How to do better DUII enforcement: An interview with Columbia County Dep DA Kimberlyn Silverman

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.

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?

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.

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— Lisa Caballero, lisacaballero853@gmail.com
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