- Email: [email protected]
Driver fatigue and the law from the perspective of police officers and prosecutors
Transportation Research Part F 18 (2013) 159–167
Contents lists available at SciVerse ScienceDirect
Transportation Research Part F journal homepage: www.elsevier.com/locate/trf
Driver fatigue and the law from the perspective of police officers and prosecutors q Igor Radun a,b,⇑, Jussi Ohisalo c, Jenni Radun a, Mattias Wahde b, Göran Kecklund d a
Human Factors and Safety Behavior Group, Institute of Behavioral Sciences, University of Helsinki, Helsinki, Finland Department of Applied Mechanics, Chalmers University of Technology, Göteborg, Sweden c Faculty of Law, University of Helsinki, Helsinki, Finland d Stress Research Institute, Stockholm University, Stockholm, Sweden b
a r t i c l e
i n f o
Article history: Received 16 April 2012 Received in revised form 10 January 2013 Accepted 10 January 2013
Keywords: Driver fatigue Sleepiness Drowsiness Traffic law Traffic police Prosecutors
a b s t r a c t Even though police officers and prosecutors play a key role in traffic law application, little is known about their experiences, attitudes, and opinions regarding the complex issue of driver fatigue and the law. This paper is based on an extensive online survey collected from traffic (N = 129) and local (N = 100) police officers and prosecutors (N = 96) in the context of Finnish traffic law, which forbids driving while fatigued in an article relating to a driver’s fitness to drive. While encountering fatigued drivers is very common for police officers, only a small proportion has received training about how to recognize and deal with fatigued drivers. Driving while extremely fatigued is considered rather or extremely negligent behavior by almost all respondents. Although agreement between these three groups exists regarding several issues, they disagree about whether the current law is specific enough, and whether experts might be valuable in court when discussing the possible contribution of fatigue to the cause of a crash. We discuss the application of the law and opinions about the current law formulation, experience and education, as well as general awareness and attitudes, taking into consideration the different nature of police and prosecutor work. Ó 2013 Published by Elsevier Ltd.
1. Introduction Despite the high prevalence and serious consequences of driving while fatigued or sleepy (Horne & Reyner, 1999), there has been little success in addressing this issue in the law (Jones et al., 2005). The main reasons for this failure are the blurred concept of fatigue, the inexistence of a validated and reliable device for detecting the level of sleepiness (cf. the breath analyzer for alcohol levels), and the lack of clear and objective criteria for recognizing the contribution of fatigue/sleepiness to crash causation. Furthermore, given that ‘‘voluntary conduct is central to criminal responsibility’’ (McCutcheon, 1997), there are obvious difficulties in prosecuting drivers who cause a crash while asleep. Although there have been attempts to operationalize driver fatigue in terms of hours without sleep (Maggie’s Law in the state of New Jersey, US), this approach has not been widely accepted, even in other US states (National Sleep Foundation, 2008). In countries such as Australia and the UK there has been much discussion about whether the existing legislation
q
Disclosure statement: No significant financial interest/other relationship to disclose.
⇑ Corresponding author. Address: Human Factors and Safety Behavior Group, Institute of Behavioral Sciences, P.O. Box 9, 00014 University of Helsinki, Finland. Tel.: +358 9 19129423; fax: +358 9 19129422. E-mail address: igor.radun@helsinki.fi (I. Radun). URL: http://www.mv.helsinki.fi/home/radun (I. Radun). 1369-8478/$ - see front matter Ó 2013 Published by Elsevier Ltd. http://dx.doi.org/10.1016/j.trf.2013.01.001
160
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
should be changed to clearly incorporate falling asleep while driving and driver fatigue (House of Commons, 2006; Tasmania Law Reform Institute, 2007; Victorian Government, 2004). In traffic laws in the Nordic countries, fatigue is mentioned in articles addressing the driver’s fitness to drive. For example, Swedish traffic law says, ‘‘Vehicles may not be driven by a person who, due to illness, fatigue, intoxication by either alcohol, other stimulants, or sedatives, or for any other reason, cannot operate the vehicle in a safe manner’’ (unofficial translation). A similar formulation exists in the Finnish Road Traffic Act (RTA; Article 63): ‘‘A person that does not meet the requirements for driving because of illness or tiredness or another similar reason or whose health condition no longer fulfills the requirements needed for granting a driver’s license must not drive a vehicle’’ (unofficial translation). Such law formulations obviously do not specify how fatigued is too fatigued. Given that there are no clear guidelines on how to apply this law in practice, it is somewhat surprising that the Finnish police and courts punish a number of drivers under the article that forbids driving while fatigued (Radun & Radun, 2009). However, practically no studies exist on police officers’ and prosecutors’ understanding on how to apply this law in practice. Furthermore, studies on police officers regarding their experiences with fatigued drivers are rare. The notion pointed out by Lyznicki, Doege, Davis, and Williams (1998, p. 1909) 15 years ago still stands today: ‘‘Little is known about police training to recognize sleepiness as a cause of crashes or the criteria they use for reporting this factor.’’ The Canadian Traffic Injury Research Foundation (TIRF) has carried out one of the most extensive surveys; however, the results have been only briefly presented (Robertson, Holmes, & Vanlaar, 2009) and a full report has yet to be published. (At the time of preparing our study, we were unaware of this Canadian study.) Therefore, the purpose of this study was to investigate police officers’ and prosecutors’ experiences in tackling fatigued drivers, as well as their attitudes and opinions about fatigued driving and the current law. 2. Method 2.1. Data In view of the small number of prosecutors (around 340) and traffic police officers (around 400) in Finland, all were invited to participate in the study, which took place in 2009. The invitations, which pointed to an online questionnaire, were sent via the general prosecutor’s office and traffic police officials, and the response rate was around 30%. In Finland, it is often the case that local police officers, rather than traffic police, play a major part in the investigation of road traffic crashes. Hence, the invitation e-mail was also sent to all 24 police departments in Finland, with a request to ask local police officers who are involved in traffic surveillance and crash investigation to participate in the study. Responses were received from 96 prosecutors, 129 traffic police officers, and 100 local police officers with experience of traffic surveillance and crash investigation. In addition to structured questions, the questionnaire allowed the respondents to add their own comments in connection with the questions. A report in Finnish was recently published (Radun, Ohisalo, & Radun, 2010). Parts of this extensive questionnaire have been published in English (Radun, Ohisalo, Radun, & Kecklund, 2011; Radun, Ohisalo, Radun, & Rajalin, 2012), but the data presented here is new. 2.2. The law In Finland, road safety is covered by several acts and decrees, the most important of which is the Road Traffic Act (RTA). Together with the Penal Code (PC), this act defines penalties for traffic offenses. However, only the PC specifies crimes that lead to imprisonment. For minor traffic offenses, fixed fines are used, but the most common form of punishment is a day-fine (from 1 to 120 units). Since being introduced in 1921, the system of day-fines has been used as a form of punishment for all kinds of offenses. In the case of day-fines, the amount to be paid depends on the monthly income and total assets of the offender (Joutsen, Lahti, & Pölönen, 2001). An important issue regarding Article 63 of the RTA, which explicitly prohibits driving while tired, is that breaking it constitutes a traffic violation (RTA, Art. 103) that, by default, leads to a fine or a day-fine punishment. If a police officer issues a day-fine punishment, this has to be approved by the prosecutor, and this is also the case if a driver objects to a fine. Depending on the severity of the offense, a fatigued driver can, instead of a traffic violation (RTA, Art. 103), be charged either with endangering traffic safety (RTA, Art. 98; PC, Ch. 23, Sec. 1) or possibly with gross endangering of traffic safety (RTA, Art. 99; PC, Ch. 23, Sec. 2). These charges are more serious, leading to criminal responsibility, and possibly resulting in imprisonment. 2.3. Data analysis The Chi-square test was used to assess the agreement between three groups: prosecutors (Pr), and local (LP) and traffic (TP) police officers. In some cases, when there was no statistical significant difference between these three groups, local and traffic police officers were treated as one group (LP + TP) and then compared with the prosecutors. The results are presented separately for the law application and opinions about the current law formulation, experience and education, as well as general awareness and attitudes.
