Most of the discussion around enforcement in Portland these days is about fixed speed cameras and how engineering can create self-enforcing streets. Another piece of the puzzle is how to handle people who operate vehicles while drunk or high.
Driving (and biking, to a lesser degree) while intoxicated is a problem in Portland. From 2013 through 2017, nearly half of all Portland traffic deaths involved alcohol impairment. As we prepared this interview the Portland Police Bureau cited an 18-year-old intoxicated driver for reckless driving after he crashed his car into an ambulance and injured three people in the Laurelhurst neighborhood.
Kimberlyn Silverman is a Deputy District Attorney for Columbia County and Portland resident who’s made a name for herself for her approach to DUII (driving under the influence of intoxicants) cases. As a Portlander, she has lived through the same troubled year as the rest of us. She has skin in the game. As a prosecutor who works outside of Multnomah County, she provides the perspective and independence of an outsider.
In 2015 Silverman was named Oregon’s DUII Prosecutor of the Year in recognition of the work she did to set up Oregon’s first full-time “no refusal” program — an approach that makes it harder for suspects to refuse field sobriety tests. Since then, the program has been adopted by several other Oregon counties. In Portland, she volunteers as a public safety advocate and voice for victims of crime.
My conversations with Silverman have been edited for clarity and brevity. (Disclaimer: Nothing in this interview constitutes legal advice and Silverman is not speaking for any law enforcement agencies. All opinions are her own.)
BikePortland: What is a “no refusal” program and why is it important?
Silverman: No refusal is shorthand for an enforcement strategy that directs law enforcement to apply for a search warrant for breath, blood or urine from suspected impaired drivers who do not comply with state Implied Consent law and refuse to submit to testing.
The concept is this: All of the Standardized Field Sobriety Test — the breath tests, the Drug Recognition Expert (DRE) evaluations, urinalysis and blood draws — are done with the consent of the suspect. If the person won’t give actual consent to blow, pee in the cup, or submit to a blood draw, the no-refusal initiative requires the officer to apply for a search warrant at the time of refusal.
Although an impaired person’s performance of the Standardized Field Sobriety Tests (SFSTs) is great scientific evidence, people, including juries, judges, prosecutors and the defense like to see lab results on paper. When alcohol is the impairing substance, a breath test is sufficient. However, as the incidence of controlled substance and cannabis DUIIs are on the rise, urine and blood testing become much more important. For these intoxicants, urine, while it can provide corroborating evidence for a DRE’s observations, is more like a trash can. It tells us what substances a person has ingested, but not when the substance was ingested or when it impaired a person. Blood is better. With quantitative analysis of a blood sample from an impaired person close in time to operation of a vehicle, we can better understand what substance(s) affected the person at the time of driving.
“I told the other jurisdictions that they had no excuses. If tiny Columbia County can do it when we don’t even have a hospital, you can do it too.”
BikePortland: How did you set up the program?
Silverman: I got a like-minded Oregon State Police trooper, Billy Bush, fired up about it. Billy developed a warrant template, I got judicial buy-in to answer the phone in the middle of the night, secured seed money to start a bank account that would pay for a phlebotomist and Billy lined up a phlebotomy company that promised a one-hour response time to the county jail. The Columbia County Sheriff at the time authorized us to be under the umbrella of an existing non-profit and Billy found an accountant to act as bookkeeper and set up a computer at the jail so that officers could use it to write warrants. Billy and I trained every police agency in Columbia County on the warrant process (and another Trooper and I continue to do these trainings to this day).
Billy then trained law enforcement and DAs across the state at the 2016 DUII Conference. In my short speech, I told the other jurisdictions that they had no excuses. If tiny Columbia County can do it when we don’t even have a hospital, you can do it too.
BikePortland: What does this look like in the field?
“DUIIs are homicides waiting to happen.”
