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From the Medical Director – A physician gets a DUI. What’s the big deal?

By: Raymond C. Truex Jr., MD, FAANS, FACS

When I was in grade school in the 1950s, my uncle, a dentist, was killed in a traffic accident. A drunk driver had crossed the midline on a state highway in Nebraska, and struck my uncle’s car head on, killing both drivers, and leaving my aunt with three young children and no financial support. I remember my dad fuming, “there ought to be a law against this type of thing.” Drunk driving was commonplace then, with little legal repercussion. Things have been tightening up progressively since that time but driving under the influence (DUI) remains the most commonly committed crime.

On May 3, 1980, 13-year-old Cari Lightner was struck and killed by a drunk driver in Fair Oaks, Calif. The 48-year-old drunk driver left Cari’s body at the scene; he had recently been arrested for another drunken hit and run. Cari’s mother, Candace Lightner, registered the same indignation as my father, but went on to do something about it. She became the moving force of Mothers’ Against Drunk Driving (MADD), an organization which grew rapidly after a TV movie garnered publicity for the cause and became a political force.

Beginning in 1982, Congress developed a series of grant programs requiring states to establish safety criteria in order to receive federal money for state highway programs. One of the requirements was the establishment of a nationwide legal limit of .10 blood alcohol concentration (BAC) for drunk driving.

In 1998, then President Bill Clinton addressed the nation on setting a new standard to prevent the many tragic and unnecessary alcohol-related highway deaths from drunken driving. Between 1998 and 2004, Congress passed a series of laws which essentially forced states to adopt a common upper limit of .08 BAC as a definition of drunk driving, at penalty of reduction in federal highway grants to the state. As of 2001, 49 states had adapted the .08 BAC rule, with the remaining setting the limit at .10. The national requirements have become progressively stringent. In 2019, all states define driving with a BAC level of .08 as a crime, except Utah, which has adapted a level of .05.

So what is the magic of a BAC of .08? Was this level picked out of a hat? The National Highway Traffic Safety Administration (NHTSA) became the lead federal agency to study and regulate the DUI issue. They found significant statistical justification for setting the level at .08:

1) On the basis of NHTSA testing, 95 percent of drivers (a mean plus two standard deviations) are functionally impaired at BAC of .08, with reductions in judgment, reaction time, attention and coordination. Those who are not impaired at this level generally have developed tolerance to alcohol by prior habitual heavy consumption.

2) With a BAC of .08 or greater, there is a rapid increase in the frequency of auto crashes.

3) California experienced a 12 percent reduction in DUI-related fatalities the year after the BAC legal limit was lowered from .10 to .08. A similar study in Illinois corroborated a 14 percent reduction.

4) A BAC level of .08 does not inhibit responsible social drinking. An average 170-pound man would have to consume more than four drinks in one hour on an empty stomach to attain a .08 BAC. (For an average woman, it would take three drinks).

Further consideration suggests that impairment does not magically appear at a BAC of .08. Just as some persons are not functionally impaired at a BAC of .08, logic would dictate that other individuals will become functionally impaired with a BAC level of less than .08, depending upon gender, metabolism, body habitus and other factors. For this reason, many states and countries have set an even lower standard for DUI. Australia, France and Germany have a legal BAC level of .05, as does Utah. The American Medical Association introduced a policy in 2018 supporting a .04 BAC as a legal limit for drunk driving. Thus, there is continuing support for further lowering of the BAC .08 standard.

Does getting a DUI mean that the involved individual suffers from an alcohol use disorder, or is it merely a reflection of a one-off incident of bad judgement? Alcohol use disorder is efficiently defined as: the continued use of alcohol despite the use of alcohol causing problems in one’s life. By that definition,

a second DUI would certainly be diagnostic of alcoholism. But what about the first DUI? Some factual information:

1) The CDC has found in a study of DUI first arrests, that on average, that driver had driven drunk approximately 80 times prior to his first arrest.

2) For those arrested for DUI, one in three had a prior conviction for DUI.