161
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
3. Results 3.1. Law application and opinions about the current law formulation In most of the questions addressing these issues, there is a difference between police officers and prosecutors. They disagree about whether experts might be valuable in court when discussing a possible fatigue contribution to the cause of a crash (v2 = 42.35, df = 8, p < 0.001; Fig. 1), whether the current law about driver fatigue should be more explicitly defined (v2 = 11.91, df = 4, p < 0.05; Table 1), and whether is important to establish whether a clearly drunk driver fell asleep or not (v2 = 54.23, df = 8, p < 0.001; Fig. 2). These three groups do not differ regarding whether is impossible to define driver fatigue in the law without fatigue detecting devices (v2 = 9.63, df = 8, p > 0.05; Police (LP + TP) vs. prosecutors v2 = 2.09, df = 4, p > 0.05; Fig. 3). Local and police officers disagree about whether adequate attention in investigation is given to establishing whether the driver was tired or asleep at the wheel (v2 = 12.35, df = 4, p < 0.05; Fig. 4). They also disagree about what would they do with a driver guilty of a minor fatigue-caused traffic violation (v2 = 26.57, df = 4, p < 0.001; Table 2). The respondents also offered a number of actions they would take in this kind of situation. Their actions can be roughly grouped into those completely forbidding driving (e.g., ‘‘I’d demand that a person aborts the trip’’), ordering a rest (‘‘I’d order a person to rest at the nearest bus stop’’), discussing the risks of driving while fatigued (‘‘I’d discuss the risks of driving while fatigued’’), and reminding the driver that the law forbids fatigued driving. 3.2. Experience and education Almost every police officer (96%) has stopped a driver because of suspected intoxication, only to discover that fatigue, not alcohol, was the cause of suspicious driving. This is an example given by a local police officer: ‘‘I followed a car drifting between his own and an oncoming lane. I was sure it was aggravated drunk driving, but it was a renovation man who was returning from a long working day. He repeatedly nodded off until he finally woke up stranded in a ditch.’’ Two-thirds (66%) of traffic and four out of five (79%) local police officers investigated a crash in which the driver was suspected of having fallen asleep. Similarly, 69% of prosecutors had a case of a driver suspected of falling asleep and causing a crash. Only 23% of traffic and 8% of local police officers have received training about fatigue in traffic. The great majority (95%) of police officers receiving such training found it useful, while 80% of those without such training believe that such training would be beneficial for them. One local police officer commented: ‘‘I do not think police pay enough attention to fatigue in traffic. This is partly due to a lack of education.’’ 3.3. General awareness and attitudes Around 70% of police officers and more than 80% of prosecutors believe that a normal healthy person cannot fall asleep behind the wheel without experiencing increased sleepiness beforehand (v2 = 14.00, df = 8, p = 0.059; Police (LP + TP) vs. prosecutors v2 = 4.40, df = 4, p > 0.05; Fig. 5). A large majority (75–85%) of police officers disagree that compared to the risk of drunk driving, fatigued driving is a minor problem, while significantly fewer prosecutors disagree with the statement (v2 = 28.24, df = 8, p < 0.001; Fig. 6). All three groups rated driving while extremely tired as the most negligent behavior in the list of seven different risky driving behaviors (Fig. 7). There were no significant differences between the three groups in rating any of these seven risky driving behaviors. The only difference was found in texting while driving when police officers (treated as one group) were compared to prosecutors (v2 = 7.04, df = 2, p < 0.05).
completely disagree
somewhat disagree
in between
somewhat agree
completely agree
70%
90%
Prosecutors
Local police
Traffic police 0%
10%
20%
30%
40%
50%
60%
80%
100%
Fig. 1. Distribution of responses to the statement: ‘‘Experts might be valuable in court when discussing a possible fatigue contribution to the cause of a crash.’’
162
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
Table 1 Distribution of responses to the question: ‘‘Should this law be more explicitly defined?’’
Yes, the current definition is too vague No, the current definition is specific enough Cannot say
completely disagree
Traffic police N = 127
Local police N = 99
Prosecutors N = 96
69 (54.3%) 40 (31.5%) 18 (14.2%)
48 (48.5%) 39 (39.4%) 12 (12.1%)
32 (33.3%) 51 (53.1%) 13 (13.5%)
somewhat disagree
in between
somewhat agree
completely agree
70%
90%
Prosecutors
Local police
Traffic police p 0%
10%
20%
30%
40%
50%
60%
80%
100%
Fig. 2. Distribution of responses to the statement: ‘‘If a driver who causes a crash is clearly drunk, it is not very important to establish whether he fell asleep or not.’’
completely disagree
somewhat disagree
in between
somewhat agree
completely agree
70%
90%
Prosecutors
Local police
Traffic police 0%
10%
20%
30%
40%
50%
60%
80%
100%
Fig. 3. Distribution of responses to the statement: ‘‘Without fatigue detecting devices defining driver fatigue in the law is impossible.’’
completely disagree
somewhat disagree
in between
somewhat agree
completely agree
70%
90%
Prosecutors
Local police
Traffic police 0%
10%
20%
30%
40%
50%
60%
80%
100%
Fig. 4. Distribution of responses to the statement for prosecutors: ‘‘The police rarely pay sufficient attention in the investigation whether the driver was tired or asleep at the wheel’’ and for police officers: ‘‘In the investigation adequate attention is rarely given to whether the driver was tired or asleep at the wheel.’’
4. Discussion To our knowledge, this is the first study where a large number of different criminal justice professionals was surveyed about the law that forbids driving while fatigued. Furthermore, the collected data allows us to discuss how police officers deal with fatigued drivers. In our discussion, we often refer to a Canadian study (Robertson et al., 2009), as its results, although only briefly presented, are relevant to our discussion and the generalizability of our results.
163
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
Table 2 Distribution of responses to the question: ‘‘Let us assume that the driver is only guilty of a minor traffic violation, but it seems that the violation was due to fatigue. What would you do in this situation?’’
Only a verbal warning A written notice A fine A day-fine Start an investigation/a pre-trial Total
Traffic police N (%)
Local police N (%)
Total N (%)
45 (35.7%) 31 (24.6%) 10 (7.9%) 32 (25.4%) 8 (6.3%) 126 (100.0%)
69 (69%) 10 (10%) 7 (7%) 10 (10%) 4 (4%) 100 (100.0%)
114 (50.4%) 41 (18.1%) 17 (7.5%) 42 (18.6%) 12 (5.3%) 226 (100.0%)
completely disagree
somewhat disagree
in between
somewhat agree
completely agree
70%
90%
Prosecutors
Local police
Traffic police 0%
10%
20%
30%
40%
50%
60%
80%
100%
Fig. 5. Distribution of responses to the statement: ‘‘Generally speaking, a normal healthy person cannot fall asleep behind the wheel without experiencing increased sleepiness beforehand.’’
completely disagree
somewhat disagree
in between
somewhat agree
completely agree
70%
90%
Prosecutors
Local police
Traffic police 0%
10%
20%
30%
40%
50%
60%
80%
100%
Fig. 6. Distribution of responses to the statement: ‘‘Compared to the risks of drunk driving, fatigued driving is a minor problem.’’
