TEXTING VS. DRINKING WHILE DRIVING: LOL OR SOL?

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On November 8, 2014, University of Oregon linebacker Joe Walker returned a fumble one hundred (100) yards against the University of Utah for a touchdown.[1] Both football fans and the National Highway Traffic Safety Administration (NHTSA) agree—this is a long distance. A NHTSA report states that “sending or receiving a text takes a driver’s eyes from the road for an average of 4.6 seconds, the equivalent—when traveling at 55 mph—of driving the length of an entire football field while blindfolded.”[2] Despite the inherent dangers of intoxicated driving, NHTSA alleges that texting while driving makes teenage drivers twenty-three (23) times more likely to crash.[3]

Thirty-nine (39) states have banned texting while driving, which the Harvard Center for Risk Analysis Study attributes to over 3,000 deaths and 33,000 injuries per year.[4] Car and Driver Magazine tested individuals’ reaction times on a closed road course while sober, at the legal intoxication limit of .08, reading a text, and sending a text.[5] A red light in the vehicle indicated when the driver should brake while driving at speeds of 35 mph and 70 mph. Each trial tested the driver’s reaction to the signal five times, with the slowest reaction time (the amount of time between the activation of the light and the driver hitting the brakes) dropped from consideration and averaged the remaining four trials’ results.[6] The results under each condition (intoxicated, reading and writing a text) are displayed below with their sober, undistracted performance being the baseline.  The attribution for the “Worst Results” chart below is noted in the following footnote.[7]

Ultimately, texting had the most substantial, negative effect on the test drivers. While drunken or drugged driving has been the focal point of major regulations, texting has quickly become a hazard to traffic safety. For instance, intoxicated driving fatalities have decreased approximately 25% between 2002 and 2011, whereas texting fatalities have increased significantly.[8] Some studies equate texting’s effect while driving to that of a driver after consuming four beers.[9]

Similar to how intoxicated driving may be prevented by using designated drivers, texting related incidents may be prevented by responding after a safe arrival or using hands-free communication devices such as Bluetooth. In the future, it can be expected that more states will provide more stringent texting regulations. For instance, in New Jersey, cell phone use while driving is “unlawful except when the telephone is a hands-free wireless telephone” and is enforced by fines up to $800 for repeat violators.[10] Of course, state laws vary on this subject, so be aware of the applicable penalties and relevant repercussions in your state.

About the Author: Steven Oberman has been licensed in Tennessee since 1980, and successfully defended over 2,000 DUI defendants.  Among the many honors bestowed upon him, Steve served as Dean of the National College for DUI Defense, Inc. and currently serves as chair of the National Association of Criminal Defense Lawyers DUI Committee.  Steve was the first lawyer in Tennessee to be certified as a DUI Defense Specialist by the Tennessee Commission on Continuing Legal Education and Specialization and the NCDD.

He is the author of DUI: The Crimes & Consequences in Tennessee, updated annually since 1991 (Thomson-West), and co-author with Lawrence Taylor of the national treatise, Drunk Driving Defense, 7th edition (Wolters Kluwer/Aspen).  Steve has served as an adjunct professor at the University of Tennessee Law School since 1993 and has received a number of prestigious awards for his faculty contributions.  He is a popular international speaker, having spoken at legal seminars in 23 states, the District of Columbia and three foreign countries.

You may contact Steve through his website at www.tndui.com or by telephone at (865) 249-7200.

The author would also like to recognize and thank Matt Wayne, a second year law student at the University of Tennessee College of Law, for his research and editing contributions of this article.

[1] Utah celebrates TD too early, ESPN, http://espn.go.com/college-football/story/_/id/11845079/oregon-ducks-return-fumble-100-yards-utah-utes.

[2] Alcohol, Problems and Solutions, http://www2.potsdam.edu/alcohol/files/Driving-while-Texting-Six-Times-More-Dangerous-than-Driving-while-Drunk.html – .VG4DYYfleGN (emphasis added).

[3] Id.

[4] Todd Wilms, It Is Time For A ‘Parental Control, No Texting While Driving’ Phone, Forbes Business (Sept. 18, 2012).

[5] See Phil LeBeau, Texting And Driving Worse Than Drinking and Driving, CNBC (June 25, 2009), http://www.cnbc.com/id/31545004#; see also Michael Austin, Texting While Driving: How Dangerous is it?, Car and Driver Magazine, http://www.caranddriver.com/features/texting-while-driving-how-dangerous-is-it.