Silverman: What happens in a typical case where the driver isn’t hospitalized, is there’s a traffic stop or crash that leads to a DUII investigation. If the officer develops probable cause to arrest a driver for the crime of DUII, whether that probable cause came from observed indicators of impairment on the SFSTs or through other evidence like the person literally being falling-down drunk, the person is taken to the nearest intoxilyzer and offered a breath test. If the breath test is refused or the person’s blood alcohol content doesn’t match the level of impairment the officer is seeing, the officer will try to consult with a DRE. If there is no DRE available, or the suspect will not consent to further testing by the DRE, the officer will apply for a search warrant to seize blood from the suspect. Columbia County has guaranteed response time within an hour of the call to the phlebotomist. It then takes a few weeks for a lab to forensically analyze the sample and provide the District Attorney’s Office with a report.
BikePortland: That is quite a logistical accomplishment. What’s been the effect of this, and have other Oregon counties adopted the program?
Silverman: Prior to the 2016 DUII Multi-Disciplinary Training Task Force conference, when Billy trained other counties in the mechanics of no-refusal search warrants, the City of Beaverton Police Department adopted no-refusal as policy. Since then, Josephine, Wasco, Lane, Clackamas and Wallowa counties have recognized the importance of using the search warrant process to obtain the best evidence in DUII cases and taken their own action. The Oregon State Police have also been enthusiastic supporters of this program.
The no-refusal initiative in Columbia County has been a great success. When the best evidence of a crime is collected and not left to speculation, it helps alleviate the pressure on court dockets — fewer trials are needed. Fewer trials means savings on police overtime and fewer civilian witnesses are pulled from their jobs to testify under subpoena. We’ve also enjoyed an unanticipated benefit: In some places, especially those with larger police departments, like Portland, your average patrol officer doesn’t regularly write search warrants. They save that for detectives or officers in specialty units. Not in Columbia County. Because of this now standard practice, we have increased the versatility and capabilities of every single patrol officer.
BikePortland: Many no refusal counties and states around the country report that fewer suspects try to “beat the rap” when confronted with blood alcohol evidence, resulting in fewer trials and more convictions. And the NHTSA (National Highway Traffic Safety Administration) seems to support the program. However, it’s more difficult to find evidence that the program is successful as a deterrent to intoxicated driving, although I did find one study with proper statistics which shows that it is.
Do you have a sense of whether the Columbia County no refusal program actually deters intoxicated driving?
Silverman: Unfortunately, I don’t have a general sense of that and I don’t know that we’ll really be able to tell because so many crimes go unreported or undetected. At the same time, officer training with respect to controlled substance DUIIs has gotten better. Consequently, the number of impaired drivers could have gone down, but detection rates could have gone up. Too many uncontrolled variables. The only anecdotal tidbit I can attest to is that we began doing a yearly Sauvie Island DUII saturation patrol weekend after implementation of our no refusal program. Over the years, the number of DUII arrests have gone down significantly.
BikePortland: Do you have other thoughts on DUII and enforcement?
Silverman: In a place where there is robust, proactive DUII enforcement, we still have tragic DUII crashes. However, most of the DUII cases we see in Columbia County come from police contacts after the driver is pulled over for a traffic infraction or on reasonable suspicion for DUII. It’s impossible to gauge how many lives that saves. In places where traffic enforcement is not a priority, more and more DUIIs will be detected after a crash.
I think there are two important issues right now. The first is educating the public about impaired driving. DUII is so often referred to as “drunk driving,” and, while that was easy to be against, it’s not a complete description of the dangerous behavior. The Oregon statutes address driving, cycling and boating under the influence of an intoxicating liquor, cannabis, inhalants or controlled substances. Marijuana is very often on board in DUIIs these days and people don’t seem to have an understanding of how dangerous it can be when operating a vehicle. Also, because of Oregon Measure 110, Drug Decriminalization and Addiction Treatment Initiative (2020), which Oregon voters approved last fall, possession of controlled substances has been reduced to, in most situations, a class E violation. That means that it is now a more serious offense to fail to use a turn signal than it is to possess under two grams of methamphetamine. Law enforcement is concerned that the trend of seeing more cannabis and controlled substance DUIIs will continue upward as harder drugs like heroin and meth become more available and the use potentially more normalized.
