equal protection challenge would succeed. There is no right to be placed on probation (42); it follows that a driver likewise has no right to participate in pretrial diversion or ECR, entry into which is considered a discretionary function of the prosecutor. Moreover, assuming no discrimination has occurred on the basis of race, religion, alienage, or sex, the differental treatment of offenders that results from DDWS, CMD, or OTR countermeasure programs is constitutionally permissible ( 4 3 ) . F i n a l l y , i t should be pointed out that the countermeasure programs discussed in this volume are not the only alternatives t o outright license revocation or suspension. Other alternatives include driving restrictions unsupervised by mechanical devices, driver-improvement classes, and attendance at alcohol-treatment sessions.
2.2.2
The Due Process Requirement.
In the United States, vehicles
a r e commonly driven by persons other than their owners; these drivers include emplovees and relatives of the owner as well as vehicle renters. B e c a u s e the DDWS, CMD, and OTR countermeasures a r e directed a t individual drivers, but must be installed on vehicles, two or more drivers will commonly operate a vehicle equipped with one of these devices. It is therefore probable that some restricted drivers would regularly operate vehicles owned by others. When a s a n c t i o n e d d r i v e r o p e r a t e s a vehicle owned by another unsanctioned individual, a mechanical OTR device cannot be placed on that vehicle without the owner's consent. This is because the compelled installation of such a device restricts the owner's use of his property (44), and the Fourteenth Amendment to the U.S. Constitution (45) prohibits the government from depriving a person of property--or r e s t r i c t i n g his legitimate use of it--without due process of law (46). For that reason, restricting the use of a vehicle by one who had not been found guilty of committing any traffic-law offenses, justifying such restrictions would
violate t h e due process requirement.
In t h e case of a jointly-owned
vehicle, similar due process considerations govern the installation of countermeasure devices. A court ordering i n s t a l l a t i o n is t h e r e f o r e required t o obtain consent from the other joint owners before ordering a device installed on t h a t vehicle. Where t h e sanctioned driver is t h e registered vehicle owner, and other individuals drive his vehicle, these due process issues will not arise, since the vehicle owner legitimatelv may restrict other persons1 use of it. However, in the case of OTR, which cannot distinguish among vehicle operators, other drivers1 use of t h e sanctioned driver's vehicle would create evidential difficulties. Other Challenges t o Installation of Mechanical Devices. Two o t h e r c o n s t i t u t i o n a l p r o v i s i o n s might be r a i s e d t o the compelled installation of mechanical devices on vehicles. the first of these is t h e p r o h i b i t i o n of c r u e l or unusual punishment contained in the Eighth Amendment to the U.S. Constitution (47). It might be argued t h a t t h e p r e s e n c e of a highly conspicuous device (one t h a t when activated commands a great deal of attention) on a vehicle would "brand" its owner as an alcohol abuser or an habitual t r a f f i c offender, and thus would be vindictive and therefore cruel. However, t h e purpose of both t h e DDWS
2.2.3
or CMD countermeasures is t o prevent impaired vehicle operation; as an alternative to using an interlock these devices operate bv warning both the driver and other t r a f f i c of the driver's impairment. Furthermore, it is likely that any testing or monitoring device placed in a vehicle would be small and relatively inconspicuous. Thus, the possibilitv that a DDWS or CMD would publicize a driver's alcohol problem is onlv incidental to these devicesf primary purpose, and this incidental 'lbranding" is not the type of punishment that the Eighth Amendment prohibits (48). Even if branding in f a c t took place, each of the situations envisioned in this volume involves a driver having chosen to accept installation of a device a s a n a l t e r n a t i v e t o m o r e s e r i o u s s a n c t i o n s . Thus, n e i t h e r the countermeasure device itself nor its activation would constitute t h e tvpe of cruel and unusual punishment ~ r o h i b i t e dby the Eighth Amendment. f Similarly, placing an appropriate notation on a driver's license, s ~ e c iying
the equipment, drinking, or driving restrictions t h a t were placed on him, or would not be "cruelTT T1unusual.l' The second possible challenge is based on the constitutional "right to travelT1(49). Any limitation of an individual's driving privileges is by definition a restriction on his ability to travel; however, this is not an infringement of his c o n s t i t u t i o n a l " r i g h t t o t r a v e l . " R a t h e r , t h e c o n s t i t u t i o n a l provision p r o h i b i t s s t a t e s from denying e n t r y t o nonresidents, or from penalizing individuals for having changed t h e i r residence; it does not prohibit states from imposing reasonable regulations on t h e use of vehicles (50). Furthermore, denying or r e s t r i c t i n g a n individual's driving privileges does not deny him access to other means of transportation, such as public transportation or vehicles driven by others. Vehicle Equipment Regulations. Both the DDWS and CMD warn t h e driver and other t r a f f i c by activiating the v e h i c l e ' s e m e r g e n c y flashers and horn. It has been suggested that the installation of these devices, or the flashing lights and continuously sounding horns associated with t h e i r a c t i v a t i o n , would violate vehicle equipment regulations, However, neither the installation nor the activtion of t h e DDWS or CMD appears to violate applicable Uniform Vehicle Code (UVC) equipment restrictions relating to lights or horns (51). The UVC provision governing horns is somewhat less clear: i t s t a t e s that a horn may not emit an lTunreasonably loud or harsh soundT1 (52), nor may a driver sound his horn e x c e p t when r e a s o n a b l y n e c e s s a r y ITto ensure s a f e operation1' (53). Nonetheless, both UVC provisions could be construed t o permit use of flashers and horns to warn other traffic of an impaired driver's presence. Finally, even if these devices do violate equipment regulations, t h e UVC provides for the issuance of permits that would allow the operation of a vehicle equipped with a device t h a t does not o t h e r w i s e c o n f o r m t o equipment regulations (54).