[6] Id.

[7] Id. (There were two test drivers that are represented by the brown and white vehicles labeled “Alterman” and “Brown” respectively.)

[8] State Alcohol-Impaired Driving Estimates, U.S. Department of Transportation, available at http://www-nrd.nhtsa.dot.gov/Pubs/811776.pdf.

[9] Strayer, Drews, Couch, A Comparison of the Cell Phone Driver and the Drunk Driver, University of Utah (2006), available at http://www.distraction.gov/download/research-pdf/Comparison-of-CellPhone-Driver-Drunk-Driver.pdf.

[10] Jacob Masters, Texting While Driving Vs. Drunk Driving: Which Is More Dangerous?, Brain Injury Society (Oct. 27, 2013), http://www.bisociety.org/texting-while-driving-vs-drunk-driving-which-is-more-dangerous/ (“First time offenders will face a fine of at least $200. . . . a second offense will increase to at least $400 and drivers who are caught a third time will face a fine of at least $600, a possible 90-day suspension of their driver’s license and will be assessed (3) three motor vehicle penalty points.”). N.J. Stat. Ann. § 39:4-97.3 (West); http://www.state.nj.us/mvc/About/safety_cellphone.htm.

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Poll: Should Minnesota Lower the Legal Drinking Age?

In 1984 President Reagan signed the Uniform Drinking Age Act, requiring all states to raise the legal drinking age to 21 or face reductions in their federal highway funding. Since 1995, all 50 states and the District of Columbia have complied.

But now, Minnesota lawmakers are considering legislation that would roll back the state’s legal drinking age to 18. State Representative Phyllis Kahn has proposed legislation that would allow individuals over 18 to be served alcohol in bars and restaurants. The bill would still ban retail sales of alcohol for people under 21.

Kahn—whose district area includes the University of Minnesota—argues that serving alcohol to young adults in public would teach them to drink responsibly and reduce binge drinking. And she notes that the measure would be good for the economy as it would likely increase sales in bars and restaurants.

Supporters claim that many 18- to 20-year-olds already drink, especially on college campuses, and making alcohol legally available to this group could decrease the “forbidden fruit” allure of drinking.

But critics point to studies linking a lower drinking age to increased traffic crashes and to research that shows teens and young adults respond more adversely to alcohol than older adults. In addition, MADD and the National Traffic Highway Administration (NHTSA) estimate that raising the drinking age to 21 nationally has saved approximately 900 lives per year.

If the bill is approved by the Minnesota legislature it will take effect in August.

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A Case for Abolishing the 21 Drinking Age

Open the newspaper or turn on your local news and you’re probably going to hear a story about a drunk driving accident, alcohol related assault or alcohol poisoning. This story will most likely involve an individual between the ages of 18 and 24. If you were to continue to explore this issue you would find that among 18 to 24 year olds the rates of binge drinking and DWI’s have been increasing since 1998. Each year there are over 696,000 alcohol related assaults, 97,000 alcohol related sexual assaults and 1700 alcohol related deaths, just among the student population of the United States (Hingson 2000). In a survey, over 19% of college students met the criteria for alcohol abuse or dependence (American 2000). All these statistics beg the question of why our current alcohol consumption laws are failing. Unfortunately, this is where our politicians step in and speak of the “changing values of our youth”, “corruption by the media” and scapegoat every other social factor possible, while ignoring the fact that it is our drinking laws that are at the root of this epidemic.

Most people would be surprised to learn that the 21 year age limit is a relatively new law in the United States. Until 1979, it was legal in many states, including New York, for a person to consume alcohol at the age of 18. It wasn’t until the Congressional Act of 1984 where Federal Highway funds were withheld from states with a lower drinking age that we saw a national shift up to the 21 drinking age (Barbanel 1984). Unfortunately, while this was undoubtedly pursued with good intentions, as is often the case, the long term ramifications of this congressional bill may have done more harm than good.

Every person can look back on their college experience and remember a time when they tried something new and exciting. This is the whole point of college; to mature socially as well as academically. For many college students, this exploration involves the consumption of alcohol. However, due to the nation’s current fixation on litigation, we see colleges fear being held liable for alcohol poisoning incidents on their campuses. We see underage students scared about the consequences of getting caught consuming alcohol and the resultant stains upon their academic or legal record. With this fear, the consumption of alcohol has moved from social drinking at a local pub or restaurant to binge drinking behind the locked doors of a dorm room. It’s important to understand that these underage students binge drink not because there is an excess in the availability of alcohol but because there is a scarcity. Unsure of whether they will be able to order a drink at their next social event, students turn to “pre-gaming,” where they consume excessive amounts of alcohol before going out to sustain a buzz throughout the night. This binge drinking overloads the students’ systems and is far more dangerous than if the students had consumed the same quantity of alcohol over the course of a few hours or an entire evening.

