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April 2013 , Page 44 

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DWI

By David S. Katz

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ADHD and Driving — A Recipe for False DUI Convictions

How many times has an investigating officer stated in a police report that the client “did not stop at the stop sign,” “pulled into traffic inappropriately,” “merged dangerously,” or “crossed the lane lines”? Maybe the officer claimed in the report that the client was unable to perform the field sobriety tests for a number of reasons, such as the client (1) did not pay attention, (2) made careless mistakes, (3) did not listen to or follow instructions, or (4) could not stand still. The officer may have indicated the client was reluctant to perform field sobriety tests, interrupted during instructions, or started tests too soon. Perhaps the client performed the tests incorrectly, made an improper turn, or did not count out loud as instructed. While it is true that courts throughout this country have allowed these signs to be considered as indicators of impairment, there are myriad other potential causes for these behaviors. Rather than accept that impairment by intoxicants is the cause, it is the responsibility of the DUI practitioner to determine other plausible explanations.

Attention-Deficit/Hyperactivity Disorder (ADHD) is one such possible explanation. Attention Deficit Disorder (ADD), with or without hyperactivity, is the older term used in previous editions of the Diagnostic and Statistical Manual of Mental Disorders.1  

Although generally thought of as a childhood disability, ADHD affects up to 80 percent of those diagnosed as a child into adolescence2 and up to 66 percent into early adulthood.3 According to the American Psychiatric Association, 4.1 percent of adults suffer from ADHD.4 ADHD symptoms include poor sustained attention or persistence, distractibility, impaired impulse control, and hyperactivity,5 all of which have been found to significantly contribute to traffic accidents and infractions. Moreover, other conditions that frequently occur in combination with ADHD, such as excessive anger (road rage), aggression and risk taking,6 also lead to higher accident and fatality rates.

Drivers With ADHD More Likely to Be Stopped

In March 2012, the New York Times published Learning to Drive With A.D.H.D., an article in which it was reported that “young drivers with ADHD are up to four times more likely as those without the condition to have an accident, meaning that they are at a higher risk of wrecking a car than an adult who is legally drunk.”7 The article related stories of young drivers’ difficulties in learning to drive. In one such case a 16-year-old female driver had extreme difficulty trying to follow a string of directions given to her by her father while preparing to back out of their driveway. In her confused and flustered state, she accidently hit the gas instead of the brake and ended up in a creek next to her house. The string of directions given to her by her father can easily be compared to the string of directions given to a driver for field sobriety tests during a DUI traffic stop. Arguably, this same driver, at some point in the future, may have the same difficulty in following directions if being investigated for DUI, especially when the directions are given to her in a rapid manner from a police officer trying to assess her performance on the walk and turn test, or other field test, in the middle of the night on the side of a dark highway.

In fact, people with ADHD are far more likely to be stopped by the police for traffic investigations than those without ADHD. The National Highway Traffic Safety Administration (NHTSA) prepared a report for the U.S. Department of Transportation in which it noted that childhood ADHD translated into a far greater percentage of individuals with ADHD who received traffic citations during their driving years.8 Several studies have been conducted that compared a group of drivers who were diagnosed with ADHD to a control group without ADHD. Among other findings, these studies showed that the group with ADHD in comparison with the control group without ADHD was more likely to drive without a license (37 percent — 11 percent), have their license revoked (23 percent — 0 percent), be involved in multiple crashes (40 percent — 5.6 percent), be at fault in crashes (49 percent — 11 percent), receive traffic citations (77 percent — 47 percent) and have deficient driving skills (40 percent — 11 percent). 9 

In 1996, a study comparing drivers with ADHD to those without ADHD with no differences in driving knowledge showed that individuals in the ADHD group exhibited significantly more erratic control of a simulated motor vehicle and had a greater number of scrapes and crashes in a driving simulator. 10 In 2002, a larger study found that drivers with ADHD had more difficulty with attentiveness, impulse control and rule following,11 all of which had been previously noted in children with ADHD12 and are theorized to be contributing factors of the cause of more crashes and citations for drivers with ADHD.13 

In 2006, Russell Barkley and Daniel Cox published an authoritative article that compared and tracked results from numerous previous studies on ADHD and driving. The results of these studies clearly suggest that ADHD has an adverse impact on the operational or basic cognitive level necessary for driving, and that driver inattention, poor rule adherence, reduced inhibition, and deficient resistance to distraction may be mechanisms by which ADHD adversely impacts driving.14 

Indicators of Impairment

The above information about ADHD and driving demonstrates that drivers with ADHD are at risk of being stopped for a multitude of driving behaviors that are also commonly referred to by police officers as indicators of impairment, allegedly evidencing a DUI. NHTSA lists numerous indicators of impairment during the “Vehicle in Motion Phase” of a DUI investigation, almost all of which could be exhibited by a driver with ADHD as a direct result of the driver’s disability.