2.2.4
2.2.5 Summarv. Constitutional and statutory provisions govern the implementation of restricted-driving countermeasure programs. Installation of DDWS, CMD, or OTR devices might encounter challenges based on a
number of constitutional or statutory provisions.
Two of these might pose
constraints on t h e installation of these devices. The first of these, the guarantee of equal protection of t h e laws, could pose constraints when drivers assigned to countermeasure programs are required to pay the costs of their supervision. Such a requirement could deny indigent drivers t h e opportunitv t o participate in rehabilitative Drograms in lieu of outright loss of their driving privileges. The second provision, t h e due process of law requirement, could arise when a sanctioned driver shares with others the ownership of a vehicle, or drives vehicles owned b~ others. Although m e c h a n i c a l devices a r e designed to monitor individual drivers, these devices must be installed on vehicles; therefore consent of t h e vehicle owner as well as that of the driver would be required. Two other issues-the prohibition of cruel and unusual punishment, and the fundamental right to travel-might provide the basis for challenges to the installation of these devices. Neither issue, however, raises serious legal constraints on countermeasure programs using the DDWS, CMD, or OTR. Finally, equipment s t a t u t e s patterned a f t e r t h e UVC provisions likely w'ould not constrain the installation of the DDWS, CMD, or OTR devices, nor would they constrain their activation; a t any r a t e , the UVC provides that permits could be issued for vehicles not conforming t o equipment regulations. 2.3 Constitutional/Statutorv Issues Affecting t h e Use of Mechanical Devices in Traffic-Law Enforcement Assuming t h a t a court or driver-licensing authority has power to restrict driving, and a DDWS, CMD, or OTR device legitimately has been placed on a vehicle, further legal issues might arise when information generated by these devices is used to enforce traffic laws or drinking or driving restrictions. These legal issues include: the scientific validity and reliability of these devices; the constitutional requirements governing arrests, searches, and seizures; and evidential limitations of these devices. 2.3.1 Scientific Validitv and Reliability. A11 three countermeasure
devices a r e designed t o mechanicallv d e t e c t traffic violations (impaired
driving in the case of DDWS and CMD; driving during prohibited hours in the case of OTR) and thus supplement the visual detection of violations bv police officers assigned to traffic patrols. Underlying the use of these mechanical devices is the assumption that because the number of police officers is limited, and because certain traffic violations a r e not really observable, conventional enforcement strategies must be supplemented by more comprehensive supervision methods. current t r a f f i c law enforcement: This is commonly done in radar speed measurements supplement
police officers1 own observations and judgments of speed, and chemical t e s t s f o r i n t o x i c a t i o n s u p p l e m e n t officersf observations of driversf coordination and opinions of their impairment. If an electronic or mechanical device is used to provide evidence that would be used at the trial of a traffic offense, that evidence must meet certain criteria for scientific validity and reliability: the device must be established as reliable, it must be in good working order, its operator (if a n y ) must be p r o p e r l y t r a i n e d and qualified, and proper operating procedures must have been followed (Cleary 1973, pp. 514-17, 763-66).
In
a sense the DDWS, CMD, and OTR devices gather evidence of traffic offenses, since both DWI and violation of license restrictions a r e t r a f f i c offenses in all states. However, i t is anticipated t h a t these devices would be used in more or less informal proceedings (compared with t h e t r i a l of a serious traffic offense), ranging from probation-revocation proceedings to investigations into whether a driver had carried out the t e r m s of a rehabilitation program. Nevertheless, even in these less formal contexts, countermeasure devices must be reliable enough t o justify making decisions (such as whether to revoke probation or terminate pretrial divertee status) on the basis of t h e evidence they produce (55). Unreliable devices also would have little practical value and likely would not be used in the first place. With respect to the DDWS, it is not certain whether psvchomotor tests of the type envisioned for this device would accurately identify impaired d r i v e r s . Studies have shown that such t e s t s have limited a b i l i t v t o discriminate, for example, between a driver's alcohol-impaired condition and the same driver's sober s t a t e (Kaplan, Lathrop, and Richards 1976).
In one studv, the CTT testing mechanism showed a fifty percent false negative r a t e among drivers having a blood alcohol content (BAC) of .lo% (Tennant 1974, D. 52); that is, half of all drivers at or above t h e accepted level of legal intoxication nonetheless "passed17(56). In theory, these a devices could be adjusted to "failT7 larger proportion of tested drivers; however, such an adjustment would generate "false positives," that is, erroneous identification of legally unimpaired drivers as impaired ones. False positives and negatives alike detract from the reliability of a DDFVS. The limited ability of the DDWS to discriminate between impaired and urnimpaired drivers probably would preclude its admission into evidence at a DWI trial, for reasons of reliability similar t o those precluding t h e admission of polygraph results. This does not pose a serious constraint to the use of this device, since i t is not intended t h a t the DDWS results would replace existing chemical and physical tests as proof of impairment. On t h e other hand, t h e limited reliability of DDWS does not a p p e a r serious enough to preclude Dolice officers from relying on it as a reason to investigate, for its warning systems, when activated, raise a t least a "reasonable suspicion" that a driver might be violating the DWI statute. The finding that coordination tests are of limited value in determining impairment also applies to the CMD, the only difference being that the CMD-type devices have not been tested as extensively as the psychomotor t e s t s on which the DDWS is based. Thus, the fact that a CMD had been activated would not be acceptable evidence of impairment a t a DWI trial; however i t , like the DDWS, would provide grounds to stop a vehicle and investigate further. The OTR device raises somewhat different considerations of reliability. It cannot distinguish among operators of a vehicle, one of them being the restricted driver, the rest unrestricted. The only way to identify the operator with certainty would be to observe him in the a c t of driving (and observe his driver's license as well to determine whether his driving privileges had in fact been restricted). Of course, once an officer has stopped a vehicle and exmined the driver's license, there is no practical value in examining the vehicle's OTR record as well, since if a violation has occurred, the officer already has evidence of it.