In 1919, when Congress prohibited the manufacture, sale, or purchase of alcohol there was an increase in the consumption of alcohol, a decrease in tax revenue and an increase in illicit mob activity in most cities around the country (Miron 1999). The decision proved so ineffective and detrimental to society that it was repealed in a constitutional amendment only 14 years later. The reason behind the failure of prohibition is simple; individuals must be able to replace one leisure activity with another. With complete prohibition, the infeasibility of enforcement and lack of substitutes doomed the bill from the start.

The situation is analogous to the 21 year old drinking age. Colleges cannot effectively enforce a drinking law that splits their student population into two sectors, those above 21 and those below 21, when when both of these age groups share not only a campus but interact regularly and develop close relationships over time. These circumstances give students under 21 a myriad of ways to circumvent the law through their connections with older students, whether it is to buy liquor from them, borrow their ID’s or buy fake ID’s themselves. Instead, colleges should focus on helping students switch from binge drinking to responsible drinking by reducing the penalties for responsible drinking. However, this is currently impossible since universities cannot condone an illegal action. Bound by the 21 drinking age, universities are forced to condemn all underage drinking and preach responsible overage alcohol consumption to disinterested freshmen. University presidents must walk an extremely fine line between creating safety mechanisms for binge drinking and being seen as accepting contained underage drinking.

In order to understand why continuing to enforce the 21 drinking age is a losing battle, it is important to put the student’s situation and mindset in proper perspective. College is an extremely stressful time in a student’s life. Compared to high school, college students face a much more intense academic course load with their performance clearly impacting their future. College students are also in a new social environment; apart from their old friends and facing the pressure to fit in and develop a new social base. They are relatively unsupervised compared to their previous home environment. There are no parents checking to see if your homework is done, no prepared meals, cleaned rooms, or monthly allowance. While facing all these pressures, students are then introduced to the previously prohibited recreational activity of drinking. This situation is akin to moving an untrained dog from the kennel to your living room while on vacation with only the maid to keep watch. Is it really any surprise that we see irresponsible conduct?

Given these issues, we should be focusing on factors that can limit the excessive consumption of alcohol. Peer and family influences have been scientifically proven to affect young adults’ consumption of alcohol. Peer influence can be direct through offers of drinks by fellow students or indirect through acceptance of binge drinking because everyone participates (Jackson 1999). Without exposure to responsible social drinking prior to turning 21, there seems to be a sort of “Animal House” expectation of alcohol consumption in college. Mainly that the only enjoyable way to consume alcohol at college is to drink until you either “blackout” (lose memory of the night’s events) or become unconscious. A second factor influencing the consumption of alcohol is the influence of a teenager’s family. Young people model their consumption of alcohol on their parents’ patterns of consumption. This imitation extends to the quantity, frequency, attitudes and expectancies of drinking (White 2000). However, under current state laws, young adults cannot legally experience responsible drinking at a local restaurant or social function with their parents. Instead of reinforcing positive drinking habits, young adults are told that they have to wait to consume alcohol until college, where they are unsupervised and inexperienced.

Studies of other countries and regions with lower drinking ages have provided information on the type of culture that can be cultivated with proper instruction on drinking responsibly. In Canada the drinking age is 19, yet their student binge drinking rate is 6% lower for men and 10% lower for women than the United States (Weschler 2000). While total alcohol consumption is higher, the culture of drinking tends to focus on moderation rather than arbitrary age restrictions. A plausible reason for this is that the consumption of alcohol is nothing new when these students enter college; they already have established drinking habits from living at home and the social expectations of excessive drinking are reduced (Weschler 2000).

Contrary to popular belief, proposals to re-evaluate the current drinking age aren’t just being offered by college students looking to cheat the system. These proposals are being put forth by authority figures that have firsthand knowledge of the harmful effects of the current system. The Amethyst Initiative is a coalition of college presidents who recognize the failures of the 21 age bar and believe this actually encourages binge drinking. Current signatories include the presidents of Duke, Dartmouth, John Hopkins and over 100 other universities (Rethink 2008). These university presidents are committed to starting a debate on the right consumption policy. It is time for the American people to follow their example and start a dispassionate debate and focus on reducing the incentives for current college students to binge drink.
Bibliography
American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. 4th ed.,text rev. Washington: American Psychiatric Assoc., 2000. Print.

