"Who Is Fatigued and Driving?"
  02/15/2001

“N.J.S.2c:11-5 is amended as follows:

“For the purposes of this section, driving a vehicle or vessel while
knowingly fatigued shall constitute recklessness.” ... (snip to end where other part about fatigue is added in)

“This bill amends N.J.S.2c:11-5, the State’s vehicular homicide
statute, to establish that driving a vehicle or vessel while knowingly
fatigued constitutes recklessness. A person commits vehicular homicide when he causes the death of another by driving a vehicle or vessel recklessly.

“This bill is prompted by a recent case in Camden County in which a man
was acquitted of vehicular homicide charges stemming from an accident in which
a 20-year-old woman was killed after he fell asleep at the wheel and his
vehicle crashed head-on into hers. For a conviction under the vehicular
homicide statute, the State must prove that the driver of the vehicle was
reckless. Under N.J.S.2c:2-2, a person acts reckless when he ‘consciously
disregards a substantial and unjustified risk.’ The prosecution argued that
the man consciously disregarded a substantial and unjustifiable risk when he
got behind the wheel fully aware that he had not slept for over 30 hours
preceding the accident. The jury presumably concluded that driving while
fatigued did not constitute recklessness in this case. This bill would
establish that a person who drives while knowingly fatigued must be considered
reckless under the vehicular homicide statute.”

If the proposed New Jersey law for vehicular homicide is approved, with little or no
revision, the state must only charge the driver with vehicular homicide, not necessarily
prove that the driver was fatigued, or impaired in any way, to show that a driver was
fatigued at the time of a fatal accident. The old “innocent until proven guilty” thing is
suddenly cast aside. With this proposed legislation, as it currently stands, if you are
charged under this bill’s provision, it removes all burden of proof for the state. Read
closely, as it says: “This bill would establish that a person who drives while
knowingly fatigued must be considered reckless under the vehicular homicide statute.”

There’s no gray area in the proposed law for the person being charged. It’s a
black-and-white issue for the prosecutor. They charge you were fatigued, and perhaps,
even, get a doctor to say, “Oh, Bill worked a 10 or 12 hour day, and compounded with an
hour drive to work and an hour drive home, he never should have been driving,” well, that
kind of puts a nail in the coffin. Theoretically, all the state must now do is show a
person was awake more than a certain number of hours, or endured a stressful situation or
ate a hearty meal prior to an accident and viola!, the state now has an instant charge of
vehicular homicide against you.

There is no provision for defining “knowingly fatigued,” nor is there any verbiage
in the proposed legislation defining what “knowingly fatigued” actually means, or how to
determine if someone is “knowingly fatigued,”

Whether it is someone who has been diagnosed and is being successfully treated for apnea,
narcolepsy, excessive daytime sleepiness or idiopathic hyper somnolence, or even, consider
this, someone who is undiagnosed with any of the above, it still seems wrong to me – and
probably is wrong, and unconstitutional, that the state proposes to charge you with a
crime without backing up or documenting its case. Charging a person with a crime, yet
having to bear no burden of proof on its shoulders is a convenient way to misuse a law.

Sure, for things such as using a motor vehicle under the influence of alcohol or drugs,
it’s reasonable, as the state can prove you were under the influence of those substances.
In this case, however, the state is reaching, as there is not one test the state -- or
anyone, for that matter -- can administer to determine how alert or how fatigued you
really are at any point in time.

As an example, prior to someone being diagnosed with sleep apnea, narcolepsy, excessive
daytime sleepiness, or another sleep disorder, did they knowingly drive a vehicle while
fatigued, tired, sleepy, or whatever term you want to use? The answer is most likely yes.
But, someone will argue, if the person drove while they were tired, why shouldn’t they be
charged with vehicular homicide? That answer is a little complex, but easily explained.
People who have not been diagnosed with a sleep disorder can go on leading life for many
years, often being called lazy or told they just need to sleep more hours each day, or get
better rest. Oh, then there’s the catchall phrase about avoiding caffeine, maintaining a
regular sleep pattern and other topics from basic sleep hygiene guidelines. Do those
guidelines and suggestions work for folks with sleep disorders? Absolutely not. In fact,
the person may not even have a clue what it feels like to ever wake up feeling rested.
There’s also a good chance that the person has mentioned they constantly feel fatigued to
doctors, family members, co-workers, friends, or others. That would really strengthen the
state’s case, wouldn’t it? Not necessarily. You see, many doctors don’t recognize the
symptoms of sleep disorders, or the seriousness of the impact. Don’t forget, too, that
even those these folks may have complained for years that they felt tired or sleepy, they
often were told that it’s common or normal – especially if they worked a job, had a
family, or attended school.

