ICADTS - T '92 Klette, Hans, Professor of Criminal Law, LLD, PhD Faculty of Law, Lund University Box 207, Lund,Sweden

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1 ICADTS - T '92 Klette, Hans, Professor of Criminal Law, LLD, PhD Faculty of Law, Lund University Box 207, Lund,Sweden Swedish experiences in relation to drunk driving Summary 1. The drunk driving problem is a social problem that relates to both alcohol problems and traffic problems, e.g. alcohol policy and traffic policy. 2. Drunk driving must be studied from both the actors perspective and the structural perspective. 3. Studies on the effects of Drunk-Driving laws must include the interactions of three processes- (1) the legislative or political decision making process (2) the criminal justice decision making process and (3) the legal influence process. 4. The criminal justice approach to drunk driving must always be supplemented by the public health approach. 5. The legislative efforts in relation to drunk driving are formed in a political struggle between powerful groups as a compromise based on basic goals or values, basic public interests and special group interests and their perception of reality. 6. The alcohol and vehicle producers'responsibility for the negative consequences of their products must be increased. 7. We have sufficient knowledge of the effects of the most important countermeasures to suggest effective programs on drunk driving but political determination is lacking. Alcohol, Drugs and Traffic Safety - T92 Ed. by Utzelmann I Berghaus / Kroj Verlag TÜV Rheinland GmbH, Köln

2 Alcohol and traffic as social problems. The traffic system is a major subsystem of the larger social system with the main function of providing transportation-mobility being one of the features of modern society. We demand that the subsystem functions efficiently and that it provides transportation which is readily available, comfortable, inexpensive, and rapid, while maintaining an acceptable degree of safety. These aims and demands are often in conflict. The control of the traffic system involves large numbers of important subsystems and has become deeply enmeshed not only with most of the major industrial systems but also with major agencies of the society. All these groups have vested interests, their own needs to satisfy instead of the needs of society, and they are often in conflict about the proper way of controlling the safety problems. In relation to alcohol the vested interests are at least as great as in relation to traffic, for instance the great economic interests involved in the state alcohol monopoly and the private alcohol industry. The state can be said to have four kinds of interests in relation to alcohol, i.e. fiscal interests, interests of industrial policy, interests of public order and interests of social policy. If we combine the two areas of alcohol and traffic we understand that drunk driving must be seen as a social problem in the broadest economic, political and social context and that conflict occurs about the proper way of controlling the problem. Satisfaction of basic needs by driving and by drinking. The principal function of driving is to provide a change of location. But driving can also satisfy other needs such as: (a) The affiliation and acceptance need - related to the individual's role within the structure of the group. A person strives to have meaningful relations with others. 1568

3 The car often gives young people their first chance to get away from home and meet friends. In the car they can be their own group and create meaningful group relations, (b) The need for esteem - both self-esteem and recognition from others. Satisfaction of this need produces feelings of self-confidence, prestige, status, power and control. Driving can give a feeling of freedom, power, a sense of superiority and being master of all. Drinking alcohol seems mostly to be closely associated with important social functions, while drinking to fulfil an individual need usually seems to be additional. Among these needs are: (a) In relation to physiological needs, alcohol satisfies the taste and adds calories to the diet, (b) Concerning safety and security needs, alcohol can help the individual to feel free from fear and physical danger, and concern for the future, (c) In relation to affiliation and acceptance needs, alcohol can often play the important role of making relations among people in various groups easier. (d) Regarding the need for esteem, alcohol is often used to produce feelings of self-confidence, prestige, power and control. When we have found out what kind of needs are satisfied by alcohol and by driving, we have to find alternative means of satisfying these needs. The politics of drunk driving In studies on the legislative decision making process in relation to alcohol and traffic or the social factors determining the form and content of this legislation a combination of the actors perspective and the structural perspective should be used, which kan be summed up as follows: (1) The most important groups of actors in the field of alcohol and traffic are the political parties, the interest organizations, the legal and administrative authorities, the experts and the massmedia. These groups 1569

4 act mainly according to their group interests, their perception of reality or which factors they perceive as important in causing the drinking and driving problem, and their postion of power. (2) The social structure with its economic, social and political sub-structures sets a limit to the groups of actors trying to influence the legislation. (3) There is a dialectic relation between the social structure and the behaviour of the groups of actors. (4) The goals or basic values of the society and the public interests are often in conflict and the balance is formed as a compromise between these values and public interests but also special powerful group interests and their perception of reality. Thus, how we perceive these conflicts has much to do with which perspective we take and our perception of social reality. The way that dominant members of society look at things is supposedly the way things actually are, but behind these views are value judgments with ideological assumptions to the question concerned. The concept of the politics of reality becomes important in this relation. It refers to the fact that different individuals and social groups have stakes, both potical, ideological and material, in certain definitions of what is true. Another concept, the hierarchy of credibility, also becomes important in an area, where there are many experts. It refers to the fact that some people have more power than others to define what is true. The symbolic function of law. Legislative decision making in relation to drunk driving and its sanctioning system is a good example of what can be called the symbolic function of law. This function relates to the need for compromise in the legislative assembly, turning legislative form inte a means of 1570