Barbanel, Josh. “Raising New York Drinking Age to 21.” New York Times 28 May 1984, late ed., sec. B: 22. Print.

Hingson, R. “Magnitude of Alcohol-related Mortality and Morbidity among U.S. College Students Ages 18–24.” Annual Review of Public Health 26 (2005): 259-79. Web. 1 Nov. 2012.

Jackson, K. M. “Social and Psychological Influences on Emerging Adult Drinking Behavior.” National Center for Biotechnology Information. U.S. National Library of Medicine, 2005. Web. 1 Nov. 2012.

Miron, Jeffrey. “The Effect of Alcohol Prohibition on Alcohol Consumption.” NBER. National Bureau of Economic Research, May 1999. Web. 1 Nov. 2012.

Miron, Jeffrey. “Alcohol Prohibition.” Economic History Services. American Law and Economics Review, 1999. Web. 1 Nov. 2012.

“Rethink the Drinking Age.” Welcome to the Amethyst Initiative. Amethyst Initiative, 2008. Web. 1 Nov. 2012.

Wechsler, Henry, JE Lee, and M. Kuo. “College Binge Drinking in the 1990s: A Continuing Problem.” Journal of American College Health 48.10 (2000): 199-210. Web. 1 Nov. 2012.

White, H. R. “Parental Modeling and Parenting Behavior Effects on Offspring Alcohol and Cigarette Use.” National Center for Biotechnology Information. U.S. National Library of Medicine, 2000. Web. 1 Nov. 2012.

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Study: Binge Drinking Affects Young Adults’ Immune Systems

Think the worst thing you’ll get from a night of hard drinking is a hangover? Think again.

New research published in the scientific journal Alcohol indicates that binge drinking negatively impacts the immune system of young adults for hours after the last sip. Researchers determined that while the body’s immune system ramps up when people are most intoxicated, two to five hours later the immune system is less active than when a person is sober.

The findings show a double health impact of binge drinking, which makes individuals more prone to serious accidents and traumatic injuries while also hindering the body’s ability to recover from those injuries. The research supports other published studies linking intoxication to issues like delays in healing, increased blood loss, and susceptibility to infections. The age of the research subjects is also significant as many young adults believe they are less likely to experience health risks from excessive drinking compared to older individuals.

According to the Centers for Disease Control and Prevention (CDC), binge drinking involves consuming four or more alcohol beverages in a two hour period, usually resulting in a BAC higher than the legal driving limit of 0.08. The CDC estimates that binge drinking accounts for more than half the alcohol consumed by adults in the U.S., and one in six young adults partake in binge drinking four times a month on average.

The researchers hope their findings will provide more support for efforts to curb binge drinking. Do you think the results of this study could help reduce excessive drinking among young adults?

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DUI after Drinking Vanilla Extract

A New York woman has been arrested for drunk driving after drinking, wait for it, vanilla extract!

Carolyn Kesel, 46, of Seneca Falls, New York, was driving erratically in a Walmart parking lot on January 5th when she was pulled over. Kesel told police that she had gotten lost on her way home after drinking two bottles of vanilla extract.

Police said the extract had an alcohol content of 41 percent. This led to a blood alcohol content of 0.26 percent when she was later breathalyzed.

This is new to me, but apparently pure extracts commonly used in baking can have alcohol contents as high as 89 percent. Imitation extracts can have alcohol contents as high as 17 percent.

Although the extract in Kesel’s case did, in fact, contain alcohol causing a high BAC, a person need not consume alcohol to be charged with a DUI. In California, a person can be charged with a DUI if their “physical or mental abilities are impaired to such a degree that [they] no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.”

Therefore, even if the extract had not contained any alcohol, which before today I didn’t think it did, she could still be charged with a DUI if she could not drive as a reasonable, sober person would.

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The Holiday Season, Drinking and Driving, Tolerance and the Mellanby Effect, Pt. 1

Over Thanksgiving weekend the California Highway Patrol arrested 60 people in San Diego County for suspicion of DUI. 903 drivers were arrested for DUI statewide. Earlier in the evening, before heading out, how many of those people arrested for DUI planned on getting arrested that evening?