4.1. Law application and opinions about the current law formulation The way police officers (and consequently prosecutors) handle drowsy drivers mostly depends on whether fatigue and sleepiness are addressed in the law, and if so, how they are defined and what are the prescribed punishments. As mentioned before, Finnish traffic law forbids driving while fatigued only on a general level without specifying what degree of fatigue is too fatigued. An additional problem is the lack of guidelines regarding the practical application of this law. Despite these deficiencies, the Finnish police and courts punish a number of fatigued drivers every year (Radun & Radun, 2009). However, given that only a very small proportion of these drivers (3.1% in 2004–2005) officially deny being tired or falling asleep (Radun & Radun, 2009), it is reasonable to ask how many drivers every day are suspected of being fatigued but never charged or punished on that basis because of their strong denial of such a possibility. In such cases, police officers and prosecutors might face serious difficulties in proving otherwise. Nevertheless, it might be that not too many drivers object to the accusation of being fatigued when causing a crash because the final punishment will not be considerably different (usually only in the number of day-fines) even if a crash results in fatalities. Punishments for traffic offenses in Finland are generally low (Joutsen et al., 2001), and punishments for driving while fatigued are not different in this respect. On the other hand, it seems obvious that drivers causing a fatal crash are more likely to deny being fatigued or falling asleep in order to avoid taking clear personal responsibility (Radun & Radun, 2009). A strong denial can be expected more often in cases prosecuted under Maggie’s law in the state of New Jersey, US, which prescribes a sentence of up to 10 years in prison for a driver that causes a fatal crash while being 24 h without sleep. Although this law precisely defines ‘‘how fatigued is too fatigued’’ and police officers have a clear goal of establishing
164
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
Not at all
Talking on a mobile phone while driving
TP LP Pr
Driving after drinking two beers
TP LP Pr
Exceeding (>30km/h) the speed limit on a highway
TP LP Pr
Texting while driving
TP LP Pr
Driving with a hangover
TP LP Pr
Undertaking
TP LP Pr
Driving while extremely tired
TP LP Pr
0%
Somewhat negligent
20%
40%
Rather negligent
60%
Very negligent
80%
100%
Fig. 7. Distribution of responses to the question: ‘‘How negligent is the following driving behavior?’’
whether the driver has gone without sleep for 24 consecutive hours, it is easy to imagine that investigating police officers would have a difficult task if the driver strongly denies such a possibility. Can we expect police officers (and prosecutors) to invest a lot of energy and time in something that is so difficult to prove and/or if prescribed penalties are small? As we can see in Fig. 2, about 30% of traffic police and 50% of local police officers, and more than 70% of prosecutors believe that if a driver is clearly drunk it is not important to establish whether he fell asleep or not. Under the Finnish law, prescribed sentences for drunk driving are much higher than can be expected for a driver who falls asleep while driving. It should be noted here that the large differences between police officers and prosecutors on this issue probably exist because the work of police officers, in addition to investigation for legal purposes, also includes a traffic safety component (see also the Section 4.2). A similar explanation based on work task differences between police officers and prosecutors might be applied to differences on the question whether experts might be valuable in court when discussing a possible fatigue contribution to crash causation (Fig. 1). In the eyes of the prosecutor, it just might not be cost-effective to invite such expert witnesses if the outcome of the verdict will not be significantly different (usually only in terms of day-fines). The value of using such expert witnesses in assessing the role of fatigue and sleepiness in crash causation has been repeatedly mentioned in the literature (Jones, Dorrian, & Dawson, 2003; Rajaratnam & Jones, 2004). On the other hand, many of our respondents, especially traffic police officers, believe that not enough attention is given in crash investigations whether the driver was tired or asleep at the wheel (Fig. 4). How local and traffic police officers would deal with a driver that is suspected of a fatigue-related minor traffic offense (Table 2) is again a natural reflection of the nature of their work duties. Given that traffic surveillance is a major part of traffic police officers’ work while local police officers have a variety of other duties, it seems expected that traffic police officers are more likely to issue a written notice or fine the driver than local police officers. Similar to Finnish local police officers, 69.2% of Canadian police officers would give a warning to a driver who appeared to be drowsy after having been stopped by them (Robertson et al., 2009). About one third of Canadian police officers would charge the driver with a provincial offence; 4.6% would charge the driver with a criminal offence; and 3.2% would make an arrest (Robertson et al., 2009). In freely written comments, the respondents in our survey offered several other measures, such as completely forbidding driving, ordering a rest, and discussing the risks of driving while fatigued (including the reminder that the law forbids fatigued driving). Among Canadian police officers, 62% would organize alternative transportation (Robertson et al., 2009). It is obvious that without fatigue (or sleepiness) detectors, it is not easy to define fatigue in operationalized terms by law. Fig. 3 shows that our respondents are divided on this issue whether without such a device it is possible to legally define fatigue. Despite the fact that there is no difference between police officers and prosecutors on this question, these three groups differ on whether this particular law should be changed (Table 1). Police officers more often than prosecutors believe that the current definition is too vague. Similarly, police officers are more often in favor than against a Maggie’s law type of law that defines the critical limit of driver fatigue in terms of 24 consecutive hours of wakefulness, while prosecutors are largely against it (Radun et al., 2012).
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
165
4.2. Experience and education Nearly all police officers (96.1%) in our survey have mistakenly stopped a fatigued driver instead of an expected drunk driver. A corresponding figure from the Canadian study is 92.4% (Robertson et al., 2009). This striking similarity not only indicates that police officers in different parts of the world have similar experiences concerning fatigued drivers, but also that fatigued drivers might drive in a similar manner as drunk drivers and thus pose a serious safety problem for themselves and other participants in traffic. More than two-thirds of both police officers and prosecutors have investigated a crash in which the driver was suspected of having fallen asleep. However, only every sixth police officer has received training about how to recognize fatigued drivers. It is difficult to predict whether receiving such training would produce better results in detecting (and punishing) fatigued drivers or those who fall asleep while driving, but almost all (95%) of police officers that had participated in such training found it useful, while 79.6% of those without training regarding fatigue detection believed that such training would be beneficial for them. In the Canadian survey, more than half of police officers ‘‘felt that they had not received adequate information about ways to identify drivers who are drowsy or fatigued or to determine the role of fatigue in crashes’’ (Robertson et al., 2009). A more positive example regarding the training of police officers comes from Queensland, Australia. There, the education for police officers investigating road crashes includes training on how to recognize the signs of fatigue-related crashes (Queensland Parliamentary Travelsafe Committee, 2005). According to the instructions, some of these signs are ‘‘the lack of braking or evasive tactics prior to the crash,’’ ‘‘a vehicle traveling straight ahead prior to the crash,’’ ‘‘the movements of the driver in the 36 h leading up to the crash (including his/her work hours, workload, recreational activities and hours of sleep), ‘‘the medical history of the drivers, for instance the presence of sleep apnea,’’ etc. We are unaware of reports about the effectiveness of this training. The way police officers investigate crashes and report on causal factors is naturally influenced by current developments in safety research and practices. As pointed out by Ogden and Moskowitz (2004, p. 186), ‘‘Police descriptions of crashes are typically assigned to the cause of current interest.’’ This is illustrated by the example how the same type of crashes at T-intersections were once classified as loss-of-control crashes, while nowadays they are considered inattention-related crashes ‘‘although there is no evidence that driver behavior has changed’’ (Ogden & Moskowitz, 2004, p. 186). Such influences may come from more implicit (increased discussion about certain crash-causal factors, media attention, academic research etc.) or explicit sources (e.g., guidelines or manuals for police officers). Although reports about driver fatigue appeared already in the 1920s (Horstmann, Hess, Bassetti, Gugger, & Mathis, 2000), it is only during the last two decades that fatigue- and sleepiness-related research has intensified. This increased research interest was also accompanied by an increase in safety campaigns targeting fatigue-related safety risks (Donovan, Jalleh, & Henley, 1999; Fletcher, McCulloch, Baulk, & Dawson, 2005). However, as usually happens, the focus fluctuates between many traffic safety issues. A small but interesting example of such change regarding the attention given to the fatigued driving is the development of a home page of the NTHSA (National Highway Traffic Safety Administration), an influential governmental organization in the US. While for several years, among other topics, drowsy and distracted driving were grouped together, since 2010 drowsy has been dropped, and now distracted driving stands alone among driving safety topics (snapshots retrieved from web archive http://www.archive.org/web). Similarly, it seems that the enthusiasm following the introduction of Maggie’s law that defines a fatigued driver as anyone who has been awake for more than 24 consecutive hours has somewhat faded away. Although this law still attracts a lot of attention by the scientific community and media, there are no indications that legislation in other countries or in US states would adopt such a law in the near future (National Sleep Foundation, 2008). However, this is obviously due to more objective reasons given the complexity of addressing driver fatigue in the law. On the other hand, one of the most explicit influences on police officers’ work is the design of police crash report forms. In 2008 in the US, all but one state (Missouri) had fatigue or sleepiness on police crash investigation forms (National Sleep Foundation, 2008), which was not the case in the early 1990s (Knipling & Wang, 1994). In Finland, as in many other countries, causal factors are not routinely recorded for non-fatal crashes (Horne & Reyner, 1999). There are even large differences within the EU regarding fatal crashes, although some attempts are currently under way to standardize the process of data collection for the European fatal accident database (Morris et al., 2010).