2.3.2
Evidential Difficulties Arising Prom t h e C o u n t e r m e a s u r e
Devices. Although the DDWS, CMD, and OTR devices may generate information that could be used in law enforcement, that information would not provide reliable--or possibly even acceptable--proof that a driver had committed a traffic offense. The DDWS and CMD, as pointed out above, raise only a reasonable suspicion the driver might be impaired; the actual determination of impairment still must be made by a police officer in the course of a lawful investigation. OTR presents a different s e t of evidential issues. Because i t r e c o r d s t h e d a t e and t i m e of , operation, but cannot identify the operator, entries showing vehicle use during prohibited hours could reflect either lawful driving behavior by an unsanctioned driver or a violation of restrictions by the sanctioned one. It is envisioned that all three devices would be used in connection with probation or some other sanctioning scheme, and violations identified by these devices would be considered grounds for further sanctions. As s t a t e d before, the most likely process in which drivers would be assigned to a DDWS, CMD, or OTR countermeasure program is probation. For that reason, as well as the existence of a relatively well-developed body of law dealing with probation, the remainder of this section centers on probation revocation. 2.3.2.1 Revocation of Probation. Probation may be yfsuperviseduor
ylunsupervised.yr When it is supervised, t h a t function normally is carried out by a judge or by an official of the court, who typically requires the probationer to report a t regular intervals. In the event the probationer fails to report, violates the conditions of probation, or commits violations of the law, the probation officer may-if he has a 'lreasonable beliefyTthat violations have occurred (57)-begin revocation proceedings in court. The revocation proceeding is not a criminal trial ( 5 8 ) ; f o r t h a t r e a s o n , violations need not be proven beyond a reasonable doubt as they must in trials (59). However, probation status is an interest in yTlibertyly a t is th protected by the Due Process Clause of the U.S. Constitution (60). For that reason, probation may not be revoked unless procedural guarantees
such as notice, t h e opportunity t o appear personally, a neutral d e c i s i o n - m a k e r , a w r i t t e n r e p o r t of findings, and (in some cases) confrontation of witnesses are granted (61). Termination of limited driving privileges, like probation revocation, involves important personal interests protected by the Due Process However, Clause the procedural requirements that apply to a termination proceeding l i k e l y would not b e a s e x t e n s i v e a s t h o s e g r a n t e d in probation-revocation cases, a t least where confinement to jail would not be an outcome of the termination proceeding (63).
(62).
T e r m i n a t i o n of pretrial divertee s t a t u s or expulsion from a ECR program is less likely to be considered as the deprivation of an interest protected by the Due Process Clause than would probation revocation or termination of limited driving privileges. Because decisions t o remove participants from pretrial diversion or ECR programs a r e matters of prosecutorial or judicial discretion, it is thus rather unlikely t h a t courts would hold t h a t drivers a r e constitutionally f'entitledffto remain in those programs (64). However, should a prosecutor or judge a c t in bad faith, a p a r t i c i p a n t could b e e n t i t l e d to the benefits (such as dismissal or reduction of charges) of the bargain he made. Some recent cases have extended the holding of Santobello v. New York (65), which specificallv enforced a plea agreement, to pretrial diversion (66). Moreover, i t is unlikely as a practical matter that a judge or prosecutor would remove a driver from a diversion or ECR program in t h e absence of evidence he considered credible. P r e s u m ~ t i o n sand Burdens of Proof. Proceedings to revoke probation status or terminate driving privileges raise an important legal issue with respect to whether OTR records are sufficient evidence to justify taking action against the driver. As s t a t e d earlier, these records
2.3.2.2
do not identify who operated t h e vehicle at any specific time; for that reason their usefulness, in establishing t h a t a s a n c t i o n e d i n d i v i d u a l violated driving restrictions, is limited. In t h e enforcement of traffic laws, situations frequently occur in which a vehicle can be identified but its owner cannot be; in some states,
courts and legislatures have responded by enacting legislation raising a presumption that the owner of the vehicle was its driver (67). Despite their label, these owner-driver presumptions actually a r e "inferences": t h e i r l e g a l e f f e c t is t o permit--but not require--a judge or jury to conclude, from t h e f a c t an individual was t h e registered owner of a vehicle, that he was also its driver at the time of the offense (68). Presumptions must be consistent with due process of law: courts have t' r e q u i r e d t h a t any presumption be " r a t i ~ n a l , ~h a t is, based on some "natural relationship" between t h e proven f a c t (in this case, v e h i c l e ownership) and the presumed (inferred) f a c t (in this case, driving the vehicle) (69) Courts have conceded that there in fact exists a relationship between owning a vehicle and driving one. Thus, most c o u r t s h a v e upheld rebuttable owner-driver npresumptions'f in parking violation cases (701, and some have accepted in prosecutions of more serious offenses (71). Those courts that have refused t o apply such ffpresumptions'f appear to have done so because they had not been created by statute (72). Even though these lrpresumptionsf'would in effect compel an owner to introduce evidence t h a t he was not t h e driver, the Supreme Court has held t h a t such a result would not violate the Fifth Amendment privilege against self-incrimination, discussed more fully below ( 7 3 1. (On the other
.