Listed below are NHTSA standardized clues of impairment during the “Vehicle in Motion Phase” of a DUI investigation that are easily explained as symptoms of drivers with ADHD who display inattentiveness, aggressiveness, and unnecessary risk-taking as part of their disability.

  1. turning with wide radius
  2. straddling center or lane marker
  3. almost striking an object or vehicle
  4. weaving
  5. driving on other than designated roadway
  6. swerving
  7. speed slower than 10 m.p.h. below limit
  8. following too closely
  9. drifting
  10. tires on center or lane marker
  11. braking erratically
  12. driving into opposing or crossing traffic
  13. slow response to traffic signals
  14. signaling inconsistent with driving actions
  15. stopping inappropriately
  16. turning abruptly or illegally
  17. accelerating or decelerating rapidly
  18. driving with headlights off

According to Tanya Mitchell, co-author of Unlock the Einstein Inside: Applying New Brain Science to Wake up the Smart in Your Child, there are three types of attention: (1) sustained — allows one to stay on task for a long period of time; (2) selective — prevents one from being easily distracted; and (3) divided — allows one to do more than one thing at a time.15 

In people with ADD, the frontal cortex of the brain has more difficulty using glucose and has less blood flow than in those without ADD.16 The frontal cortex inhibits impulses, initiates behavior, and controls working memory.17 When underactive, the ability to screen out irrelevant stimuli is reduced and the individual pays attention to everything, resulting in poor regulation of the motivation system and difficulty staying on task.18 All of this will affect a person’s abilities to concentrate on tasks and pay attention to instructions during life activities, including performing roadside tests at the request of law enforcement.

Applied to the DUI setting, clearly a person who is deficient in sustained attention would be unable to follow a long series of instructions, such as that given by an officer during the walk and turn exercise, and may lose interest in properly completing the exercise. Moreover, a person who is deficient in selective attention may not be able to pay attention to an officer and follow directions as they become distracted by other officers at the scene, passing cars, and flashing lights. Further, as field sobriety tests are designed to divide attention, a person with selective attention deficiencies may be unable to pay attention to staying in one position while being distracted by an officer waving something in front of his or her face or demonstrating the “proper” way to make a turn. Additionally, a person with divided attention deficiencies would be unable to properly perform multiple tasks at the same time, such as finding a driver’s license while being distracted by the officer’s questioning, maintaining a “starting position” while listening to instructions and watching a demonstration, or walking properly heel to toe while watching the feet and counting.

The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition lists common symptoms of ADHD, such as individuals often failing to pay close attention to details or making careless mistakes; often having difficulty sustaining attention to tasks; often not seeming to listen when spoken to directly; often failing to follow instructions carefully and completely; losing or forgetting important things; feeling restless; often fidgeting with hands or feet, or squirming; often talking excessively; often blurting out answers before hearing the entire question; and often having difficulty awaiting their turn.

Listed below are the “clues” or “indicators” of impairment officers look for in assessing a driver’s performance during standardized field sobriety tests. These clues and indicators closely resemble the symptoms of ADHD.

1. Often fails to give close attention to details or makes careless mistakes
a. Not touching heel to toe, but leaving a gap of an inch or two
b. Not performing a proper turn
c. Not keeping arms down at side
d. Not counting in the exactly proscribed manner

2. Difficulty sustaining attention to tasks
a. Walking the first nine steps and failing to complete the return nine
b. Looking away from foot during one leg stand
c. Doing the first nine steps correctly during the walk and turn, turning and walking back normally

3. Often does not seem to listen when spoken to directly
a. Driver did not pay attention to directions given
b. Although I explained the exercise, driver performed it incorrectly

4. Often fails to follow instructions carefully and completely
a. Moved head even though I told him to follow with eyes and eyes only
b. Opened eyes during finger to nose
c. Completes wrong number of steps
d. Puts foot down prior to 30 seconds and does not raise it again immediately