4.3. General awareness and attitudes Given that almost all of our participants find driving while extremely tired as rather or very negligent behavior (Fig. 7), it is somewhat surprising that every sixth police officer and every tenth prosecutor disagree with the statement that a normal healthy person cannot fall asleep behind the wheel without experiencing increased sleepiness beforehand (Fig. 5). An additional 10% of the participants are undecided on this matter. It is generally accepted that sleep attacks are not characteristic of healthy individuals (Horne & Baulk, 2004). However, a very recent study reported that sleep-deprived healthy subjects can fall asleep without experiencing sleepiness (Herrmann et al., 2010), although such interpretation of the data has been challenged (Anund & Åkerstedt, 2010). Whether people can indeed fall asleep without experiencing any sleepiness beforehand is a central question concerning legal implications. From
166
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
the legal point, it is crucial whether a driver falls asleep without any warning or whether he or she consciously decides to ignore the warning signs and continues to drive knowing that such action endangers traffic safety. Compared to the risk of drunk driving, fatigued driving is not seen as a minor problem by the majority of police officers, while surprisingly more than 20% of prosecutors (+20% undecided) are of the opposite opinion (Fig. 6). Again, it might be that prosecutors have this kind of opinion because the number of fatigue-related traffic offenses they handle every year is much smaller than the number of drunk driving cases, while police officers have more experience with fatigued drivers on the road. Furthermore, many police officers have themselves experienced fatigue while driving during long night shifts and are consequently more aware of the dangers of driving while tired (Radun et al., 2011). 4.4. Limitations of the study The data used in this study was collected from the population rather than from a sample of state prosecutors and traffic police officers. This approach was adopted because the total number of prosecutors and traffic police officers in Finland is quite small. The participation level of around 30% was considered satisfactory for this kind of extensive survey. On the other hand, it was practically impossible to find out how many local police officers around Finland are involved in traffic surveillance and crash investigating processes. Therefore, the exact response rate for this group remains unknown. As in any similar survey study, the issue of self-selection bias occurs: those who are more interested in fatigue issues were probably more likely to respond to our invitation and complete the survey. However, although about 30% of the prosecutors reported not having a case in which the driver has been suspected of falling asleep and causing a crash, they nevertheless did respond to our survey. Finally, the fact that the topic of the survey was driving while fatigued and the law probably had some influence on how the respondents answered some questions (e.g., see Fig. 7). 4.5. Final comments Our study provides further evidence that it is common for police officers and prosecutors to encounter fatigued drivers. However, given the difficulties in proving that a driver was unfit to drive or caused an accident due to fatigue, it is natural that not all of such drivers are detected and fined by police officers or that they come to the attention of prosecutors. This might be especially true if the effort police officers and prosecutors have to invest in proving the role or the level of driver fatigue continues to be disproportionally higher than the final punishment. Whether and how these problems could be overcome needs further investigations. Nevertheless, despite no validated results, the improved training of police officers seems promising given the positive feedback of police officers participating in such training. Acknowledgements The data for this study came from a project on fatigue and the law, supported by the Central Organization for Traffic Safety (Liikenneturva), the Traffic Safety Committee of Insurance Companies (VALT), the Finnish Vehicle Administration (AKE), the Finnish Taxi Owners Federation (Taksiliitto), and the Finnish Transport and Logistics Organization (SKAL). The Henry Ford Foundation, VALT, and Liikenneturva provided financial support to the first author. This funding has been greatly appreciated. References Anund, A., & Åkerstedt, T. (2010). Perception of sleepiness before falling asleep. Sleep Medicine, 11, 743–744. Donovan, R. J., Jalleh, G., & Henley, N. (1999). Executing effective road safety advertising: Are big production budgets necessary? Accident Analysis and Prevention, 31, 243–252. Fletcher, A., McCulloch, K., Baulk, S. D., & Dawson, D. (2005). Countermeasures to driver fatigue: A review of public awareness campaigns and legal approaches. Australian and New Zealand Journal of Public Health, 29, 471–476. Herrmann, U. S., Hess, C. W., Guggisberg, A. G., Roth, C., Gugger, M., & Mathis, J. (2010). Sleepiness is not always perceived before falling asleep in healthy, sleep-deprived subjects. Sleep Medicine, 11, 747–751. Horne, J. A., & Baulk, S. D. (2004). Awareness of sleepiness when driving. Psychophysiology, 41, 161–165. Horne, J., & Reyner, L. (1999). Vehicle accidents related to sleep: A review. Occupational and Environmental Medicine, 56, 289–294. Horstmann, S., Hess, C. W., Bassetti, C., Gugger, M., & Mathis, J. (2000). Sleepiness-related accidents in sleep apnea patients. Sleep, 23, 383–389. House of Commons, Transport Committee (2006). Roads Policing and Technology: Getting the right balance. Tenth Report of Session 2005–06. The Stationery Office Limited, London. Jones, C. B., Dorrian, J., & Dawson, D. (2003). Legal implications of fatigue in the Australian Transportation Industries. Journal of Industrial Relations, 45, 344–359. Jones, C. B., Dorrian, J., & Rajaratnam, M. W. (2005). Fatigue and the Criminal law. Industrial Health, 43, 63–70. Joutsen, M., Lahti, R., & Pölönen, P. (2001). Criminal justice systems in Europe and North America: Finland. European Institute for Crime Prevention and Control, affiliated with the United Nations. Helsinki, Finland. Knipling, R. R., & Wang, J. S. (1994). Research Note: Crashes and Fatalities Related to Driver Drowsiness/Fatigue. Washington: National Highway Traffic Safety Administration. Lyznicki, J. M., Doege, T. C., Davis, R. M., & Williams, M. A. (1998). Sleepiness, driving, and motor vehicle crashes. Jama-Journal of the American Medical Association, 279, 1908–1913. McCutcheon, J. P. (1997). Involuntary conduct and the case of the unconscious driver: Reflections on Jiminez. Criminal Law Journal, 21, 71–79. Morris, A., Brace, C., Reed, S., Fagerlind, H., Bjorkman, K., Jaensch, M., et al (2010). The development of a European fatal accident database. International Journal of Crashworthiness, 15, 201–209.
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
167
National Sleep Foundation (2008). State of the States Report on Drowsy Driving. Washington, D.C.: National Sleep Foundation. Ogden, E. J., & Moskowitz, H. (2004). Effects of alcohol and other drugs on driver performance. Traffic Injury Prevention, 5, 185–198. Queensland Parliamentary Travelsafe Committee (2005). Driving on empty: Fatigue driving in Queensland. Legislative Assembly of Queensland, Parliamentary Travelsafe Committee. Radun, I., Ohisalo, J., Radun, J. E., & Kecklund, G. (2011). Night work, fatigued driving and traffic law: The case of police officers. Industrial Health, 49, 389–392. Radun, I., Ohisalo, J., & Radun, J. E. (2010). Väsymys tieliikenteessä ja laki: lainsoveltajien näkökulma [Fatigued driving and the law: Prosecutors’ and police officers’ views]. Liikenneturvan tutkimusmonisteita, 110/2010. Radun, I., Ohisalo, J., Radun, J. E., & Rajalin, S. (2012). Law defining the critical level of driver fatigue in terms of hours without sleep: Fatal accident data and criminal justice professionals’ opinions. International Journal of Law, Crime and Justice, 40, 172–178. Radun, I., & Radun, J. E. (2009). Convicted of fatigued driving: Who, why and how? Accident Analysis and Prevention, 41, 869–875. Rajaratnam, S. M. W., & Jones, C. B. (2004). Lessons about sleepiness and driving from the Selby Rail Disaster Case: R v Gary Neil hart. Chronobiology International, 21, 1073–1077. Robertson, R., Holmes, E., & Vanlaar, W. (2009). The facts about fatigued driving in Ontario: A guidebook for police. Traffic Injury Research Foundation. Tasmania Law Reform Institute (2007). Criminal liability of drivers who fall asleep causing motor vehicle crashes resulting in death or other serious injury, Issues Paper No.12. Victorian Government, Department of Justice, 2004. Culpable and dangerous driving laws, Discussion Paper.