My second concern, is that in response to budget cuts that occurred under the “defunding” movement, and to try to address the very real problem of long officer response time to 9-1-1 calls, Portland no longer has a traffic division. DUIIs are homicides waiting to happen. The DUII drivers come from all walks of life, every race, ethnicity and socio-economic status—just like the victims who also have to live with the consequences of the driver’s actions.
BikePortland: If I could cast a sleeping spell over you, and you were to wake-up in five years to an improved criminal justice system and enforcement environment, what would that look like to you?
Silverman: With respect to the statistic you mentioned, that nearly half of Portland traffic deaths from 2013 through 2017 involved alcohol impairment, that means that half of our traffic deaths are entirely preventable. That’s a huge percentage. Traffic fatalities, no matter where they occur in this state, are taken seriously — warrants are typically written and crash reconstructions are done by experts. I’d like to see that same dedication to attacking the problem from the front end before more lives are senselessly lost. I’d like to see three improvements:
1. A complete, full-time no refusal program adopted by every county in Oregon, and
2. more officers excited about DUII enforcement, especially more interest in becoming a drug recognition expert. DUII prevention is homicide prevention.
3. An understanding and acknowledgement from the public that traffic laws exist not to inconvenience us, but to keep us safe. It’s incumbent on each of us to remember that our time is no more important than anyone else’s and all of us are vulnerable on the road to the consequences of the bad decisions of those who choose to endanger us. Everyone sharing the road has a role to play. The best world is one in which everyone is doing their part to look out for one another. Even if it makes us late to work.
— Lisa Caballero, firstname.lastname@example.org
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Another Lisa Caballero article; another 10/10 high-quality content article. Keep up the great work!
(Thanks Squareman.. But just to be clear, Lisa Caballero did the interview.)
We can learn a lot about how to combat DUIs by how other countries have already successfully reduced them. In Sweden, for example, DUIs account for about 3 percent of its road fatalities.
1) Consequences reflect income and severity of crime. Repeat offenders have their car impounded and scrapped.
2) Many companies voluntarily have ignition interlocks that prevent DUI
3) Legal alcohol level is .02 vs the US .08
Usually with road design, law and policy we already have other countries we can use as a model to solve our problems.
After visiting Scandinavia, it really becomes clear that a big part of our DUII problem in the US is the ridiculously high limit of .08 BAC. There is no science supporting this limit. In Scandinavia, drivers know that anything more than 1 beer is going to put them over the limit. In the US, people drink to the point where they have already impaired their judgement before making the decision about driving home.
So the calls to defund the police aren’t beneficial after all. Seems like more training is needed which would require more funding. Interesting.
Not sure why this comment is awaiting moderation? The article even discusses defunding as an issue that needs to be addressed. Could it be that calls for even more funding is antithetical to what most on this site believe and can be misconstrued as inflammatory? Either way it seems ridiculous that you seem to allow voices that you agree with and silence the ones that don’t.
Appreciate the article – thanks, Lisa!
I’m hopeful for cars that detect impaired driving and shut down. Volvo’s headed there.
Until we get there, sadly, we need DUII efforts like this.
The suggestion that decriminalizing drugs leads to an increase in DUI needs a citation.
That’s a good point, Justin. I noticed it also and left it in because it was indeed a “suggestion,” in other words, it was wrapped in “Law enforcement is concerned that…” Which is probably true, they are concerned.
However, you are right, it doesn’t mean their concern has merit, and it was a little lazy of me to just let it slide. Measure 110 won by a big margin. I think it was sponsored by the Drug Policy Alliance, which seems to be a well-funded organization with George Soros as the Chair. Their site has a bunch of studies and information. But then I end up down another research rabbit hole, do I label the subject “disputed” (it might not be, DPA might be totally correct); do I say the law enforcement concern has no merit (I’m not sure about that). So it was a hard call for me, and I might have made the wrong call–but I’m not sure about that either.
