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Drive under the influence and you'll be swiftly — and, most likely, severely — punished. Drive drowsy, on the other hand, and you'll probably face little more than a warning. Each year, fatigue contributes to at least 100,000 accidents, leaving 75,000 people injured and 1,500 dead. But it's a matter of accountability: There's no feasible way to verify exhaustion, making it tricky to punish someone for being tired at the wheel. It's murky territory. 

In most states, prosecutors can nab the bleary-eyed for getting behind the wheel through criminal negligence or recklessness statutes, but convictions are hard to come by. In 2012, for example, bus driver Ophadell Williams famously hit a guardrail while driving back to Chinatown from Mohegan Sun Casino in Connecticut, killing 15 passengers.

The trial, as the New York Times wrote, "centered on the legal question of whether a driver can be proved to be too tired to responsibly get behind the wheel." After sitting through testimony from 55 eye witnesses, a Bronx, NY jury found Ophadell not guilty of manslaughter and negligent homicide. "A lawyer for Mr. Williams," wrote the Times, "suggesting that driving without a full night’s sleep is a common practice, said the trial represented a misguided effort to find someone to blame."

Perhaps, the threat of criminal liability in the event of an accident sufficiently de-incentivizes the practice. But, right now, it’s hard to tell — when it comes to driver fatigue, excessive legal intervention is hardly the issue.

Only a few states have followed in the footsteps of New Jersey, which, in 2004, passed “Maggie’s Law.” Named for a young woman killed by a driver who'd been awake for more than a day, the law explicitly criminalizes drowsy driving and says that road-warriors who’ve been up for 24 hours are driving recklessly and fall under the same class as intoxicated drivers. Other states may be on their way, as fairly aggressive drowsy-driving bills are pending in a few states, including New York and Massachusetts.

In Massachusetts, failed and pending drowsy driving bills have languished in statuatory purgatory since 2009. Among other measures, the legislation proposes 22 hours of wakefulness as the standard for fatigue-impaired driving. One pending bill, introduced in 2013, requires drivers with BMIs above 33 to undergo mandatory sleep apnea screening before getting or renewing commercial licenses, and requires that the DMV include sleep deprivation education in the license application process. With its 22-hour wakefulness limit, the bill deviates slightly from the 24-hour rule that's become something of a default cutoff point for sleep-deprived drivers to assume criminal liability.

In most states, prosecutors can nab the bleary-eyed for getting behind the wheel through criminal negligence or recklessness statutes, but convictions are hard to come by.

While not everyone crashes (and crashes their cars) after staying up for a day, that hard number does serve a purpose: In the absence of any sound method of detecting fatigue, a bright line becomes the most objective way to hold people accountable for acting recklessly when they're tired. Otherwise, dangerously sleepy drivers can throw up their hands and claim they didn’t feel tired or realize they were too exhausted to drive.

Identifying an absolute time limit for legal exhaustion is by no means a great solution, as researchers and policymakers recognize. As a measure of legal intoxication, for example, Blood Alcohol Content (BAC) is both relative to the person and verifiable. There’s no breathalyzer equivalent for detecting drowsy driving. 

“This is an issue that many in the sleep research community are looking at,” said Clark Lee, a research associate with the Center for Health and Homeland Security at the University of Maryland, Baltimore. “For example, scientists are looking for so-called ‘biomarkers of sleepiness and fatigue.’ Others are looking at technological countermeasures against drowsy driving.”

The first generation of drowsy driving laws also differ from drunk-driving laws in precisely what they can, and do, govern. As of now, criminally liable fatigue only comes into play when a too-tired driver is involved in a fatal accident. There’s no lesser criminal penalty for drivers who are caught driving-while-tired but haven’t actually caused harm. 

“It might be possible to go after such individuals under a state reckless driving law that doesn't involve direct injury to a person or property, if such a law exists,” said Lee. “However, such instances might be treated as a traffic violation or misdemeanor rather than a felony. Ultimately, this is a policy decision for prosecutors and other policy makers” 

It’s true — research on sleep deprivation frequently equates the diminished mental and physical capacity associated with exhaustion with that of drunkenness. But, it’s hard to argue that getting drunk and getting tired are comparable behaviors in terms of personal responsibility. People certainly do stay up longer than they should without adjusting their conduct accordingly. Then again, our tired masses include so many people who don’t choose to live their lives on little sleep. There’s something messed up about blaming people for being tired when going to sleep could mean eviction or empty cupboards.

Perhaps, the threat of criminal liability in the event of an accident sufficiently de-incentivizes the practice. But, right now, it’s hard to tell — when it comes to driver fatigue, excessive legal intervention is hardly the issue.

“As drowsy driving continues to be recognized as an important public health and public safety issue affecting all levels of society,” said Lee, “I would hope that lawmakers, policymakers, and law enforcement officials would take greater interest in developing more legal and legislative interventions.”