Contents lists available at SciVerse ScienceDirect
Transportation Research Part F journal homepage: www.elsevier.com/locate/trf
Driver fatigue and the law from the perspective of police officers and prosecutors q Igor Radun a,b,⇑, Jussi Ohisalo c, Jenni Radun a, Mattias Wahde b, Göran Kecklund d a
Human Factors and Safety Behavior Group, Institute of Behavioral Sciences, University of Helsinki, Helsinki, Finland Department of Applied Mechanics, Chalmers University of Technology, Göteborg, Sweden c Faculty of Law, University of Helsinki, Helsinki, Finland d Stress Research Institute, Stockholm University, Stockholm, Sweden b
a r t i c l e
i n f o
Article history: Received 16 April 2012 Received in revised form 10 January 2013 Accepted 10 January 2013
Keywords: Driver fatigue Sleepiness Drowsiness Traffic law Traffic police Prosecutors
a b s t r a c t Even though police officers and prosecutors play a key role in traffic law application, little is known about their experiences, attitudes, and opinions regarding the complex issue of driver fatigue and the law. This paper is based on an extensive online survey collected from traffic (N = 129) and local (N = 100) police officers and prosecutors (N = 96) in the context of Finnish traffic law, which forbids driving while fatigued in an article relating to a driver’s fitness to drive. While encountering fatigued drivers is very common for police officers, only a small proportion has received training about how to recognize and deal with fatigued drivers. Driving while extremely fatigued is considered rather or extremely negligent behavior by almost all respondents. Although agreement between these three groups exists regarding several issues, they disagree about whether the current law is specific enough, and whether experts might be valuable in court when discussing the possible contribution of fatigue to the cause of a crash. We discuss the application of the law and opinions about the current law formulation, experience and education, as well as general awareness and attitudes, taking into consideration the different nature of police and prosecutor work. Ó 2013 Published by Elsevier Ltd.
1. Introduction Despite the high prevalence and serious consequences of driving while fatigued or sleepy (Horne & Reyner, 1999), there has been little success in addressing this issue in the law (Jones et al., 2005). The main reasons for this failure are the blurred concept of fatigue, the inexistence of a validated and reliable device for detecting the level of sleepiness (cf. the breath analyzer for alcohol levels), and the lack of clear and objective criteria for recognizing the contribution of fatigue/sleepiness to crash causation. Furthermore, given that ‘‘voluntary conduct is central to criminal responsibility’’ (McCutcheon, 1997), there are obvious difficulties in prosecuting drivers who cause a crash while asleep. Although there have been attempts to operationalize driver fatigue in terms of hours without sleep (Maggie’s Law in the state of New Jersey, US), this approach has not been widely accepted, even in other US states (National Sleep Foundation, 2008). In countries such as Australia and the UK there has been much discussion about whether the existing legislation
q
Disclosure statement: No significant financial interest/other relationship to disclose.
⇑ Corresponding author. Address: Human Factors and Safety Behavior Group, Institute of Behavioral Sciences, P.O. Box 9, 00014 University of Helsinki, Finland. Tel.: +358 9 19129423; fax: +358 9 19129422. E-mail address: igor.radun@helsinki.fi (I. Radun). URL: http://www.mv.helsinki.fi/home/radun (I. Radun). 1369-8478/$ - see front matter Ó 2013 Published by Elsevier Ltd. http://dx.doi.org/10.1016/j.trf.2013.01.001
160
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
should be changed to clearly incorporate falling asleep while driving and driver fatigue (House of Commons, 2006; Tasmania Law Reform Institute, 2007; Victorian Government, 2004). In traffic laws in the Nordic countries, fatigue is mentioned in articles addressing the driver’s fitness to drive. For example, Swedish traffic law says, ‘‘Vehicles may not be driven by a person who, due to illness, fatigue, intoxication by either alcohol, other stimulants, or sedatives, or for any other reason, cannot operate the vehicle in a safe manner’’ (unofficial translation). A similar formulation exists in the Finnish Road Traffic Act (RTA; Article 63): ‘‘A person that does not meet the requirements for driving because of illness or tiredness or another similar reason or whose health condition no longer fulfills the requirements needed for granting a driver’s license must not drive a vehicle’’ (unofficial translation). Such law formulations obviously do not specify how fatigued is too fatigued. Given that there are no clear guidelines on how to apply this law in practice, it is somewhat surprising that the Finnish police and courts punish a number of drivers under the article that forbids driving while fatigued (Radun & Radun, 2009). However, practically no studies exist on police officers’ and prosecutors’ understanding on how to apply this law in practice. Furthermore, studies on police officers regarding their experiences with fatigued drivers are rare. The notion pointed out by Lyznicki, Doege, Davis, and Williams (1998, p. 1909) 15 years ago still stands today: ‘‘Little is known about police training to recognize sleepiness as a cause of crashes or the criteria they use for reporting this factor.’’ The Canadian Traffic Injury Research Foundation (TIRF) has carried out one of the most extensive surveys; however, the results have been only briefly presented (Robertson, Holmes, & Vanlaar, 2009) and a full report has yet to be published. (At the time of preparing our study, we were unaware of this Canadian study.) Therefore, the purpose of this study was to investigate police officers’ and prosecutors’ experiences in tackling fatigued drivers, as well as their attitudes and opinions about fatigued driving and the current law. 2. Method 2.1. Data In view of the small number of prosecutors (around 340) and traffic police officers (around 400) in Finland, all were invited to participate in the study, which took place in 2009. The invitations, which pointed to an online questionnaire, were sent via the general prosecutor’s office and traffic police officials, and the response rate was around 30%. In Finland, it is often the case that local police officers, rather than traffic police, play a major part in the investigation of road traffic crashes. Hence, the invitation e-mail was also sent to all 24 police departments in Finland, with a request to ask local police officers who are involved in traffic surveillance and crash investigation to participate in the study. Responses were received from 96 prosecutors, 129 traffic police officers, and 100 local police officers with experience of traffic surveillance and crash investigation. In addition to structured questions, the questionnaire allowed the respondents to add their own comments in connection with the questions. A report in Finnish was recently published (Radun, Ohisalo, & Radun, 2010). Parts of this extensive questionnaire have been published in English (Radun, Ohisalo, Radun, & Kecklund, 2011; Radun, Ohisalo, Radun, & Rajalin, 2012), but the data presented here is new. 2.2. The law In Finland, road safety is covered by several acts and decrees, the most important of which is the Road Traffic Act (RTA). Together with the Penal Code (PC), this act defines penalties for traffic offenses. However, only the PC specifies crimes that lead to imprisonment. For minor traffic offenses, fixed fines are used, but the most common form of punishment is a day-fine (from 1 to 120 units). Since being introduced in 1921, the system of day-fines has been used as a form of punishment for all kinds of offenses. In the case of day-fines, the amount to be paid depends on the monthly income and total assets of the offender (Joutsen, Lahti, & Pölönen, 2001). An important issue regarding Article 63 of the RTA, which explicitly prohibits driving while tired, is that breaking it constitutes a traffic violation (RTA, Art. 103) that, by default, leads to a fine or a day-fine punishment. If a police officer issues a day-fine punishment, this has to be approved by the prosecutor, and this is also the case if a driver objects to a fine. Depending on the severity of the offense, a fatigued driver can, instead of a traffic violation (RTA, Art. 103), be charged either with endangering traffic safety (RTA, Art. 98; PC, Ch. 23, Sec. 1) or possibly with gross endangering of traffic safety (RTA, Art. 99; PC, Ch. 23, Sec. 2). These charges are more serious, leading to criminal responsibility, and possibly resulting in imprisonment. 2.3. Data analysis The Chi-square test was used to assess the agreement between three groups: prosecutors (Pr), and local (LP) and traffic (TP) police officers. In some cases, when there was no statistical significant difference between these three groups, local and traffic police officers were treated as one group (LP + TP) and then compared with the prosecutors. The results are presented separately for the law application and opinions about the current law formulation, experience and education, as well as general awareness and attitudes.