3) The DSM 5 lists 11 criteria for Alcohol Use Disorder (AUD). Two of the criteria are enough to establish a diagnosis of mild AUD. One of the eleven criteria is: engaging in hazardous activity while under the influence of alcohol. That hazardous activity includes driving drunk. Thus, even one DUI establishes 50 percent of the necessary diagnostic criteria for AUD.

These facts make it clear that even one DUI is enough to at least raise a red flag that there may be an AUD underlying a DUI arrest.

As a state, Pennsylvania is getting tougher on drunk driving. Pennsylvania employs a three-tier system, depending upon the BAC level and number of previous offenses. The higher levels carry more severe penalties. There are escalating fines and penalties for repeat offenders. While still fairly permissive of a first offense, new laws passed in October 2018 for the first time established a felony charge for a third conviction for a DUI with BAC of less than .016, or fourth

DUI conviction regardless of BAC. A second DUI conviction carries a minimum jail sentence of 90 days, and a third conviction costs the offender six months in jail. A DUI vehicular homicide leads to five years in jail, while a second DUI vehicular homicide conviction increases to seven years in prison. For all but the first DUI offense, an ignition interlock device is required for the offender to drive. Despite these penalties, up to 75 percent of individuals with a suspended driver’s license continue to drive illegally, but substantial fines and jail time await those who get another DUI.

If you are a physician, or other PA-licensed health care provider, what does receiving a DUI penalty mean to you? Is it a big deal – a threat to your medical license and thus your medical career? A DUI is a criminal offense, why does that affect your medical license? Let me explain.

In March of 2014, then Pennsylvania Governor Tom Corbett, in executive order 2014-02, formalized the establishment of Justice Net, which is a computer network that searches criminal offenses and cross matches them with individuals who carry a health care license, including physicians, nurses, pharmacists, dentists, physical therapists and physician assistants, to name a few. A DUI conviction, which is a criminal offense, gets reported to the state board which oversees that profession. That prompts a referral to the Professional Health Monitoring Programs (PHMP), which is the monitoring arm of that board. For physicians and select other related professions, that in turn prompts a referral to the Physicians’ Health Program (PHP), which holds a contract with the PHMP to perform much of the required evaluation and monitoring.

Why do the Bureau of Occupational Affairs and the Boards of Medicine and Osteopathy care if a physician gets a DUI? I have presented a strong case, above, that even a single DUI presents a red flag about the possibility of an underlying alcohol use disorder in the offender. Secondly, being a physician is a privilege, not a right; and with that privilege comes the responsibility to carry oneself above approach and to protect the public from harm. Medicine and its allied health professions are understood to be defined by uniformly high standards of excellence.

As an example of that high standard, the American Medical Association prohibits the consumption of any alcohol while a physician is on call, because there is no clearly established lower limit of impairment for drinking without the risk of judgmental error. Driving while impaired is certainly an error in judgement, and also a violation of the medical professional’s ethical mandate to protect the public welfare.

That is the basis for the Board of Medicine, under the Medical Practice Act of 1985-112, Section 4, to investigate a physician who has received a DUI, to determine if that physician has an AUD which requires treatment.

That’s where the Physicians’ Health Program can be a lifesaver for a physician who has received a DUI. We can arrange for an evaluation to determine if there is an underlying alcohol use disorder.  (I estimate that about 50 percent of the evaluations we request for evaluation of a DUI in Pennsylvania are returned without a confirmatory diagnosis of AUD; that it was a one-time error in judgement, rather than a repetitive pattern). When diagnosis of AUD is made in the remaining 50 percent, we can arrange for confidential treatment at a center specializing in the rehabilitation of health professionals, and after that, advocate for the professional to safely return to practice with monitoring procedures in place to ensure the individual’s sobriety, and to safeguard the public.

The other alternative for a physician with a DUI is to not participate with the PHP, but take the alternative administrative pathway, which can lead to a sanction (probation or suspension) on the individual’s professional license, public disclosure of that license sanction and reporting to the National Practitioner DataBank. That is a gamble that most intelligent and logical physicians would not take; but then again, we are considering health care professionals that have already shown defective judgment and demonstrated risky behavior by obtaining a DUI in the first place.