hand, a s t a t u t e requiring an owner to rebut the owner-driver presumption by taking the stand and testifying, would violate the privilege [74] ). Thus, assuming a court-created owner-driver "presumption" (rather than a legislatively-created one) is found to be acceptable, a court might use an owner-dr iver inference, under which the unexplained presence of entries indicating unauthorized driving is sufficient to establish that the owner violated his restrictions. Of course, such an inference wollld be usable only if t h e sanctioned driver also were t h e sole (as opposed to joint) owner of the OTR-equipped vehicle, Similar considerations would apply when the sanctioned driver is a pretrial divertee or E C R program participant, or is placed under driving restrictions by a driver-licensing authority. The inapplicability of the privilege against self-incrimination, together with the less demanding
standard of proof (most likely a preponderance [majority] of evidence), likely would permit a court or licensing authoritv to take action against a sanctioned driver-owner on the basis of unexplained e n t r i e s showing possible violations. In sum, owner-driver llpresumptionsll could be applied by courts to reduce the uncertaintv inherent in OTR records: where t h e sanctioned driver owns the OTR-equipped vehicle and the OTR record indicates that violations have occurred, a l a c k of e x p l a n a t i o n by t h e s a n c t i o n e d driver-owner would be sufficient t o justify a finding of violation and its consequences. However, where the sanctioned driver is a joint owner or nonowner, owner-driver presumptions probably could not be used. Constitutional Provisions Governing Arrest, Search, and Seizure. A l t h o u g h t h e p r i m a r y p u r p o s e of t h e DDWS, CMD, and OTR countermeasures is to enforce driving restrictions, i t is likely t h a t police officers will rely on these devices as the basis for taking enforcement action. This is especially true with respect t o t h e DDWS and CMD: an
2.3.3
activated device could result in the DDWS- or CMD-equipped vehicle being stopped and possiblv the driver being arrested as well. Arrests, searches, and seizures (the latter term includes police stops of vehicles [751) a r e governed by t h e F o u r t h A m e n d m e n t t o t h e U.S. Constitution (76), which requires all such encounters to be llreas~nable.~~ While the DDWS and CMD countermeasures involve issues relating t o arrests or llseizurestl of the person, they do not be themselves raise issues relating t o searches. This is so because monitoring by these devices occurs with the driver's consent, and consensual searches are reasonable under the Fourth Amendment (77); moreover, in the case of probationers, this is true because their Fourth Amendment rights are limited, owing to the necessity of conducting searches to effectively su~ervisethem (78). T h e DDWS and CMD countermeasures raise questions dealing with llseizuresll because i t is likely t h a t a police officer would investigate v e h i c l e s with continuously sounding horns and flashing hazard lights. Because any encounter in which a police officer stows a vehicle is a llseizure," it is required bv the Fourth Amendment to be reasonable. The
reasonableness requirement is staisfied either by a t least an of ficerfs llreasonable suspicionft that a traffic-law violation has occurred (79) or by randomly stopping traffic for limited investigatory purposes, following objective guidelines such as stopping, at random, every tenth vehicle (80). Given that there exists some correlation between DDWS and CMD a c t i v a t i o n and driving impairment, and given also that continuously sounding horns and flashing lights are sufficiently unusual to c r e a t e in an officer's m i n d a reasonable suspicion of wrongdoing, the officer would be justified in stopping a vehicle whose DDWS or CMD has been activated. That stop, being justified, would put the officer in lawful position to observe what is in his ffplain viewff (81), including such evidence as the odor of intoxicants, open containers of liquor, or other aspects of the driver's behavior-such as slurred speech, bloodshot eyes, or poor physical coordination--that indicate impairment (82). These plain-view observations may in turn create lTprobable causeft-the officer's belief that it is more likely than not that the driver has committed an offense (83)-that the driver had driven while intoxicated. Probable cause is required, under the Fourth Amendment, to justify arresting a driver for an offense such as DWI (84) or compelling him to submit to a chemical test to determine his BAC (85). In sum, it should be noted t h a t activation of a DDWS or CMD would not be introduced at a DWI trial to prove guilt; however, activation could provide a police officer with justification to stop a vehicle, and conduct an investigation that could lead t o the driver's arrest for DWI and his subsequent testing for BAC. 2.3.4 T h e P r i v i l e g e Against S e l f - I n c r i m i n a t i o n . All t h r e e
countermeasure devices discussed in this volume may be viewed a s requiring a driver to furnish evidence of his own traffic-law violations. For that reason, drivers may claim that the use of evidence obtained from t h e s e d e v i c e s violates the privilege against self-incrimination guaranteed by the Fifth Amendment to the U.S. Constitution (86). F i v e e l e m e n t s a r e e s s e n t i a l t o claim t h e p r i v i l e g e a g a i n s t self-incrimination: there must be ~fcompulsion;fth a t compulsion must be t
exerted by the government; the compelled evidence must be utestimonial;lf i t must be "incriminatoryff ( t h a t is, it must raise the danger of criminal prosecution); and it must be ltpersonal,'f t h a t is, asserted neither by, nor in behalf of another (87). Unless all five elements are present, compelled self-incrimination does not exist and t h e Fifth Amendment challenge cannot succeed. Measured by these criteria, none of the countermeasure devices produces evidence in violation of the Fifth Amendment privilege. This is so because neither OTR records, nor DDWS and CMD warning by signals, would be considered fftestimonialff courts. Prior court decisions have held t h a t forced chemical t e s t s for intoxication (88), compelled submission of voice and handwriting specimens (8 9), a n d m a n d a t o r y reporting of onefs own t r a f f i c crash involvement to the police (90) were all llnontestimonialflin that they did not require the disclosure of private i d e a s , t h o u g h t s , or communication; for t h a t reason, they were not governed by the Fifth Amendment. Even if these devices were t o be considered within the scope of the privilege against self-incrimination, a challenge b a s e d on t h e F i f t h Amendment would likely fail anyway. Because drivers will have chosen DDWS, CMD, or OTR installation rather than f a c e other sanctions, their decision t o undergo supervision greatly undercuts any claim that anv evidence they gave was ltcompelled" (91). This is especiallv true i n t h e case of ECR participants and retrial divertees, who are free to leave the program at any time. In any event, because these countermeasure devices a r e intended to be installed in conjunction with probation or some other sanctioning scheme, the driver's Fifth Amendment protection against self-incrimination is diminished owing to the need to supervise compliance with drinking or driving restrictions. The diminished privilege against self-incrimination of probationers has been recognized (92); and similar reasoning could apply to drivers placed under administrative sanctions. Potential Tort Liability of Law-Enforcement Agencies. The DDWS, CMD, and OTR devices are intended t o be i m ~ o s e din connection with restricted-driving programs; for that reason, these countermeasure programs might confer limited driving orivileges on persons whose driving