161
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
3. Results 3.1. Law application and opinions about the current law formulation In most of the questions addressing these issues, there is a difference between police officers and prosecutors. They disagree about whether experts might be valuable in court when discussing a possible fatigue contribution to the cause of a crash (v2 = 42.35, df = 8, p < 0.001; Fig. 1), whether the current law about driver fatigue should be more explicitly defined (v2 = 11.91, df = 4, p < 0.05; Table 1), and whether is important to establish whether a clearly drunk driver fell asleep or not (v2 = 54.23, df = 8, p < 0.001; Fig. 2). These three groups do not differ regarding whether is impossible to define driver fatigue in the law without fatigue detecting devices (v2 = 9.63, df = 8, p > 0.05; Police (LP + TP) vs. prosecutors v2 = 2.09, df = 4, p > 0.05; Fig. 3). Local and police officers disagree about whether adequate attention in investigation is given to establishing whether the driver was tired or asleep at the wheel (v2 = 12.35, df = 4, p < 0.05; Fig. 4). They also disagree about what would they do with a driver guilty of a minor fatigue-caused traffic violation (v2 = 26.57, df = 4, p < 0.001; Table 2). The respondents also offered a number of actions they would take in this kind of situation. Their actions can be roughly grouped into those completely forbidding driving (e.g., ‘‘I’d demand that a person aborts the trip’’), ordering a rest (‘‘I’d order a person to rest at the nearest bus stop’’), discussing the risks of driving while fatigued (‘‘I’d discuss the risks of driving while fatigued’’), and reminding the driver that the law forbids fatigued driving. 3.2. Experience and education Almost every police officer (96%) has stopped a driver because of suspected intoxication, only to discover that fatigue, not alcohol, was the cause of suspicious driving. This is an example given by a local police officer: ‘‘I followed a car drifting between his own and an oncoming lane. I was sure it was aggravated drunk driving, but it was a renovation man who was returning from a long working day. He repeatedly nodded off until he finally woke up stranded in a ditch.’’ Two-thirds (66%) of traffic and four out of five (79%) local police officers investigated a crash in which the driver was suspected of having fallen asleep. Similarly, 69% of prosecutors had a case of a driver suspected of falling asleep and causing a crash. Only 23% of traffic and 8% of local police officers have received training about fatigue in traffic. The great majority (95%) of police officers receiving such training found it useful, while 80% of those without such training believe that such training would be beneficial for them. One local police officer commented: ‘‘I do not think police pay enough attention to fatigue in traffic. This is partly due to a lack of education.’’ 3.3. General awareness and attitudes Around 70% of police officers and more than 80% of prosecutors believe that a normal healthy person cannot fall asleep behind the wheel without experiencing increased sleepiness beforehand (v2 = 14.00, df = 8, p = 0.059; Police (LP + TP) vs. prosecutors v2 = 4.40, df = 4, p > 0.05; Fig. 5). A large majority (75–85%) of police officers disagree that compared to the risk of drunk driving, fatigued driving is a minor problem, while significantly fewer prosecutors disagree with the statement (v2 = 28.24, df = 8, p < 0.001; Fig. 6). All three groups rated driving while extremely tired as the most negligent behavior in the list of seven different risky driving behaviors (Fig. 7). There were no significant differences between the three groups in rating any of these seven risky driving behaviors. The only difference was found in texting while driving when police officers (treated as one group) were compared to prosecutors (v2 = 7.04, df = 2, p < 0.05).
completely disagree
somewhat disagree
in between
somewhat agree
completely agree
70%
90%
Prosecutors
Local police
Traffic police 0%
10%
20%
30%
40%
50%
60%
80%
100%
Fig. 1. Distribution of responses to the statement: ‘‘Experts might be valuable in court when discussing a possible fatigue contribution to the cause of a crash.’’
162
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
Table 1 Distribution of responses to the question: ‘‘Should this law be more explicitly defined?’’
Yes, the current definition is too vague No, the current definition is specific enough Cannot say
completely disagree
Traffic police N = 127
Local police N = 99
Prosecutors N = 96
69 (54.3%) 40 (31.5%) 18 (14.2%)
48 (48.5%) 39 (39.4%) 12 (12.1%)
32 (33.3%) 51 (53.1%) 13 (13.5%)
somewhat disagree
in between
somewhat agree
completely agree
70%
90%
Prosecutors
Local police
Traffic police p 0%
10%
20%
30%
40%
50%
60%
80%
100%
Fig. 2. Distribution of responses to the statement: ‘‘If a driver who causes a crash is clearly drunk, it is not very important to establish whether he fell asleep or not.’’
completely disagree
somewhat disagree
in between
somewhat agree
completely agree
70%
90%
Prosecutors
Local police
Traffic police 0%
10%
20%
30%
40%
50%
60%
80%
100%
Fig. 3. Distribution of responses to the statement: ‘‘Without fatigue detecting devices defining driver fatigue in the law is impossible.’’
completely disagree
somewhat disagree
in between
somewhat agree
completely agree
70%
90%
Prosecutors
Local police
Traffic police 0%
10%
20%
30%
40%
50%
60%
80%
100%
Fig. 4. Distribution of responses to the statement for prosecutors: ‘‘The police rarely pay sufficient attention in the investigation whether the driver was tired or asleep at the wheel’’ and for police officers: ‘‘In the investigation adequate attention is rarely given to whether the driver was tired or asleep at the wheel.’’
4. Discussion To our knowledge, this is the first study where a large number of different criminal justice professionals was surveyed about the law that forbids driving while fatigued. Furthermore, the collected data allows us to discuss how police officers deal with fatigued drivers. In our discussion, we often refer to a Canadian study (Robertson et al., 2009), as its results, although only briefly presented, are relevant to our discussion and the generalizability of our results.
163
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
Table 2 Distribution of responses to the question: ‘‘Let us assume that the driver is only guilty of a minor traffic violation, but it seems that the violation was due to fatigue. What would you do in this situation?’’
Only a verbal warning A written notice A fine A day-fine Start an investigation/a pre-trial Total
Traffic police N (%)
Local police N (%)
Total N (%)
45 (35.7%) 31 (24.6%) 10 (7.9%) 32 (25.4%) 8 (6.3%) 126 (100.0%)
69 (69%) 10 (10%) 7 (7%) 10 (10%) 4 (4%) 100 (100.0%)
114 (50.4%) 41 (18.1%) 17 (7.5%) 42 (18.6%) 12 (5.3%) 226 (100.0%)
completely disagree
somewhat disagree
in between
somewhat agree
completely agree
70%
90%
Prosecutors
Local police
Traffic police 0%
10%
20%
30%
40%
50%
60%
80%
100%
Fig. 5. Distribution of responses to the statement: ‘‘Generally speaking, a normal healthy person cannot fall asleep behind the wheel without experiencing increased sleepiness beforehand.’’
completely disagree
somewhat disagree
in between
somewhat agree
completely agree
70%
90%
Prosecutors
Local police
Traffic police 0%
10%
20%
30%
40%
50%
60%
80%
100%
Fig. 6. Distribution of responses to the statement: ‘‘Compared to the risks of drunk driving, fatigued driving is a minor problem.’’