5. Loses or forgets important things
a. Could not find license, registration, or insurance

6. Feels restless, often fidgeting with hands or feet, or squirming
a. Could not stand still
b. Rocked backed and forth
c. Swayed

7. Often talks excessively
a. Defendant made spontaneous statements
b. Defendant talked the entire ride back to the police station

8. Often blurts out answers before hearing the whole question
a. Defendant kept interrupting me
b. Defendant would not let me finish reading implied consent
c. Defendant would not listen to instructions

9. Often has difficulty awaiting his or her turn
a. The defendant started the tests early on numerous occasions

The behaviors caused by ADHD can mimic behaviors that police officers observe in almost every case prior to a DUI stop. Problematically, these officers typically lack any medical training in the disease of ADHD. Therefore, they are not able to distinguish between the signs of this disability and the signs of impairment by intoxicants that they have been taught to look for, often mistaking one for the other.

Defenders Must Be Aware of ADHD Effects On Ability to Drive

A hypothetical can be used to show the difficulties a driver with ADHD might experience during a traffic stop. An officer, based on his limited training, sees an aggressive driver cut in front of another car to make a turn and then speeds down the road after making a wide turn at too great a speed. The officer proceeds to make a stop and approaches the driver’s window. If the officer believes that he or she smells alcohol on the driver’s breath (due to the one drink the driver may have had), the officer could easily believe he or she was dealing with an impaired driver. Moreover, if, when asked, the driver cannot produce a license in a timely manner because the officer keeps asking questions as the driver is looking for the license (which, as a result of the ADHD, distracts the driver from the original task), it is very likely that the officer will believe that further investigation is necessary. During the investigation, the officer decides to have the driver perform field sobriety tests. During the instructional phase, the driver keeps asking questions and interrupting the officer. Moreover, the officer must repeat the instructions numerous times because even though the driver has been told several times not to start until told to do so, the driver keeps starting the exercise early. There are additional specific problems: Although the driver is taking nine steps up and down the line, the driver is not paying attention to the details and not counting the correct way. Also, the driver is leaving a space between steps. With the addition of these problems to the other indicators the officer may see on the other tests — all of which were caused by the client’s ADHD — the officer will be convinced that the driver is impaired. Further, because the client may refuse to take the breath test due to the aggression and defiance that often accompany ADHD, the officer and prosecutor will be convinced that they have a drunk driver.

This simple example of an ordinary traffic stop emphasizes the need for the DUI practitioner to be aware of the effects that ADHD has on a client’s ability to operate a motor vehicle and perform roadside field sobriety tests. Clients who are diagnosed with ADHD provide the opportunity for a defense based on this disability. Further, the DUI practitioner should consider and discuss with the client the use of an expert in this field as part of a complete defense to the charge.

The DUI practitioner’s main focus is on defending the criminal charges against the client. Although not the focus of this article, when representing a client with a disability, such as ADHD, it is important to investigate whether the client may have an action for discrimination under the Americans with Disabilities Act of 1990 (ADA), which provides a national mandate for the elimination of discrimination against people with disabilities.

At least since the 2008 amendment to the ADA, ADHD is a covered disability. By failing to make mandatory a requirement that all persons under investigation for DUI (including those subject to field sobriety tests) be screened for disabilities including ADHD, the local police department may be committing an act of discrimination under the ADA. Pre-arrest DUI screening accommodations must be made for those with disabilities that take into account their limited abilities. ADHD is no less a disability than the loss of a limb. A police officer that required a defendant with only one leg to stand with his foot raised six inches off the ground and then arrested the defendant for falling would be discriminating in the same manner as an officer who arrests a person who cannot complete divided attention tests due to his or her ADHD. It would be interesting to investigate whether or not a cause of action could be maintained under the ADA or if the prospect of a cause of action could provide the leverage to get DUI charges against a client dropped. Additional research and the advice of a practitioner who specializes in actions under the ADA may add to the weapons a DUI practitioner has in his or her arsenal to help people who, due to their ADHD, are wrongly accused of the crime of DUI.