2.3.5
records otherwise would have triggered outright loss ( r e v o c a t i o n o r suspension) of t h e i r driving privileges. It has been suggested that governmental authorities that issue licenses to unfit drivers might be sued by persons whom t h o s e d r i v e r s i n j u r e ( H r i c k o 1979, Hricko 1976). However, judges (who assign drivers t o probation or ECR programs) a r e absolutelv immune from civil suit (93); and prosecutors (who assign drivers to pretrial diversion programs are also absolutely immune (94). Driver licensing authorities and other nonjudicial agencies may-in states where such suits against the s t a t e a r e permitted (National A s s o c i a t i o n of Attorneys General 1976, pp. 25-43)--be sued for negligently licensing incompetent drivers. There has so far been l i t t l e case law dealing with this issue, but i t appears under current law that unless a driver-licensing agency entirely failed to investigate a driver's qualifications, or ignored specific requirements imposed bv s t a t u t e (95), it probably would not be held liable. 2.3.6 Summary. Even in cases where a court or driving-licensing
authority has power to restrict an individual's driving privileges, and where a DDWS, CMD, o r OTR device has validly been placed on a vehicle, these devices have limited usefulness in supervising driving behavior. des i gned. The DDWS and CMD, owing to the limited ability of psychomotor tests to discriminate between impaired and unimpaired drivers, m a y "passv substantial numbers of legally impaired persons, and vice versa. The OTR, not only because of its inability t o identify vehicle operators but also owing to the great variety of owner-driver relationships in society, will rarelv establish with certainty that a specific individual violated his driving restrictions. Thus, these devices would not produce reliable evidence of guilt of DWI or violating license restrictions. This, however, is not a serious constraint on their use, since their primary purpose is not to generate proof of violations. In a d d i t i o n , t h e s e d e v i c e s , e s p e c i a l l y t h e O T R , have l i m i t e d These limitations a r e caused not only by normal mechanical malfunctions, but also by t h e Purposes for which t h e d e v i c e s w e r e
effectiveness in enforcing driving restrictions. The DDWS and CMD cannot determine with sufficient reliability whether a driver operated a vehicle while legally impaired; therefore the devices would be of limited use in a restricted driving program requiring the sanctioned driver to avoid T1alcohol-related offenses." The OTR is unable t o identify drivers and therefore it cannot discriminate between sanctioned and nonsanctioned ones, and thus between legitimate driving and violations of restrictions. However, the use of owner-driver "presumptionstTcould increase the utility of t h e OTR in s i t u a t i o n s w h e r e t h e s a n c t i o n e d d r i v e r owns t h e OTR-equipped vehicle. Finally, i t has been suggested that courts or licensing authorities could be held civilly liable for permitting drivers, who otherwise could have lost their driving privileges, to continue operating vehicles equipped with these countermeasure devices. This, however, is not a serious c o n s t r a i n t : judges and prosecutors a r e immune from suit; and a licensing authority probably would be held liable only when i t ignored s t a t u t o r y licensing criteria or failed to investigate a driver's competence.
2.4
Summary: Potential Law-Based Constraints on the DDWS, CMD, and
OTR It is envisioned drivers would be assigned to DDIVS, CMD, and OTR countermeasure programs as the result of probation and other sanctioning schemes. Under these programs the rights of drivers are limited; these restrictions on l i b e r t y will h a v e b e e n a c c e p t e d by d r i v e r s a s an alternative to jail or outright loss of driving privileges. Under these circumstances, neither the restrictions themselves nor the devices would be unlawful invasions of drivers' liberty or privacy interests. Assignment of drivers to DDWS, CMD, or O T R c o u n t e r m e a s u r e programs might be challenged as being in violation of the equal protection guarantee if indigent drivers are excluded for lack of funds, or if those who do not own vehicles a r e excluded. The entry of drivers who share ownership of vehicles, o r who d r i v e v e h i c l e s owned by o t h e r s , is c o n s t r a i n e d by due p r o c e s s requirements which prohibit the forced installation of devices on vehicles owned by unsanctioned persons.
The utility of DDWS, CMD, and OTR i n f o r m a t i o n in t r a f f i c - l a w enforcement is somewhat limited. The DDWS and CMD do not establish impairment; however, they do provide police officers with reasonable suspicion concerning the presence of an impaired driver, and could aid in detecting drinking-driving offenders. possibility that a violation had occurred, S i m i l a r l y , t h e OTR does not Although these countermeasure to establish that driving restrictions were violated, but it does indicate the devices a r e intended primarily t o supervise driving restrictions-not
prove guilt of DWI or driving in violation of restrictions--their utility in showing noncompliance with restrictions is, for the same reasons, also limited. The DDWS and CMD cannot, by themselves, reliably establish that an f'alcohol-related violation" had occurred; the OTR, at least when the sanctioned driver is not the sole owner of the OTR-equipped vehicle, cannot identify a violation with reasonable certainty. Thus, the following legal constraints on the implementation of these countermeasure devices have been identified: denying i n d i g e n t d r i v e r s a c c e s s t o c o u n t e r m e a s u r e programs, on account of a lack of funds, might violate the equal protection guarantee; compelling the installation of an OTR device on vehicles owned outright or jointly by others, without the owner's consent, would violate due process of law; where a driver supervised by the OTR shares the use of a v e h i c l e with others, a record showing the vehicle was driven during prohibited hours might not be sufficient t o establish a violation; and the unreliability (i.e., presence of false positives and false negatives) of psychomotor tests sharply limits their utility in proving the driver's alcohol impairment.