4.1. Law application and opinions about the current law formulation The way police officers (and consequently prosecutors) handle drowsy drivers mostly depends on whether fatigue and sleepiness are addressed in the law, and if so, how they are defined and what are the prescribed punishments. As mentioned before, Finnish traffic law forbids driving while fatigued only on a general level without specifying what degree of fatigue is too fatigued. An additional problem is the lack of guidelines regarding the practical application of this law. Despite these deficiencies, the Finnish police and courts punish a number of fatigued drivers every year (Radun & Radun, 2009). However, given that only a very small proportion of these drivers (3.1% in 2004–2005) officially deny being tired or falling asleep (Radun & Radun, 2009), it is reasonable to ask how many drivers every day are suspected of being fatigued but never charged or punished on that basis because of their strong denial of such a possibility. In such cases, police officers and prosecutors might face serious difficulties in proving otherwise. Nevertheless, it might be that not too many drivers object to the accusation of being fatigued when causing a crash because the final punishment will not be considerably different (usually only in the number of day-fines) even if a crash results in fatalities. Punishments for traffic offenses in Finland are generally low (Joutsen et al., 2001), and punishments for driving while fatigued are not different in this respect. On the other hand, it seems obvious that drivers causing a fatal crash are more likely to deny being fatigued or falling asleep in order to avoid taking clear personal responsibility (Radun & Radun, 2009). A strong denial can be expected more often in cases prosecuted under Maggie’s law in the state of New Jersey, US, which prescribes a sentence of up to 10 years in prison for a driver that causes a fatal crash while being 24 h without sleep. Although this law precisely defines ‘‘how fatigued is too fatigued’’ and police officers have a clear goal of establishing
164
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
Not at all
Talking on a mobile phone while driving
TP LP Pr
Driving after drinking two beers
TP LP Pr
Exceeding (>30km/h) the speed limit on a highway
TP LP Pr
Texting while driving
TP LP Pr
Driving with a hangover
TP LP Pr
Undertaking
TP LP Pr
Driving while extremely tired
TP LP Pr
0%
Somewhat negligent
20%
40%
Rather negligent
60%
Very negligent
80%
100%
Fig. 7. Distribution of responses to the question: ‘‘How negligent is the following driving behavior?’’
whether the driver has gone without sleep for 24 consecutive hours, it is easy to imagine that investigating police officers would have a difficult task if the driver strongly denies such a possibility. Can we expect police officers (and prosecutors) to invest a lot of energy and time in something that is so difficult to prove and/or if prescribed penalties are small? As we can see in Fig. 2, about 30% of traffic police and 50% of local police officers, and more than 70% of prosecutors believe that if a driver is clearly drunk it is not important to establish whether he fell asleep or not. Under the Finnish law, prescribed sentences for drunk driving are much higher than can be expected for a driver who falls asleep while driving. It should be noted here that the large differences between police officers and prosecutors on this issue probably exist because the work of police officers, in addition to investigation for legal purposes, also includes a traffic safety component (see also the Section 4.2). A similar explanation based on work task differences between police officers and prosecutors might be applied to differences on the question whether experts might be valuable in court when discussing a possible fatigue contribution to crash causation (Fig. 1). In the eyes of the prosecutor, it just might not be cost-effective to invite such expert witnesses if the outcome of the verdict will not be significantly different (usually only in terms of day-fines). The value of using such expert witnesses in assessing the role of fatigue and sleepiness in crash causation has been repeatedly mentioned in the literature (Jones, Dorrian, & Dawson, 2003; Rajaratnam & Jones, 2004). On the other hand, many of our respondents, especially traffic police officers, believe that not enough attention is given in crash investigations whether the driver was tired or asleep at the wheel (Fig. 4). How local and traffic police officers would deal with a driver that is suspected of a fatigue-related minor traffic offense (Table 2) is again a natural reflection of the nature of their work duties. Given that traffic surveillance is a major part of traffic police officers’ work while local police officers have a variety of other duties, it seems expected that traffic police officers are more likely to issue a written notice or fine the driver than local police officers. Similar to Finnish local police officers, 69.2% of Canadian police officers would give a warning to a driver who appeared to be drowsy after having been stopped by them (Robertson et al., 2009). About one third of Canadian police officers would charge the driver with a provincial offence; 4.6% would charge the driver with a criminal offence; and 3.2% would make an arrest (Robertson et al., 2009). In freely written comments, the respondents in our survey offered several other measures, such as completely forbidding driving, ordering a rest, and discussing the risks of driving while fatigued (including the reminder that the law forbids fatigued driving). Among Canadian police officers, 62% would organize alternative transportation (Robertson et al., 2009). It is obvious that without fatigue (or sleepiness) detectors, it is not easy to define fatigue in operationalized terms by law. Fig. 3 shows that our respondents are divided on this issue whether without such a device it is possible to legally define fatigue. Despite the fact that there is no difference between police officers and prosecutors on this question, these three groups differ on whether this particular law should be changed (Table 1). Police officers more often than prosecutors believe that the current definition is too vague. Similarly, police officers are more often in favor than against a Maggie’s law type of law that defines the critical limit of driver fatigue in terms of 24 consecutive hours of wakefulness, while prosecutors are largely against it (Radun et al., 2012).
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
165
4.2. Experience and education Nearly all police officers (96.1%) in our survey have mistakenly stopped a fatigued driver instead of an expected drunk driver. A corresponding figure from the Canadian study is 92.4% (Robertson et al., 2009). This striking similarity not only indicates that police officers in different parts of the world have similar experiences concerning fatigued drivers, but also that fatigued drivers might drive in a similar manner as drunk drivers and thus pose a serious safety problem for themselves and other participants in traffic. More than two-thirds of both police officers and prosecutors have investigated a crash in which the driver was suspected of having fallen asleep. However, only every sixth police officer has received training about how to recognize fatigued drivers. It is difficult to predict whether receiving such training would produce better results in detecting (and punishing) fatigued drivers or those who fall asleep while driving, but almost all (95%) of police officers that had participated in such training found it useful, while 79.6% of those without training regarding fatigue detection believed that such training would be beneficial for them. In the Canadian survey, more than half of police officers ‘‘felt that they had not received adequate information about ways to identify drivers who are drowsy or fatigued or to determine the role of fatigue in crashes’’ (Robertson et al., 2009). A more positive example regarding the training of police officers comes from Queensland, Australia. There, the education for police officers investigating road crashes includes training on how to recognize the signs of fatigue-related crashes (Queensland Parliamentary Travelsafe Committee, 2005). According to the instructions, some of these signs are ‘‘the lack of braking or evasive tactics prior to the crash,’’ ‘‘a vehicle traveling straight ahead prior to the crash,’’ ‘‘the movements of the driver in the 36 h leading up to the crash (including his/her work hours, workload, recreational activities and hours of sleep), ‘‘the medical history of the drivers, for instance the presence of sleep apnea,’’ etc. We are unaware of reports about the effectiveness of this training. The way police officers investigate crashes and report on causal factors is naturally influenced by current developments in safety research and practices. As pointed out by Ogden and Moskowitz (2004, p. 186), ‘‘Police descriptions of crashes are typically assigned to the cause of current interest.’’ This is illustrated by the example how the same type of crashes at T-intersections were once classified as loss-of-control crashes, while nowadays they are considered inattention-related crashes ‘‘although there is no evidence that driver behavior has changed’’ (Ogden & Moskowitz, 2004, p. 186). Such influences may come from more implicit (increased discussion about certain crash-causal factors, media attention, academic research etc.) or explicit sources (e.g., guidelines or manuals for police officers). Although reports about driver fatigue appeared already in the 1920s (Horstmann, Hess, Bassetti, Gugger, & Mathis, 2000), it is only during the last two decades that fatigue- and sleepiness-related research has intensified. This increased research interest was also accompanied by an increase in safety campaigns targeting fatigue-related safety risks (Donovan, Jalleh, & Henley, 1999; Fletcher, McCulloch, Baulk, & Dawson, 2005). However, as usually happens, the focus fluctuates between many traffic safety issues. A small but interesting example of such change regarding the attention given to the fatigued driving is the development of a home page of the NTHSA (National Highway Traffic Safety Administration), an influential governmental organization in the US. While for several years, among other topics, drowsy and distracted driving were grouped together, since 2010 drowsy has been dropped, and now distracted driving stands alone among driving safety topics (snapshots retrieved from web archive http://www.archive.org/web). Similarly, it seems that the enthusiasm following the introduction of Maggie’s law that defines a fatigued driver as anyone who has been awake for more than 24 consecutive hours has somewhat faded away. Although this law still attracts a lot of attention by the scientific community and media, there are no indications that legislation in other countries or in US states would adopt such a law in the near future (National Sleep Foundation, 2008). However, this is obviously due to more objective reasons given the complexity of addressing driver fatigue in the law. On the other hand, one of the most explicit influences on police officers’ work is the design of police crash report forms. In 2008 in the US, all but one state (Missouri) had fatigue or sleepiness on police crash investigation forms (National Sleep Foundation, 2008), which was not the case in the early 1990s (Knipling & Wang, 1994). In Finland, as in many other countries, causal factors are not routinely recorded for non-fatal crashes (Horne & Reyner, 1999). There are even large differences within the EU regarding fatal crashes, although some attempts are currently under way to standardize the process of data collection for the European fatal accident database (Morris et al., 2010).