The problem with folks who have undiagnosed sleep disorders is just that – the problem
remains veiled behind a nocturnal wall that’s relatively subjective until laboratory
testing is completed. The person who has an undiagnosed sleep disorder, many times, feels
they must be the only person in the world to always feel tired – or the only whiner. Were
they ever told that their sleepiness could be a problem by their family physician?
Probably not. In fact, the physician, if the person complained enough, may have prescribed
sleeping pills, a prescription for a medication to treat depression, or even counseling.
Do you think the person was ever told they were a danger to others on the road? Again,
probably not. You see, I grew up suffering the impact of undiagnosed, hence, untreated
sleep apnea. Prior to being diagnosed and placed on a BiPAP machine, I never knew what it
felt like to be ever wake up in the morning feeling rested. I was always fatigued. I heard
others tell how they felt rested after sleeping for 12 hours, at times, so I sometimes
checked with my doctor, many times, actually, over the years, explaining how I felt sleepy
all the time. I was always dismissed, being told, “Don’t worry, you’re fine, you’re
healthy, it’s normal.” That went on for more than 25 years. There were even a couple of
years in there when I drove a semi tractor-trailer. Why did I drive? Because I had to
drive to get to work, to make a living, to get to school, to pick up my children, to go
grocery shopping, to take the family out for the day, to do whatever was happening in
life, basically.

Was my driving at that point irresponsible? No. However, as the proposed legislation by
Assemblyman Geist, would charge me, had I been involved in an accident that resulted in
someone’s death, with vehicular homicide – and they would have the proof. In fact, look at
all the proof they would have had against me. Literally, the state would have had years of
documented proof from my physicians that I suffered sleepiness. So, under the proposed New
Jersey law, I would have been reckless. Really? I consulted with my physician. Nothing I
felt led me, at that point, to believe I felt any differently than anyone else in society,
as a whole. In fact, it seemed, to me that I was whining about something that everyone
else dealt with in some effective way, and often made me wonder what the mysterious secret
was that I had not found to deal with the sleepiness. Maybe it was those over-the-counter
pills to keep you awake. Nope, I tried those. Maybe it was sleeping for longer periods of
time. Nope, I tried that, as well. Perhaps it was sleeping fewer hours. Nope, I only felt
sleepier if I did that. But, as the State of New Jersey will see it, should this bill be
enacted, “This bill would establish that a person who drives while knowingly fatigued must
be considered reckless under the vehicular homicide statute.” They have proof that I was
knowingly fatigued, despite my doctor telling me for years that it was normal.

Now that I’ve been diagnosed, and am being successfully treated of sleep apnea, do I ever
tired or sleepy? Sure I do, I’m still human. Do I ever drive when I feel tired? Not a
chance! Now that I know there was, and is, an underlying cause for the sleepiness, I take
heed to my body’s warnings. When I feel sleepy, I do the logical thing: I take a nap.

If driving while fatigued – the legal definition being undefined – could be considered
such a blatant crime, I wonder if the State of New Jersey would consider passing
legislation that would make it illegal to work while fatigued. Maybe the state would pass
legislation making mandatory overtime illegal. Or maybe they will pass legislation that
would make being tied up in a traffic jam on the New Jersey Turnpike illegal. I doubt that
any of those will ever happen, but those fictitious laws all reach to the high heavens
just like the proposed legislation does.

Remember, I’m no attorney, nor do I play one on TV, but I have some serious reservations
about this bill -- especially since the State does not have any burden of proof -- and
that any “proof” offered by the state would only lend to the “credibility” of the State’s
charges, accordingly. It seems to me that this will become, by default, the charge of
choice for anyone involved in an accident where another person dies. Sure, all accidents
are sad, and accidents that result in someone’s death are tragic, but compounding that
tragedy with a trumped up charge from the State -- without the State having the burden of
proof lingering overhead -- seems to me a stacked deck against anyone driving in the state
of New Jersey.

Maybe the state should revoke that license of anyone who is diagnosed with apnea,
narcolepsy, excessive daytime sleepiness, or any other sleep disorder. Wrong. If someone
is diagnosed, using currently accepted procedures in a sleep lab, and is being
successfully treated for a sleep disorder they are no longer a threat to anyone. It’s the
folks with the untreated and undiagnosed sleep disorders that are a threat. It’s also
folks who willingly stay awake for extended periods of time that are a threat.

This column, in no way, is a definitive and conclusive argument about all sleep disorders,
even the ones mentioned. It's merely a discussion of some issues which must be taken into
consideration -- by the lawmakers in New Jersey, as well as other states, as well as by
society, as a whole.

There are many folks on the road who are a threat. How do we define all those threats?
That’s what the other driving laws have done, and adding this proposed piece of
legislation does nothing to help resolve the problem. In light of its lack of definition
for the term fatigued, as well as lack of tools to diagnose fatigue, this piece of
proposed legislation needs to be dumped just as fast as it was introduced.

  - by Dave Jackson (Scoop0901)