3.0
APPROACHES TO CONSTRAINT RESOLUTION
This section discusses the principal legal constraints to DDWS, CMD, and OTR implementation that were identified earlier in this volume. Methods of resolving or removing these constraints-the equal protection guarantee, the due process requirement, the evidential limitations of the OTR, and the evidential limitations of the DDWS and CMD-are here. 3.1 Resolving Equal Protection Constraints As stated earlier, when indigent driver.s (that is, those lacking funds) a r e denied entry into DDWS, CMD, or OTR programs on account of their being poor, violations of t h e constitutional equal protection guarantee might occur. There are several possible means of resolving this potential constraint. The first of these is to c r e a t e a pool of publicly owned vehicles, which could be lent a t nominal cost to drivers placed under time-or-day driving restrictions. The second resolution strategy involves waiving t h e c o s t s of supervising indigent drivers assigned t o these countermeasure programs. Finally, drivers without funds to Pay for an OTR program could be placed into ~ r o b a t i o n a r yprograms that do not involve supervision by mechanical devices. These include, for example, unsupervised restrictions or mandatory safety classes. Any of these strategies could avoid the potential legal challenges that might be raised w h e r e poor individuals suffer license revocation or suspension, while wealthier persons are allowed to retain limited driving privileges. 3.2 Resolving Due Process Constraints discussed
As stated earlier, there are manv persons who drive vehicles owned by others or who share the use of vehicles with others. Because a court can neither restrict an innocent party's use of his property, nor sanction a person for engaging in lawful behavior, it is constrained by due process of
law with respect to compelled installation of an OTR device on vehicles owned (solely or jointly) by persons other than the sanctioned driver. There exist three principal owner-driver relationships that give rise t o such constraints: first, where the driver is a nonowner and uses or rents vehicles owned bv others; second, where the sanctioned driver shares the ownership (and use) of a vehicle with others; and third, where the sanctioned driver is the sole owner of his vehicle, but permits others t o use his vehicle. Where the sanctioned driver operates vehicles owned by others (such as family members or employers) or rents vehicles, the vehicle owner's permission must be obtained before any device may be installed. In addition, the owner might be required, as a condition of the court or licensing authority restoring driving privileges to the sanctioned person, to take responsibility for the driver's use of that vehicle. For example, the owner might be asked to maintain records or file affadavits verifying the driver's compliance, and the submission of false records or affidavits could result in the imposition of penalties. As a practical matter, it is likely that some vehicle owners (especially commerical lessors) would not agree to assume the burdens of supervising restricted drivers. In the common situation where the sanctioned driver shares ownership and use of a v e h i c l e with a n o t h e r (such as a spouse), due process considerations parallel those of the nonowner-sanctioned driver case. The u n s a n c t i o n e d joint owner's permission--and possibly his assistance in supervision as well--would be necessary t o r e s t o r e l i m i t e d driving pr ivi leges.
A different issue is raised when a sanctioned driver is the sole owner
of a vehicle. In this case it is possible that some driving of that vehicle would not be his, but rather that of another person using the vehicle with his permission. Therefore, an OTR e n t r y could be a t t r i b u t a b l e t o someone other than the restricted driver. However, by permitting another person t o d r i v e , t h e s a n c t i o n e d driverlowner is ultimately responsible for the operation of that vehicle. This being the case, a court or licensing authority could restrict the driver not only in his own use of the vehicle, but in his permitting others
to use it.
Such restrictions, although somewhat drastic, a r e similar t o
p r o b a t i o n conditions that have been upheld as reasonable by courts. These conditions have included: prohibiting a convicted bookmaker from having a telephone in his residence (96); forbidding a person convicted of fortune-telling and abetting prostitution from having visitors in her home after dark (97); and prohibiting a person convicted of assaulting a female from employing women or permitting them to reside on his premises unless a male relative were present (98). However, such a restriction would bring about an anomalous result: other members of the owner's household would suffer driving restrictions if the driver retained limited privileges, but would not if he lost them entirely. Faced with such a In such a choice, a driver might choose to suffer revocation or suspension (and possibly drive anyhow and risk the consequences of doing so). situation alternative supervision methods (such as the keeping of logs) might be preferable to broad restrictions on all users of the vehicle. In sum, even in cases where a sanctioned driver uses other personsT vehicles, shares the use of a vehicle with others, or permits others to use his vehicle, appropriate consent by vehicle owners would enable the sanctioned driver to participate in a countermeasure program using the OTR devices. Whether owners would in f a c t consent is uncertain; however, that is a practical constraint, not a legal one.