4.3. General awareness and attitudes Given that almost all of our participants find driving while extremely tired as rather or very negligent behavior (Fig. 7), it is somewhat surprising that every sixth police officer and every tenth prosecutor disagree with the statement that a normal healthy person cannot fall asleep behind the wheel without experiencing increased sleepiness beforehand (Fig. 5). An additional 10% of the participants are undecided on this matter. It is generally accepted that sleep attacks are not characteristic of healthy individuals (Horne & Baulk, 2004). However, a very recent study reported that sleep-deprived healthy subjects can fall asleep without experiencing sleepiness (Herrmann et al., 2010), although such interpretation of the data has been challenged (Anund & Åkerstedt, 2010). Whether people can indeed fall asleep without experiencing any sleepiness beforehand is a central question concerning legal implications. From
166
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
the legal point, it is crucial whether a driver falls asleep without any warning or whether he or she consciously decides to ignore the warning signs and continues to drive knowing that such action endangers traffic safety. Compared to the risk of drunk driving, fatigued driving is not seen as a minor problem by the majority of police officers, while surprisingly more than 20% of prosecutors (+20% undecided) are of the opposite opinion (Fig. 6). Again, it might be that prosecutors have this kind of opinion because the number of fatigue-related traffic offenses they handle every year is much smaller than the number of drunk driving cases, while police officers have more experience with fatigued drivers on the road. Furthermore, many police officers have themselves experienced fatigue while driving during long night shifts and are consequently more aware of the dangers of driving while tired (Radun et al., 2011). 4.4. Limitations of the study The data used in this study was collected from the population rather than from a sample of state prosecutors and traffic police officers. This approach was adopted because the total number of prosecutors and traffic police officers in Finland is quite small. The participation level of around 30% was considered satisfactory for this kind of extensive survey. On the other hand, it was practically impossible to find out how many local police officers around Finland are involved in traffic surveillance and crash investigating processes. Therefore, the exact response rate for this group remains unknown. As in any similar survey study, the issue of self-selection bias occurs: those who are more interested in fatigue issues were probably more likely to respond to our invitation and complete the survey. However, although about 30% of the prosecutors reported not having a case in which the driver has been suspected of falling asleep and causing a crash, they nevertheless did respond to our survey. Finally, the fact that the topic of the survey was driving while fatigued and the law probably had some influence on how the respondents answered some questions (e.g., see Fig. 7). 4.5. Final comments Our study provides further evidence that it is common for police officers and prosecutors to encounter fatigued drivers. However, given the difficulties in proving that a driver was unfit to drive or caused an accident due to fatigue, it is natural that not all of such drivers are detected and fined by police officers or that they come to the attention of prosecutors. This might be especially true if the effort police officers and prosecutors have to invest in proving the role or the level of driver fatigue continues to be disproportionally higher than the final punishment. Whether and how these problems could be overcome needs further investigations. Nevertheless, despite no validated results, the improved training of police officers seems promising given the positive feedback of police officers participating in such training. Acknowledgements The data for this study came from a project on fatigue and the law, supported by the Central Organization for Traffic Safety (Liikenneturva), the Traffic Safety Committee of Insurance Companies (VALT), the Finnish Vehicle Administration (AKE), the Finnish Taxi Owners Federation (Taksiliitto), and the Finnish Transport and Logistics Organization (SKAL). The Henry Ford Foundation, VALT, and Liikenneturva provided financial support to the first author. This funding has been greatly appreciated. References Anund, A., & Åkerstedt, T. (2010). Perception of sleepiness before falling asleep. Sleep Medicine, 11, 743–744. Donovan, R. J., Jalleh, G., & Henley, N. (1999). Executing effective road safety advertising: Are big production budgets necessary? Accident Analysis and Prevention, 31, 243–252. Fletcher, A., McCulloch, K., Baulk, S. D., & Dawson, D. (2005). Countermeasures to driver fatigue: A review of public awareness campaigns and legal approaches. Australian and New Zealand Journal of Public Health, 29, 471–476. Herrmann, U. S., Hess, C. W., Guggisberg, A. G., Roth, C., Gugger, M., & Mathis, J. (2010). Sleepiness is not always perceived before falling asleep in healthy, sleep-deprived subjects. Sleep Medicine, 11, 747–751. Horne, J. A., & Baulk, S. D. (2004). Awareness of sleepiness when driving. Psychophysiology, 41, 161–165. Horne, J., & Reyner, L. (1999). Vehicle accidents related to sleep: A review. Occupational and Environmental Medicine, 56, 289–294. Horstmann, S., Hess, C. W., Bassetti, C., Gugger, M., & Mathis, J. (2000). Sleepiness-related accidents in sleep apnea patients. Sleep, 23, 383–389. House of Commons, Transport Committee (2006). Roads Policing and Technology: Getting the right balance. Tenth Report of Session 2005–06. The Stationery Office Limited, London. Jones, C. B., Dorrian, J., & Dawson, D. (2003). Legal implications of fatigue in the Australian Transportation Industries. Journal of Industrial Relations, 45, 344–359. Jones, C. B., Dorrian, J., & Rajaratnam, M. W. (2005). Fatigue and the Criminal law. Industrial Health, 43, 63–70. Joutsen, M., Lahti, R., & Pölönen, P. (2001). Criminal justice systems in Europe and North America: Finland. European Institute for Crime Prevention and Control, affiliated with the United Nations. Helsinki, Finland. Knipling, R. R., & Wang, J. S. (1994). Research Note: Crashes and Fatalities Related to Driver Drowsiness/Fatigue. Washington: National Highway Traffic Safety Administration. Lyznicki, J. M., Doege, T. C., Davis, R. M., & Williams, M. A. (1998). Sleepiness, driving, and motor vehicle crashes. Jama-Journal of the American Medical Association, 279, 1908–1913. McCutcheon, J. P. (1997). Involuntary conduct and the case of the unconscious driver: Reflections on Jiminez. Criminal Law Journal, 21, 71–79. Morris, A., Brace, C., Reed, S., Fagerlind, H., Bjorkman, K., Jaensch, M., et al (2010). The development of a European fatal accident database. International Journal of Crashworthiness, 15, 201–209.
I. Radun et al. / Transportation Research Part F 18 (2013) 159–167
167
National Sleep Foundation (2008). State of the States Report on Drowsy Driving. Washington, D.C.: National Sleep Foundation. Ogden, E. J., & Moskowitz, H. (2004). Effects of alcohol and other drugs on driver performance. Traffic Injury Prevention, 5, 185–198. Queensland Parliamentary Travelsafe Committee (2005). Driving on empty: Fatigue driving in Queensland. Legislative Assembly of Queensland, Parliamentary Travelsafe Committee. Radun, I., Ohisalo, J., Radun, J. E., & Kecklund, G. (2011). Night work, fatigued driving and traffic law: The case of police officers. Industrial Health, 49, 389–392. Radun, I., Ohisalo, J., & Radun, J. E. (2010). Väsymys tieliikenteessä ja laki: lainsoveltajien näkökulma [Fatigued driving and the law: Prosecutors’ and police officers’ views]. Liikenneturvan tutkimusmonisteita, 110/2010. Radun, I., Ohisalo, J., Radun, J. E., & Rajalin, S. (2012). Law defining the critical level of driver fatigue in terms of hours without sleep: Fatal accident data and criminal justice professionals’ opinions. International Journal of Law, Crime and Justice, 40, 172–178. Radun, I., & Radun, J. E. (2009). Convicted of fatigued driving: Who, why and how? Accident Analysis and Prevention, 41, 869–875. Rajaratnam, S. M. W., & Jones, C. B. (2004). Lessons about sleepiness and driving from the Selby Rail Disaster Case: R v Gary Neil hart. Chronobiology International, 21, 1073–1077. Robertson, R., Holmes, E., & Vanlaar, W. (2009). The facts about fatigued driving in Ontario: A guidebook for police. Traffic Injury Research Foundation. Tasmania Law Reform Institute (2007). Criminal liability of drivers who fall asleep causing motor vehicle crashes resulting in death or other serious injury, Issues Paper No.12. Victorian Government, Department of Justice, 2004. Culpable and dangerous driving laws, Discussion Paper.