LEGISLATORS HOPE TO PUT DROWSY DRIVERS TO REST

Volume 29, Issue 511 March 17, 2008

Matthew Gever

For years, lawmakers have sought to reduce driving-related injuries and fatalities by making roadways safer, creating “graduated” licenses for youth and establishing penalties for driving while drunk or distracted (by cell phones, etc.). Now, some states are taking aim at drowsy driving.

Of the roughly 100,000 fatigue-related crashes that occur each year, 1,500 result in death and 71,000 produce injuries, according to the National Highway Traffic Safety Administration (NHTSA). The typical sleep-related crash is likely to be serious, involve a single vehicle that leaves the roadway and occur on a high-speed road. Those most at risk are young people, shift workers and people with untreated sleep disorders.

Legislators are taking notice. “This is both a public safety issue and a public health concern that cannot be addressed simply by acknowledging the problem,” said Massachusetts Senator Richard Moore. “We have to educate people about it and give our law enforcement officials the tools to address it.”

To that end, Senator Moore recently introduced “Rob’s Law” (SB 2072), named for Robert Raneri, an Army major killed in 2002 by a driver who admitted to being awake for 24 consecutive hours prior to the wreck. Among other things, the bill would create sanctions for operating while sleep deprived (including making falling asleep while driving a crime), add a component on fatigue to driver education programs and train police officers in spotting drowsy drivers.

A commission created under the Moore bill would recommend measures that police could use to determine wakefulness. Officers who suspect a driver is overly sleepy could ask him or her to submit to “reasonable tests…as established by regulation” to determine fatigue. Those who fail the tests could be placed in protective custody and taken home or to a police station. Protective custody would not be treated as an arrest or entered into a criminal record.

A Sticky Wicket

One of the stickiest areas in driver fatigue laws is enforcement, or how prosecutors could prove that drivers were sleep deprived. Unlike alcohol or drugs, a lack of sleep does not leave trace elements in the body. As a result, some say that any convictions for crimes related to driver fatigue might require witness testimony about the defendant’s lack of sleep in the period preceding the accident, which is a less exacting standard than a blood test.

But even if proof is difficult to provide, creating criminal charges for driving while fatigued may get the public to pay attention, lawmakers say. “I believe that punitive measures will help people realize the seriousness of getting behind the wheel of a car when they are not alert,” said Michigan Representative Lorence Wenke. He introduced a bill (HB 4332) that would allow prosecutors to charge a driver with vehicular homicide if the driver caused a fatal crash while fatigued. A driver would be considered fatigued if he or she had gone for 24 hours or more without sleep. The bill does not spell out how prosecutors could prove this.

In New York, Assemblyman John Bing likened the problem of fatigued driving to drunk driving. “I think the statistics are clearly there,” he said. After a constituent was killed by a driver who fell asleep at the wheel, Assemblyman Bing introduced AB1234. The bill would establish criminal offenses ranging from misdemeanors to felonies, for serious physical injuries or deaths caused by driver fatigue. The bill does not spell out how prosecutors could prove that a person had driven while sleep-deprived, which is defined as fallen asleep while driving or gone without sleep for 24 hours or more. Empire State legislators also are considering AB 970, which would require holders of commercial drivers’ licenses to be tested for sleep apnea.

So far, New Jersey is the only state with a drowsy driving law, having passed “Maggie’s Law” (AB 1347) in 2003. The law specifically amends the state’s vehicular homicide code to include drivers who are “knowingly fatigued”—awake for 24 or more consecutive hours. The law was named after Maggie McDonnell, a 19-year old college student killed by a driver who later admitted to being awake for 30 consecutive hours. “A sleep-deprived driver is just as dangerous as someone who is impaired by alcohol or drugs,” said former Garden State Assemblyman Stephen Altamuro.

In its most recent Sleep in America Poll, the National Sleep Foundation found that 32 percent of the 989 Americans surveyed admitted to driving while drowsy at least once per month during the past year. Thirty-six percent said they had fallen asleep at the wheel at least once while two percent of respondents said they were involved in a car accident as a result of drowsiness in the past year.

A NHTSA publication: (www.nhtsa.dot.gov/people/injury/drowsy_driving1/Drowsy.html) lists some countermeasures that states can take to prevent drowsy driving.

Other resources on drowsy driving are available at NCSL’s website: http://www.ncsl.org/programs/transportation/drowsydriving.htm