5 resolving group conflicts. Part of the function of law is to give recognition to ideals different from establilshed conduct. Most of its complications arise from the necessity of pretending to do one thing while actually doing another. The legislator very often moves within a social reality very narrowly circumscribed by his political duties to party ideology and not to scientific truth. The formulations in the debates often serve the function of restoring peace and harmony in a situation, where opposing interests might tear politicians and others apart. Definition of drunk driving. Any amount of alcohol increases unnecessarily the risk of a traffic accident. Other factors such as inexperienced driving, inexperienced drinking, night-time driving, and driving at a high speed are involved. When these are in combination with drunk driving, especially among young drivers, a 0.02 % BAC can be seen as an indication of significant impairement of driving ability by alcohol. A 0.02 % BAC is also a point where the relative dangerousness of drunk driving starts to be a significant social problem, that needs to be socially controlled by the criminal law. General prevention. An important Swedish contribution to drinking-driving countermeasures is the experience based upon the idea of the Uppsala School of Legal Philosophy, that criminal law can be used to educate or create morality. This view considers law primarily as a tool of general prevention or long-term general deterrence in contrast to simple deterrence or short-term general deterrence practised and advocated by most Anglo-Saxon countries. In Sweden, imprisonment has been used less as a form of 1571

6 punishment or retribution but more as a means to create morality and to stress the importance of protecting social values in relation to drinking-driving, e.g. not to kill or harm another fellow-human-being by driving drunk and even not to combine alcohol and traffic at all. The Swedish Government - very consciously and very slowly, step by step - stiffend the drinking-driving law starting with fines and disqualification of the license in the 1920s. The criminal law was put in the center from the 30s by introducing mandatory jail - usually one month - in the early 30s, compulsary blood tests were introduced in the mid 30s, a per-se-law of 0.08 % BAC was established in 1941 with fines between 0.08 % and 0.15 % and jail above 0.15 %, a lowering of the legal limit to 0.05 % occurred in 1957 and to 0.02 % in 1990, random breath tests were introduce in the mid 70s, and vehicle forfeiture at the end of the 80s. The criminal-law approach has been supplement by a public health or treatment approach since the end of the 1960s by using probation with supervision and treatment of alcohol problems in cases above 0.15 % BAC. In the 1980s, contractual treatment outside and alcohol treatment courses inside the prisons have been introduced. Since 1991 different tests are used to check alcohol dependence in cases above 0.15 % BAC before regaining the driver licence by a renewed driving test. The introduction of breath tests as the main evidence for DWI in 1989 and with blood tests as a supplement raises questions in relation to legality and equality as three "reductions" exist in alcohol testing, namely in relation to (1) the security of measurements, (2) the elimination of alcohol in the body and (3) the blood-breath conversion factor. Thus, 0.02 % BAC de jure corresponds to 0.05 % BAC de facto. During these 70 years of the Swedish program against drunk 1572

7 driving also other factors were used in combination, especially information, education, alcohol policy factors such as price, availability constraints, and agelimits for purchase, and traffic policy factors. Important things take time and the Swedish experience emphasizes that it takes several decades to create effective, long-lasting countermeasures in a democratic society. Although the Swedish approach seems to have been relatively effective in relation to drivers in general, who usually separate drinking from driving, it appears to have failed with the young drivers and drivers with alcohol problems. In this connection it should be noticed that effective general deterrence seems to be achieved only when the perceived certainty of punishment exceeds a certain threshold level. My belief is that the risk of detection can not be raised to the level where the legal threat provides a long-term effect at a politically bearable cost. This seems to be especially true in relation to the two most important groups of risktakers among the drunk drivers - the young males and those with alcohol problems. The most dangerous category of drunk drivers is the heavy drinker, who regularly exceeds % BAC. He uses alcohol as a drug often together with legally prescribed drugs of different kinds. The important question to ask is what basic need this person is satisfing by the consumption of alcohol and/or drugs and by driving, and then try to find alternative ways to satisfy the individual. The criminal justice approach and the public health approach should be able to supplement each other. By using the first approach we try to teach the new generations of drivers not to combine alcohol and traffic. By using the second approach we try to reach drivers with alcohol pro 1573