3.3
Evidential Limitations of Records Generated by the OTR Because the OTR cannot identify vehicle operators, it is necessary
that OTR supervision programs involving the device provide that additional information be submitted by vehicle owners or sanctioned drivers. A s mentioned e a r l i e r , v e h i c l e owners could, as part of consenting to installation of an OTR device, be required to assist in supervising the s a n c t i o n e d driver. For example, fleet owners such as governmental agencies or utility companies might agree to assign sanctioned drivers only to OTR-equipped vehicles and to submit affidavits to the court or licensing authority, stating that they i n fact did so. In households, v e h i c l e owners might k e e p logs a c c o u n t i n g for all vehicle use by sanctioned and unsanctioned drivers alike. Finally, where the sanctioned
driver owns a vehicle, he might be required to account (for example, by keeping logs) for all occasions on which other drivers used the vehicle with his permission. In each of these cases, a person who submits false s t a t e m e n t s or who l a t e r fails or refuses to submit them, could be penalized by the court or licensing authority. Additionally, as discussed earlier, a court or licensing authority might be able, when the sanctioned driver is the sole vehicle owner, to apply owner/driver inferences, commonly referred to as lTpresumptions.H These presumptions permit the court or authority t o infer, from unexplained e n t r i e s s u g g e s t i n g t h a t unauthorized driving had occurred, that the sanctioned driver in fact violated his driving restrictions. It should be pointed out that the recordkeeping requirements discussed here might raise practical problems involving vehicle owners' willingness t o c o n s e n t , a s well a s policy-based objections relating to schemes requiring family members t o testify for or against one another ( 9 9 ) . Those considerations, however, lie beyond the scope of this volume.
3.4 Evidential Limits of the DDWS and CMD
Owing t o t h e limited correlation between psychomotor t e s t performance and actual driving impairment, a vehicle with an activated DDWS and CMD device can raise only a reasonable suspicion that the driver is impaired. This provides a police officer with justification t o stop t h e vehicle and investigate further; however, it does not by itself establish that the owner is legally impaired. For that reason the DDWS and CMD cannot by themselves establish that a driver committed an T1alcohol-relat violation." ed Even though the DEWS and CMD do not produce evidence sufficient to prove DWI violations, they would have significant utility in enforcing prohibitions of driving a f t e r drinking. Such conditions would forbid a sanctioned driver t o operate a vehicle a f t e r consuming any amount of a l c o h o l , w h e t h e r or n o t his B A C was above the legal standard for intoxication. A police officer who is aware of such a restriction (for example, by observing a notation to that effect on the driver's restricted license) and who notices the odor of intoxicants on a driver's breath,
would have sufficient evidence to report that a violation of restrictions had occurred. Imposing a "no driving after drinkingf1restriction on drivers assigned to DDWS or CMD countermeasure programs would allow f o r a d j u s t i n g of t h e DDWS and CMD d e v i c e s t o produce a very high false-positive rate; they could llfailll large numbers of drivers having B A Cs well below the legal standard for intoxication.
3.5
Summary None of the identified legal constraints to the DDWS, CMD, or OTR
devices is serious enough to render countermeasure programs using these devices legally unfeasible. However, there do exist constraints that limit the programs' overall utility in curbing unsafe driving behavior. First of all, equal protection and due process constraints govern the assignment of drivers to countermeasure programs. Denying d r i v e r s without funds and nonowners access to these programs might violate the Constitution; moreover, unsanctioned persons who own vehicles cannot be forced to install devices on those vehicles. Secondly, none of the three devices is capable of producing reliable evidence that could be used in DWI or violation-of-driving restrictions trials. This is not by itself a serious constraint; however, these same characteristics limit the effectiveness of the DDTVS, CMD, and OTR in supervising compliance with driving restrictions. Therefore, i n some cases, OTR supervision programs might require burdensome recordkeeping might encounter practical and policy-based constraints. Similarly, the
schemes to effectively monitor driver compliance, and these schemes DDWS and CMD cannot indicate DWI violations with certainty; however, by raising a reasonable suspicion of DWI they do increase the likelihood that an impaired d r i v e r would be d e t e c t e d by t h e police. More importantly, the DDWS and CMD have significant protential value in enforcing llno driving after drivingt1 restrictions. It must be emphasized that throughout this volume the legal feasibility of these devices was analyzed on the assumption that they would be imposed on sanctioned drivers only. Any attempt to impose DDWS, CMD, and OTR programs on the general driving public would encounter serious
legal-as
well as practical and political-constraints.
4.0
CONCLUSIONS AND RECOMMENDATIONS
v
T h e DDWS, CMD, a n d OTR c o u n t e r m e a s u r e s a r e n e i t h e r unconstitutional nor unreasonable means of enforcing driving restrictions, imposed on convicted traffic-law violators as conditions of probation, pretrial diversion, ECR, or restricted-license schemes. There exist no constitutional barriers to imposing such restrictions on driving; nor is the employment of the devices themselves unconstitutional. However, the context in which their installation is mandated may give rise to legal issues. First of all, the exclusion of drivers from countermeasure programs, because of their inability to pay costs of their supervision, might violate the constitutional guarantee of equal protection of laws. However, there exist a number of alternatives by which this constraint may be avoided. Secondly, attempts to compel the installation of a device on a vehicle owned by someone other than the sanctioned driver, would violate the constitutional due process of law requirement. When, in the case of the OTR, the restricted driver operates another person's vehicle, there arises another significant law-based constraint. This stems from the inability of OTR to identify who operated the v e h i c l e s t any p a r t i c u l a r t i m e . Evidential constraints associated with the OTR device can be overcome when the driver is the sole vehicle owner by applying owner-driver inferences; and in other cases constraints can be resolved by keeping appropriate records. However, practical and policy-based constraints might also be encountered with respect to recordkeeping. The DDWS and CMD c o u n t e r m e a s u r e d e v i c e s a r e i n c a p a b l e by themselves of proving t h a t the driver is impaired, although both devices do provide a police officer with reasonable grounds to stop a vehicle and investigate. That investigation could, in turn, lead to a DWI arrest. On the other hand, because the OTR cannot identify vehicle operators, its utility in establishing violations of driving restrictions is limited. With
respect to the OTR, the recordkeeping requirements referred t o earlier would increase the ability of this device to monitor compliance with restrictions. Apart from identifying impaired drivers, the DDWS and CMD would be able to more effectively monitor compliance with restrictions that prohibit driving after drinking. Thus, we c o n c l u d e t h a t D D W S , CMD, and OTR countermeasure programs are legally feasible means of monitoring the driving behavior of t r a f f i c offenders placed under driving restrictions; however, their overall utility is to some extent limited. It is emphasized t h a t this volume does not address the public acceptance or feasibility of these countermeasure programs, since these are the subjects of studies of NHTSA and by other NHTSA contractors.
