Police Liability for Failure to Arrest Intoxicated Drivers, Research Paper Example

Abstract

This paper addresses the background on police civil liability for failing to arrest intoxicated drivers. The paper examines the potential legal consequences of police officers who fail to carry out their duty. The paper is divided into three distinct sections: (1) Deals with the legal stance on police dealing with intoxicated drivers (2) Findings from research that evidences areas of concern in police failures to make proper arrests and (3) A summary of the key points considering areas of potential improvement.

Introduction

The Police have different legal responsibilities that range from both Federal and State Laws. These carrying sanctions of a civil, criminal or administrative nature. Legislation forbids being intoxicated whilst driving and the police have powers of arrest in these cases. If the police suspect a person of being over the limit they have the right to ask the person to take a test. This may be a blood alcohol test or use of a breath-analyser. Most states adhere to this policy but require the officers to have reasonable cause. This distinct from random breath testing that takes place in Europe and Australia.

There are a variety of alternative options open to the Police Officer that he can use at his discretion but these can pose certain dangers for the Police Department. This can be where the Police department has issued a policy not to make arrests and the released drunk driver then commits a crime. This can expose the Police Department to civil liability and the risk of being sued. Most of these concerns originated from the state of Massachusetts where the Supreme Court became aware that the police had a special relationship with a drunk driver who they failed to take into custody that later injured another motorist.

It is possible for Police Officers to abuse their powers by not following the strict code of arrest and adopting discretionary powers. These are often judgement calls but the Officer needs to carefully consider the civil liability in making discretionary decisions.

The Legal Stance

Dealing with the enforcement of drunk drivers can lead to alternate forms other than that of arrest. These are often left to the discretion of the police officer and his / her assessment of the circumstances. Such options may include the following type of actions:-

• Issuing the driver with a caution or warning
• Stopping the intoxicated driver from driving and getting a sober driver to assume the wheel
• Allowing the intoxicated driver to get someone to pick him up
• Giving the intoxicated driver a ride home
• Following the driver home to ensure he gets home safely
• Confiscating the keys of the vehicle until the driver has sobered up
• Getting the driver to take alternate transport like a taxi or a bus.

One issue about mandating arrests is that it can discourage police officers from making suspect arrests on the grounds that it will prevent them from attending to more pressing and important duties.

Police Officers often have difficulties in assessing sobriety, particularly in the determination of modest alcohol levels and those over the limit. People differ enormously in their capacity to respond to alcohol. The Police Officers essentially use their powers of observation in terms of looking for impairment. The law developed a standard set of sobriety tests in the 1980’s and these were:

• Horizontal Gaze Test
• Walk and turn and then stand on one leg;
• Horizontal Gaze Nystagmus – Examination of the drivers eyes for jerkiness

Each of these tests should be scored and recorded by the police officer as part of the initial examination. Very often Police Officers fail to do this and it is a common line of defence for lawyers (Rubenzer, S. 2011).

Within the context of police discretion it is important that the policy and communication lines between the Police Department and the front line officer are clear. If the Police officer is to reduce the potential liability for civil actions he needs clear directives. (LaFrance, T. 2011).

Consequences of Failure to Make Arrest

The main consequences of failure to make an arrest with drunk drivers is to expose the Police Department to the consequences of a Civil Action being brought against them. This may be from another injured party who suffered consequences as a result from injury from a drunk driver who was not arrested. Most civil cases however result from that of wrongful arrest or the use of excessive force by the police. The framework of negligence in the performance of police duties is often used for the basis of legal analysis and provision of case law in order to help the courts in the potential area of wrong doing. (Kappeler, V.E. 1990)

Examples of Case studies are as follows:

March – Framingham District Court, State of Massachusetts

Charge: Operating under the Influence (OUI)

Result: Not Guilty, Jury Trial

Description: A Police officer stopped a young driver who had been driving at 30mph in a 50 mph zone. He was considered acting suspiciously because of weaving in lanes and proceeding through a stop sign. The officer detected an odour of drink on the driver’s breath and subjected him to the set of drink driving tests. The driver failed each test but was subsequently arrested and then requested to take a breathalyser test. The driver refused the test. He was subsequently convicted on grounds of Operating under Influence (OUI).

January – Quincy District Court

Charge: OUI

Result: Not Guilty

A 23 year old driver was pulled over at a sobriety checkpoint. A police officer approached the driver and after admission of drinking instructed him to drive to a ‘pit’ where he would be inspected by another police officer. The driver was subject to the standard sobriety tests and failed 2 out of 3. He was equally found to be over the limits from the breathalyzer test. The driver was taken into custody and charged with OUI. (Matson, R.J. 2012)

The above cases illustrate examples of where the Police Officers have followed correct protocols, made appropriate charges but these have not been upheld by the courts.

In the State of Maryland, as in many other states, the position is that there is no tort liability to an injured party resulting from the non-malicious failure of an officer in the performance of his / her duty. The Courts have found it appropriate to follow this reasoning otherwise the Police Officers would become afraid of carrying out their duties and as such encourage intimidation of the police force. Hence there is some need for immunity for the police officers. This does not necessarily hold fast for Police Departments who are deemed to be negligent in the interpretation of policy which may in turn result to the injury of third parties.