Great points Lisa. Research rabbit holes take a very long time to crawl out of, and most people don’t see the effort you have to put in. We do appreciate it. I like to use the hierarchy of evidence as a rule of thumb, with meta-analyses, lit reviews and some choice RCTs as something commonly worth repeating in public, whereas case studies and expert opinion something to typically avoid disseminating and everything in the middle a big ¯\_(ツ)_/¯ Problem then is we have so many artificial holes in our research base, (eg gun control, marijuana) particularly due to the prevention of research via legislation.
Justin, I found a good Bloomberg article. It cites an Insurance Institute for Highway Safety study which shows that crash rates have spiked in the states which have legalized pot. And it hashes through other enforcement issues, it’s a good article. For me it’s enough to justify law enforcement’s concern that decriminalization might lead to more driving while intoxicated as a reasonable one. They would be remiss if they weren’t preparing for that possibility.
The suggestion in the article may make the DA’s job easier, but that does not necessarily translate into a reduced rate of DUI. The justice system is a revolving door when it comes to DUI, and punishment does not seem to reduce recidivism.
Since so many DUIs are repeated offenses, a better approach would be to proactively remove the ability to repeat the crime upon the first DUI conviction. The DA could negotiate reduced punishment in return for an agreement that the offender agree to permanent lifetime Oregon drivers license revocation without possibility of re-instatement. In addition, the agreement could specify a permanent lifetime ban on registering a passenger vehicle in the state of Oregon without the possibility of re-instatement.
The offender could still register a vehicle and obtain a drivers license, just not in the state of Oregon.
Together with a requirement to show a valid driver license in order to purchase gas, permanent state license revocation could start to chip away at the recidivism problem more effectively than just focusing on punishment.
I guarantee you the Dems in the state legislature would shoot this down because it will impact minorities.
The DA is free to make these kinds of deals. DA’s make deals on a regular basis. It does not require any law change any more than any other deal the DA makes. The defendant is not required to agree to a deal. Its up to them to decide if the want to take the deal or not.
Tom, thank you for the comments. In the case of first-time offender DUIIs, according to Silverman, DAs are limited in what they can do by statute. This is what she told me in a portion of the interview we didn’t publish:
Hi Middle. We only published about half of the Silverman interview, and the least controversial half at that. It’s the sentencing portion of DUII that becomes more of a hot-button issue, and rightly so. While we were first talking about doing an interview, Silverman recommended to me the book Policing the Open Road, by Sarah Seo. Seo makes it clear that “driving while Black” is a real problem.
The US also has a mass incarceration problem which, from what I’ve read, is due to structural racism in our sentencing laws.
I’m getting far afield of what I feel competent to talk about off the top of my head, but I think one of the good things to come out of the past year is that these issues are now mainstream and getting discussed. Maybe the boil has been lanced, finally.
I am somewhat concerned whenever I see anything related to “DUII of the year” based on the experience in Corvallis with Officer Cox. DUI’s are a weird thing because if you are accused, and there were no injuries, and you have not had a DUI within the last 10 years most lawyers will tell you that it is cheaper to just do the diversion. Officer Cox in Corvallis won the Oregon DUI Officer of the year award at least once and was very invested in being the guy with the most DUI arrests in the state, as a result he pretty clearly was accusing people who were sober of being drunk or on drugs. Corvallis had to settle lawsuits around it and he was eventually forced out of the department, but it was common knowledge around town for years that he was doing this and I knew people who had to spend thousands of dollars defending themselves in court even though they had done nothing wrong because of the feedback loop that these awards create. DUI is a real problem that needs to be dealt with, but I don’t think that incentivizing super officers/prosecutors to act significantly outside the norm is necessarily the best way to do so and I wish they would eliminate the awards.
Just in the reference to Sauvie Island comment, the possible recent DUI down tick is also hopefully attributed to the summer alcohol ban on the beaches implemented three years ago. The ban makes me feel a little safer cycling on SI in the summer.