This post will continue with two assumptions about people arrested for DUI. First, that no one sets out for their evening plans anticipating getting a DUI- DUIs are a crime of ignorance. Some people maintain that DUI drivers are trying to get away with it, and this may be so. But we will maintain that the majority of people arrested for drinking and driving never intended to be in the condition they were in. The second assumption is that even drivers that get a DUI are still against drunk driving. The majority of my clients express feelings of guilt before any other emotion. Of course, feelings of guilt is separate from being found guilty in a court of law.

But, even with these assumptions, most people have a backup plan earlier in the evening, or at least the ability not to drive. That is, getting a cab, calling a friend for a ride or finding an alternative place to sleep for the evening. One of the reasons why people still drive is because they "feel fine." After reviewing thousands of police reports working for the San Diego City Attorney's Office, most defendants appear to be quite honest in their self-assessment (it's how many drinks consumed that may be less accurate).

The state's experts often claim that this is because alcohol impairs mental ability first, and physical ability second. So even if they aren't stumbling, drinkers can't process information the same and may not be able to recognize that they are impaired. Or, the state's expert will state that alcohol increases risk taking behavior. So even a drinker may recognize that he or she is impaired, but drive anyway. However, another answer may have to do with a type of tolerance.

Tolerance, in its most common understanding, is really acquired tolerance. At the risk of being redundant, acquired tolerance is tolerance that is acquired over time by repeated exposure to the same drug, stimulant or substance. A person that regularly consumes alcoholic beverages acquires a tolerance to alcohol. The effect of acquired tolerance is that the drinker must consume a greater amount of alcohol in order to achieve the desired effect.

Tolerance, from a jury trial strategy perspective, is a mixed benefit. On one hand, tolerance may assist the jury in understanding why the defendant was not under the influence for purposes of driving (VC 23152(a)) regardless of the BAC, because she has acquired tolerance- the social aspect of her job is a necessity for her drug sales position, for instance. On the other hand, the jury may just as likely envision the defendant drinking and driving every weekend.

What the state's expert conveniently leaves out, is what's called acute tolerance. Acute tolerance is tolerance that is displayed over a single exposure to a drug. For alcohol, this is during a single night of drinking. As soon as the brain is exposed to a drug, compensatory changes immediately take effect. This means that with the first drink, the brain is initially exposed to alcohol and the effect is more significant. The more the brain is exposed to alcohol, the more effective the brain's compensatory changes. This means the effect of alcohol is greater at the beginning of a night of drinking than towards the end.

This was first discovered in 1919 by researcher E. Mellanby and is called the Mellanby Effect. In the next blog post, the Mellanby Effect will be discussed in greater detail, specifically in relation to alcohol and a night of drinking.

Until the next post, always be mindful of the effects of alcohol, and trust your friends over your own self-assessment. Remember, alcohol is a tricky drug and even if you've been drinking for a number of years, one mistake can lead to a lifetime of regret.

During the Holiday Season, if you find yourself in need of an experienced, knowledgeable DUI defense attorney, call (619) 259-0384 (0DUI). Maybe call the night before a big, celebratory evening, as opposed to the morning after. It may be the best holiday gift you receive all season.

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Cobb County and Kennesaw cracking down on underage drinking

February 11th, 2011 Richard Blevins Posted in Current Events |

The City of Kennesaw, Georgia and other local law enforcement agencies located in Cobb County are cracking down on underage drinking.   In 2010, 4,197 citations or arrests in Cobb County were reported for DUI and minor in possession of alcohol. As reported in the Marietta Daily Journal.  Our office has experienced this increase through the representation of numerous individuals charged with DUI or minor in possession of alcohol.  In Georgia minor in possession of alcohol carries a maximum sentence of 6 months in jail and/or a $300.00 fine.  You can be eligible for a diversion program or a conditional discharge.  Our law firm has the experience to assist you with these charges to avoid a conviction and work to get your arrest record expunged.  Written by Richard N. Blevins, Jr., a former Cobb County prosecutor and former police officer, visit my website.

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Binge Drinking Facts and Statistics

“Binge drinking” is thought to be quite common among the youth and college students. But contrary to this notion, the researches and the surveys have proven that the proportion of the binge drinkers in the colleges and universities has greatly reduced and it is still coming towards decline. It is the need of the hour, not to exaggerate the issue, but to work for solving it.

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