Blood tests say drunk drivers escaping conviction

LAS VEGAS (Reuters Health) - Crashing your car while drunk and landing in the emergency room would seem like a direct route to a DUI conviction.

It isn’t, data from a large California hospital shows -- far from it.

Among people admitted to the ER with blood alcohol levels above the legal limit, “the conviction rate is 59 percent,” said Dr. James F. Holmes of UC Davis School of Medicine in Sacramento. “So there are 40 percent that are getting away with it.”

Holmes and his colleagues looked at 241 drivers who’d been admitted to their ER in 2007 with a blood alcohol level above 80 milligrams per deciliter, the state’s legal limit.

The sickest patients and those with alcohol levels below 200 were less likely to end up with a guilty sentence.

A check of Department of Motor Vehicles records revealed that investigating police officers often had a surprising impression of the drivers’ sobriety: 11 percent of the drunk drivers were characterized as having “not been drinking.”

Nevertheless, the ER blood samples showed an average alcohol level of 172 milligrams per deciliter.

“Those guys were over the legal limit, although the officers said they hadn’t been drinking, and they didn’t get a DUI,” said Holmes, who presented his findings at a conference for emergency physicians in Las Vegas this week.

“We’re still missing patients that should be convicted,” he told Reuters Health, adding that a few decades ago almost no one got convicted.

It’s unclear why the officers judged as they did in many cases, although it wasn’t necessarily out of negligence.

The Health Insurance Portability and Accountability Act (HIPAA) prevents doctors from giving out patient information, including blood alcohol levels, to the police.

Holmes said it often takes police a while to arrive at the hospital, where they sometimes have to wait around until the patient has been treated.

Meanwhile, the patient is breaking down alcohol at a steady pace. While it’s possible to estimate the original levels given the elapsed time, often that isn’t done. That might explain why the legally recorded blood alcohol levels averaged some 50 milligrams lower than the hospital’s test results.

And the police don’t always draw blood, Sergeant Norm Leong of Sacramento Police Department told Reuters Health by e-mail. In California, officers can require a blood test even when a suspected drunk driver refuses.

However, they only do so if there are signs of intoxication, such as “blood-shot eyes, odor of alcohol, witness indications of erratic driving before collisions, open container in car, etc.”