Notes

  1. This article uses the terms ADHD and ADD interchangeably. When quoting a source, the term used by the source has not been changed.
  2. R.A. Barkley, M. Fischer, C.S. Edelbrock & L. Smallish, The Adolescent Outcome of Hyperactivity Children Diagnosed by Research Criteria: An 8–Year Prospective Follow-up Study, 29(4) J. Am. Acad. Child & Adolescent Psychiatry 546-547 (1990).
  3. R.A. Barkley, M. Fischer, L. Smallish & K. Fletcher, The Persistence of Attention-Deficit/Hyperactivity Disorder Into Young Adulthood as a Function of Reporting Source and Definition of Disorder, 11(2) J. Abnormal Psychol. 279-289 (2000).
  4. American Psychiatry Association, ADHD by the Numbers, available at http://www.psych.org/mental-illness/key-topics/adhd (2012).
  5. R.A. Barkley & D. Cox, A Review of Driving Risks and Impairments Associated With Attention-Deficit/Hyperactivity Disorder and the Effects of Stimulant Medication on Driving Performance, 38 J. Safety Res. 113-128 (2006).
  6. N.R. Boyd & W.J. Huffman, The Relationship Between Emotional Maturity and Drinking-and-Driving Involvement Among Young Adults, 15 J. Safety Res. 1-6 (1984); J.E. Chliaoutakis, P. Demakakos, G. Tzarnolouka, V. Bakou, M. Koumaki & C. Darviri, Aggressive Behavior While Driving as Predictor of Self-Reported Car Crashes, 33(4) J. Safety Res. 431-443; J.L. Deffenbacher, R.S. Lynch, L.B. Filetti, E.R. Dahlen & E.R. Oetting, Anger, Aggression, Risky Behavior and Crash-Related Outcomes in Three Groups of Drivers, 41(3) Behav. Res. & Therapy 333-349 (2003).
  7. John O’Neil, Learning to Drive With A.D.H.D., N.Y. Times, Mar. 26, 2012.
  8. National Highway Traffic Safety Administration, Driving Histories of ADHD Subjects, 29 Annals of Emerging Medicine 546-547 (1997).
  9. R.A. Barkley, D.C. Guevremont, A.D. Anastopoulos, G.J. Du Paul & T.L. Shelton, Driving-Related Risks and Outcomes of Attention Deficit Hyperactivity Disorder in Adolescent and Young Adults: A 3- to 5-Year Follow-Up Survey, 92(2)Pediatrics 212-218 (1993). See also M. Fischer, R.A. Barkley, L. Smallish & K. Fletcher, Hyperactive Children as Young Adults: Driving Behavior, Safe Driving Abilities, and Adverse Driving Outcomes, 39 Accident Analysis and Prevention 94-105 (2007); N.M. Lambert, National Highway Traffic Safety Administration, Analysis of Driving Histories of ADHD Subjects, Pub. No. DOT HS 808 417 at 1-21 (1995).
  10. R.A. Barkley, K.R. Murphy & D. Kwasnik, Motor Vehicle Driving Competency and Risks in Teens and Young Adults With Attention Deficit Hyperactivity Disorder, 98 Pediatrics 1089-1095 (1996), citedby R.A. Barkley & D. Cox, A Review of Driving Risks and Impairments Associated With Attention-Deficit/Hyperactivity Disorder and the Effects of Stimulant Medication on Driving Performance. 38 J. Safety Res. 113-128 (2006).
  11. R.A. Barkley, K.R. Murphy, G.I. Dupaul & T. Bush, Driving in Young Adults With Attention Deficit Hyperactivity Disorder: Knowledge, Performance, Adverse Outcomes, and the Role of Executive Functioning, 8(5) J. Int’l Neuropsychological Soc’y 655-672 (2002).
  12. M.J. Briggs-Gowan, S.M. Horowitz, M.E. Schwab-Stone, J.M. Leventhal & P.J. Leaf, Mental Health in Pediatric Settings: Distribution of Disorders and Factors Related to Service Use, 39(7) J. Am. Acad. Child & Adolescent Psychiatry 841-849 (2000).
  13. Barkley, et al., supra note 11.
  14. R.A. Barkley & D. Cox, A Review of Driving Risks and Impairments Associated With Attention-Deficit/Hyperactivity Disorder and the Effects of Stimulant Medication on Driving Performance, 38 J. Safety Res. 113-128 (2006).
  15. Wendy Burt-Thomas, ADD/ADHD Non-Medicated Approaches to Improve Three Types of Attention Deficit, Eduguide (2010).
  16. Id. 
  17. Id. 
  18. Id.

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