8 blems. Unfortunately, most legislators do not understand that a high BAC implies a high probability of having an alcohol problem and are not willing to put up adequate resources to secure effective countermeasures such as treatment. Basic findings. 1. In relation to social control four thresholds must be reached before sanctions will have any essential and lasting impact on the behavior of drunk drivers in our democratic societies. These four thresholds relate to: (a) awareness or basic knowledge of the law; (b) perception of the law as legitimate or fair; (c) early detection of the offence and immediate correction of the offender; and (d) satisfaction of basic needs related both to the drinking and to the driving. 2. In relation to the political process we must notice - besides the economy - (a) the main goals or the basic values of the Western democratic societies, e.g. democracy or participation, liberty or freedom, justice or equality, and security; in the small homogeneous Swedish welfare society, "solidarity" must be added; (b) the most important public interests in relation to drinkingdriving, e.g. traffic safety, criminal policy, public health, alcohol policy and environmental policy; and (c) the goals or values and the public interests are often in conflict and the compromises made between or among them differ across societies. Policy recommendations. Based upon the scientific findings of social control and in relation to the political process, especially the public interests and the social goals and values, the following recommendations concerning the social control of drunk driving should be made: 1574

9 In relation to law and criminal justice A "zero alcohol" drunk driving law de jure, which corresponds to approximately 0.02 % BAC de facto. Police enforcement by rendom breath tests-using passive screening devices - and extensive advertising. Immediate road side adjudication and sentencing using immediate driving license suspension and fines (the ticket system) as first sanctions and educational information. Later additional criminal sanctions in cases above 0.10 % BAC (compulsory treatment and short prison sentences, and vehicle forfeiture for multiple offenders). The use of ignition interlocks with breath testing devices - also effective against car theft - for multiple offenders. In relation to alcohol policy A minimum drinking age at 20. In relation to traffic policy Licencing age at 18 - training to drive from 16. Graduated licenses from 18 to 20 or the first two years with driving restrictions progressively removed as the driver advances without any accidents or traffic offences; the restrictions should include zero BAC, a licensed adult supervisor, no passenger, no night-time driving, no driving above 80 km/hour. In relation to car production Because the non-use of safety belts is very serious - even with mandatory use laws - the passive or automatic restraints, especially automotive seat belts and air bags, must be part of all cars. The most important countermeasure to drunk driving is the installation of "Alcolock" in all cars at the production line. The producers'responsibility and

10 legal liability for the negative consequences of their products are continously increasing and as "Alcolock" would save many lives, compulsory "Alcolock" in all cars is a fair and rational approach to make drunk driving countermeasures most effective. Widmark's contributions. The most important Swedish contribution in relation to drunk driving is professor Erik Widmark's micro-method for the determination of alcohol and for the establishment of the laws for the kinetics of alcohol, which made promille or per se legislation possible. How was this man - as scientist and as a human being? In 1920 at the age of 31 - Erik Widmark was appointed Professor of Medical and Physiological Chemistry at Lund University, Sweden. Mainly through his micro-method for the determination of alcohol and acetone and for the establishment of the laws for the kinetics of alcohol, he was awarded great honour and appreciation both nationally and internationally. His method for alcohol determination for forensic purposes has been of greatest importance worldwide. The micromethod in its essential form was published in Alcohol research continues as a main stream in Widmark's research, and the climax occured with the publication of "Les lois cardinales de la distribution et du metabolisme de l'alcool ethylique dans l'organisme humain" (1930), in which Widmark described the laws of combustion of alcohol in the human organism. The 1930s was Widmark's most productive research period. Questions concerning vitamins, the importance of wheat bran as a diet component and the effect of heat upon it can be mentioned. During his last years as an active researcher he carried forward what he called "the third chapter of nutritional physiology", nutritional choice. He 1576

11 also participated with great interest in the general debate, especially about nutritional physiology. Throughout his entire life Widmark concerned himself with the search for truth through observations and rational reasoning but always leaving open the correctnees of his childhood Christian faith. He was greatly concerned with the origins of life, and he discussed mainly three hypotheses: the living substance is eternal, the origin of life has eminated from an outside creative force, life has arisen through a constellation of physical and chemical conditions. He belived that the application of the laws of physics and chemistry was the only justifiable procedure for research, but he found that knowledge of the innermost life reactions is not attainable by research, and that life in itself is illogical. He found that any attempt to explain the existance of life conflicts with reason. His inner struggle, however, in no way isolated him from the world. He was a Swedish Liberal defending the freedoms of thought and of the individual. He often cited the German philosopher Theodor Lessing ( ), who once said that if he stood before God and must choose between the truth and the search for thruth, he would answer: "The truth is for You alone; give me the search." In one of his last speeches held in December, 1944, five months before his death at the age of 56 Widmark said: "True research, the search for the truth, is a part of life itself. From a biological standpoint, somatic life is the result of the interaction between two forces pitted against each other: analysis and synthesis. The breaking down, analysis, counterbalances the building up, synthesis. Of these, synthesis is the cardinal symptom of life, as its cessation means death. But analysis continues after death, disintegrates until we become dust. Within science as well, just synthesis is the living factor. Without synthesis no living science." 1577