BIBLIOGRAPHY Beitel, G.A.; Sharp, M.C.; and Glanz, W.D. 1975. Probability of arrest while driving under the influence of alcohol. Journal of S t u d i e s on Alcohol 36(1):109-16. Borkenstein, R.F. 1975. Problems of enforcement, adjudication, and sanctioning. In Alcohol, drugs and traffic safety, eds. S. Israelstam and S. L a m b e r t , pp. 655-62. P r o c e e d i n g s of t h e Sixth International Conference on Alcohol, Drugs and Traffic Safety, 8-13 September 1974, a t Toronto, Ontario. Toronto: Addiction Research Foundation of Ontario. Brown, V.R.; Jindal, G.R.; and Jo, E. 1973. Solid-state breath alcohol vehicle interlock system. Paper presented a t Society of Automotive Engineers International Automotive Engineering Congress, 8-12 January 1973, at Detroit, Michigan. SAE paper 730097. Cleary, E.W., ed. 1972. McCormickTs handbook of the law of evidence. 2d ed. St. Paul: West Publishing Company. Comment, Marital Privilege in Washington: Spouse Testimony and Marital Communications, 54 WASH. L. REV. 65 (1978). Coppin, R.S., and VanOldenbeek, G. 1965. Driving under suspension and r e v o c a t i o n : A study of suspended and revoked drivers classified as negligent operators. Sacramento: S t a t e of California, Department of Motor Vehicles. Davis, P.W.; Sussman', E.D.; Warner, A.; and Leavitt, W.Z. 1971. Alcohol safety interlock systems: A status report. Cambridge, Massachusetts: U.S. Department of Transportation, Transportation Systems Center. English, J.W. 1977. Hardship licensing. In Traffic Laws Commentary 6(3). Washington, D.C.: National Committee on Uniform Traffic Laws and Ordinances. H r i c k o , A.R. 1976. M o t o r v e h i c l e a d m i n i s t r a t o r s t p o t e n t i a l liability-licensing of alcoholics. Federation of Insurance Counsel Quarterly 26 ( 2 ) :75-86. Hricko, A.R. 1979. Piercing the driver license veil. Federation of Insurance Counsel forthcoming. Publication by
Iannini, A . A . 1976. Critical coordination tester. Application for letters patent. Washington, D.C.: U.S. Department of Transportation.
Joscelyn, K.B., and Jones, R.K. 1972. A systems analysis of t h e t r a f f i c l a w s y s t e m . S u m m a r y volume. N a t i o n a l Highway Traffic Safety Administration report DOT-HS-800-640. K a e s t e r , N., and Speight, L. 1974. Oregon study of driver license suspensions. Salem: Oregon Department of T r a n s p o r t a t i o n , Mot or Vehicles Division.
Killinger, G.G.; Kerper, H.B.; and Cromwell, P.F., Jr. 1976. Probation and parole in t h e criminal justice system. St. Paul: West Publishing Company. Little, J.W.; Young, G.; and Selk, S. 1974. Constitutional protections of convicted DWI offenders selected t o receive special sanctions--alcohol c o u n t e r m e a s u r e s l i t e r a t u r e review. Final report. National Highway Traffic Safety Administration report DOT-HS-801-231. Moore, W.S.; Imperial, J.F.; Tunstall, J.; Wagner, M.H.; and Hurst, P.M. 1976. Systems analysis of alcohol c o u n t e r m e a s u r e s . F i n a l r e p o r t . National Highway Traffic Safety Administration report DOT-HS-801-792. National Association of Attorneys General. 1976. Sovereign immunity: T h e l i a b i l i t y of g o v e r n m e n t and i t s officials. Raleigh: National Association of Attorneys General, Committee on the Office of Attorney General. Palmer. 5.4. 19 7 6. Evaluation and descriotion of ASAP iudicial svstems. volume 'v: Phoenix. Arizona case studv. ~ h a reoort. Nitional ~ i ~ t h w a v l Traffic Safety ~drninistrationreport DOT-HS-803-472.
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Ruschmann, P.A.; Joscelyn, K.B.; Greyson, M.; and Carroll, H.O. 1979. An analysis of the potential legal constraints on the use of advanced alcohol-testing technology. Publication by National Highway T r a f f i c Safety Administration forthcoming. Tennant, J.A. 1974. -4 critical tracking task (CTT) as a countermeasure for intoxicated drivers. In FISITA. XVe Congress Internationale, PP. 48-57. Paris: Societe des Ingenieurs de IrAutomobile. Tennant, J.A., and Thompson, R.R. 1973. A critical tracking task as an alcohol interlock system. Paper presented a t Society of Automotive Engineers International Automotive Engineering Congress and Exposition, 8-12 January 1973, at Detroit, Michigan. SAE paper 730095.
Westen and Westin, A Constitutional L a w of Remedies for Broken Plea Bargains, 66 CAL. L. REV. 471 (1978).
FOOTNOTES Both "pretrial diversionl1 and "earned charge reductionll are generic terms that describe programs used by many courts as alternatives t o traditional process of...