Research

1. Stuster conducted research into the validation of the standard field sobriety test at 0.08% blood alcohol concentration. The study revealed that some 91% of the time the results performed by the Police Officers was a correct result. Further tests showed the results of the police officers as being ‘Near Perfect’ with a high degree of reliance upon the results (Stuster, J. 2006).

The attitude towards drink and driving is influenced by that of contemporary social attitudes towards the issue. Whilst law enforcement can help to influence and change social attitudes for the better, nevertheless it remains a social problem. The pressure that this imposes upon the police officers is likely to result in stricter policies being implemented in order to enforce the legal requirements in this regard. Most of the general public will support law enforcement in this area and the need to provide a safe environment for the public.

One of the main concerns in the concept of failure to arrest an intoxicated driver is that the person may be allowed to continue and subsequently endanger the life of another person by a hit and run scenario or causing a motor vehicle accident where innocent parties may be killed or sustain injury. This is often a difficult balancing act for the police in the interpretation of legal requirements and policies and upholding the law, particularly where due process has been followed and the courts subsequently find the driver not guilty.

Interpretation s of intoxication is often made more difficult because of the amount of work and pressure Officers have in terms of other duties. In many areas there is a shortage of manpower so the police have to try and optimize their time over a wide range of incidents and intoxicated drivers often become a lower priority. This places a considerable strain on the police force particularly around festive periods like Christmas and the New Year.

As previously stated the concept of intoxicated drivers is a social problem and as such the law needs to examine ways to reduce the burden of police officers in supervising the problem. There are a number of considerations that may be examined in terms of modifying the law in order to support these objectives. For example:-

• Reducing the legal limit for intoxication of drivers. In most states this is currently set at 0.08. Reducing the limits have been proven to reduce the numbers of intoxicated drivers on the road;
• Reducing the limit for repeat offenders – this penalizes those who have repeat convictions for drunk driving. In addition, this may be combined with potential driving suspension and revoking the driving licenses;
• Reducing the limit for underage drivers – an essential zero tolerance policy for young drivers who are more prone to binge drinking and driving;
• Raising the minimum legal drinking age. The minimum age in all states is now set at 21 years of age. This has had an impact on previous figures and saved deaths in a category that has been high in fatality;
• Mandatory seat belt – increases survival rates in car accidents.

Examining Police Discretion

The approach of police officers in exercising discretion depends largely upon their experience in the force. Statistics have shown that senior officers tend to be more lenient than junior officers and tend to make less DUI arrests. This review was found to hold true across most states. Equally, the older officers tend to have more experience with drunks and gain a better perception on the state of the driver, whereas younger officers tend to be more committed in terms of sticking to the book and making arrests for deviations from the legal rulings that apply. It is the analogy of the senior officers seeing the shades of gray, whereas the younger less experienced officer looks at this in black and white terms.

There is generally a lack of knowledge and awareness in educating police officers on alcohol and intoxication. This often deemed a low priority to other criminal investigation work apart from peak periods like Christmas when the tension is heightened. Many officers underestimate the degree of alcoholism in a driver and a lot of cases get passed by. The importance of training is extremely significant. Those officers that have received specialised instruction on the handling and dealing with intoxicated drivers have a more positive result in arrest profiles. This is noticeable in Traffic Divisions that produce higher arrest incidents than general patrol officers. It has been observed that very few arrests occur near the end of police shift periods as this lengthens the time for dealing with administrative duties.

Conclusion

It is possible for Police Officers to abuse their powers by not following the strict code of arrest and adopting discretionary powers. These are often judgement calls but the Officer needs to carefully consider the civil liability in making discretionary decisions. In general terms the police tend to do a good job dealing with a difficult social problem. This considering the case that in a lot of jurisdictions the police do not have sufficient resources to deal with the scale of the problem. This is also a question of priorities for the police given the limited amount of manpower and resources to deal with a wide array of problems. Most officers have a lot of experience in the field and tend to make the right calls. Most civil actions tend to result through wrongful arrest or acts of negligence by the police.

References

Kappeler, V. C. (1990). Police civil liability for failure to arrest intoxicated drivers. Journal of Criminal Justice Vol 18(2), 117-131.

LaFrance, T. (2011). Targeting discretion: an exploration of organizational communication between rank levels in medium sized southern US Police departments. Journal of Police Science and Management 13(2), 158-171.

Matson, R. J. (2012, 4 3). Massachusetts Lawyer Russell Matson’s Actual OUI Case Results. Retrieved from http://www.madrunkdrivingdefense.com/Actual%20Challanges.htm

Rubenzer, S. (2011). Judging Intoxication. Behavioural Sciences and the Law 29(1), 116-137.

Stuster, J. (2006). Validation of the standardised field sobriety test at 0.08% blood level. Human Factors Vol 48(3), 608-614.