IF YOU cause a fatal accident because you drive when you are sleep-deprived, you may be jailed for up to two years, or fined, or both.

In the past, the courts in Singapore have typically only fined but not jailed motorists who cause death by negligent driving. In a recent case, however, a special court of three judges headed by Chief Justice Sundaresh Menon found that jail time was warranted.

On March 13 last year, casino surveillance officer Hue An Li, then 26, had stayed out with friends for 12 hours immediately after finishing a 12-hour shift at work. When driving home afterwards - having gone without sleep for 24 hours continuously - she blanked out at the wheel and rear-ended a lorry.

Indian national Mahalingam Rajesh, 30, was killed while 11 other people in the lorry were injured, including one who was paralysed from the waist down.

There are many overworked and sleep-deprived people in Singapore, but the law has not paid sufficient attention to the risks involved in driving without adequate rest.

As such, even drowsy drivers who are involved in deadly accidents have been punished with mere fines - until this case.

Sleep is a biological requirement that can't be overcome with will power, determination or training. Research suggests that the adverse effects of sleep deprivation kick in when adults get less than five hours of sleep a night. Of these effects, the impairment of vision and coordination are the two most relevant to drowsy driving.

Since the early 1990s, studies have shown that sleep deprivation causes cognitive impairment akin to that induced by alcohol.

British researchers have shown that 17 to 18 hours of no-sleep will reduce a motorist's performance level to that of someone with a blood alcohol level (BAL) of 0.05 per cent, which is the legal limit in many European countries.

In the early 2000s, Australian researchers confirmed that 17 to 19 hours of no-sleep lead to a performance as bad as a BAL of 0.05 per cent. They also showed that 28 hours of sleep deprivation caused truck drivers to perform as badly as a BAL of 0.10 per cent, well above the legal limit in most countries. (In Singapore, this is a BAL of 0.08 per cent.)

Thus driving when extremely sleep deprived is like driving under the influence of alcohol, which is undoubtedly a grossly negligent act. Indeed, since 2003, Britain has amended its law to make drowsy driving a crime as serious as drink driving.

A lower court in Singapore had merely fined Hue the maximum $10,000 and banned her from driving for five years.

In its appeal, the prosecution wanted her jailed for "gross negligence" for driving when she had not slept in 24 hours. The appeals court agreed, and sentenced her to four weeks in prison.

While this court decision is to be applauded, there is a risk that it may have set an arbitrary 24-hour no-sleep standard as the precedent for ascertaining if a drowsy driver is grossly negligent. Coincidentally, the state of New Jersey in the US has, since 2003, put in place a law where drivers who have been without sleep for at least 24 hours (but not less) who commit vehicular homicide can be jailed for 10 years and fined US$100,000 (S$125,000).

Indeed, the 24 hour cut-off point may come to be given inordinate weight as a precedent in drowsy driving cases in the future. This is because it is the only clear-cut factor that points to gross negligence - apart from the driver confessing to having fallen asleep at the wheel, or unless there is incontrovertible video capture of him dozing off.

If the lower courts in Singapore were to follow this precedent too closely in future cases, many cases of gross negligence in drowsy driving will not be caught.

First, will the 24-hour threshold apply only if there is a fatality? If Mr Mahalingam had survived, would Hue have been jailed at all? If the precedent is strictly applied only when there is a fatality, then drowsy drivers who cause very serious accidents without fatalities may get away with just a fine even in cases where the victim is paralysed, brain damaged, or seriously injured in other ways.

Second, if "gross negligence" requires the driver to have been awake for 24 hours continuously, the new precedent may be hard to apply. What if the driver had had a few cat naps for a total of, say, six hours of sleep in the 36 hours leading up to the accident in question? Or a motorist who had slept for only two hours in the last 24 hours? Or one who had slept for 12 hours straight just before he then went without sleep for 24 continuous hours?

Third, there is unfortunately no blood test that can quantify one's drowsiness level. Knowing that their drowsiness cannot be quantified, unlike blood alcohol levels, this precedent itself may come to motivate errant drivers to claim that they had indeed slept for more than a few hours the night before.

They might then claim that they had swerved to avoid a reckless motorcyclist instead, for example. Perhaps circumstantial evidence may still suggest he was driving sleep-deprived. But without a confession or clear video evidence, such circumstantial evidence may not be enough to convict. Remember that the standard of proof must be "beyond a reasonable doubt" in a criminal case.

CJ Menon remarked: "It is important to signal to other drivers that they must be mindful of the terrible risks they take upon themselves and other road users when they drive when not fit to do so." It is not obvious, however, that this new prospect of jail time will change such driver behaviour. After all, every motorist should be deterred by the prospect of being killed if they drive sleep-deprived. Yet some do so anyway, so it may be more of a lack of awareness of the gravity of the situation than the prospect of jail time or the possibility of hospitalisation.

What to do?

To more effectively deter drowsy driving, the threat of prison time must be supplemented with campaigns to educate the public about the dangers of driving when one is sleep-deprived.

-- ST FILE PHOTO

by Andy Ho