The Wall Street Journal published an opinion piece last Friday that, according to the headline, offered “A Simple Fix For Drunken Driving.” I was intrigued because, frankly, I didn’t think there was one. As it turns out, the headline over-promises. The author, Stanford University psychiatry professor Keith Humphreys, does not purport to have a solution that ends impaired driving once and for all. Instead, Dr. Humphreys reports on the “stunning” results of South Dakota’s “absurdly simple” 24/7 sobriety program for repeat DWI offenders.
The South Dakota program. In 2004, the South Dakota attorney general launched the 24/7 Sobriety Project, which required twice-a-day breath tests as a condition of pre-trial release for defendants who had been rearrested for DWI. A defendant who tested positive for alcohol or who failed to appear for testing was immediately confined to jail for a short period, typically one or two days. Researchers from the Rand Corporation evaluated the program’s effectiveness in a study published in the American Journal of Public Health in 2013. They analyzed results from 3.7 million breath tests taken from 2005 to 2010. They reported that 99.3 percent of the tests were clean, .36 percent were positive for alcohol, and .34 percent were no shows. The researchers found that the program led to a 12 percent reduction in repeat arrests for DWI and a 9 percent reduction in domestic violence arrests.
Swift and certain punishment. Dr. Humphreys attributes the success of the 24/7 program to the “swift, certain and modest” penalties imposed upon defendants who fail the breath tests. He writes that human behavior is “affected much more by what is definitely going to happen today than by what might or might not happen far in the future, even if the potential future consequences are more serious.” He goes on to say that the modest nature of the penalties makes due process “much simpler” and costs states less than longer terms of confinement. Humphreys opines that one of the reasons such programs have not been more widely adopted is because they challenge commonly held, but mistaken, beliefs about drinking problems, namely that people cannot recover from such problems without the help of a treatment professional and that people who suffer from substance-abuse disorders have no capacity for self-control.
North Carolina programs. The concept of 24/7 Sobriety is not new to North Carolina’s courts. While there is no statewide effort of the sort led by the South Dakota attorney general, some judicial districts have relied upon grant funding to establish DWI treatment courts. The typical model is to require alcohol abstinence and breath testing as a condition of supervised probation rather than as a condition of pre-trial release. Cumberland County’s “Sobriety Court,” however, monitors and sanctions defendants on probation for DWI as well as defendants with a prior record of DWI convictions or arrests who face new DWI charges. (This local attorney’s website features a detailed description of the Cumberland County program.)
Why it is not so simple. About 160 defendants were enrolled in Cumberland County’s sobriety court as of February 2014. This report to the General Assembly in 2011 reflects that about 100 defendants were admitted to Mecklenburg County’s DWI court in 2009-10. From July 1, 2013 until June 30, 2014, Cumberland County’s courts disposed of more than 1,700 DWI cases. Mecklenburg County’s courts disposed of more than 2,700 during that same period. So, while DWI treatment and sobriety courts doubtless are valuable to the courts and the communities they serve, they directly affect a relatively small percentage of DWI defendants. These courts target DWI recidivists, and most DWIs are committed by defendants who have not been convicted of a DWI in the seven years before the current offense. (In the 2013-14 fiscal year, 75 percent of the 34,000 DWI convictions statewide were sentenced at Levels 3, 4, or 5.)
Moreover, the ability to impose the swift, certain and modest sanctions lauded by Dr. Humphreys, depends–under current North Carolina law–on the defendant waiving his right to a hearing before a judicial official. In South Dakota, in contrast, courts are expressly permitted by statute to condition any pre-trial release and/or probation upon participation in the 24/7 sobriety program. See S.D. Codified Laws §§ 1-11-20, -21. It is unclear how many defendants sentenced in North Carolina would agree to such sanctions if the sobriety programs were widely expanded.
And why 24/7 won’t eliminate DWI. Accidents involving impaired drivers claimed the lives of 371 people in North Carolina in 2013. Statistics compiled by the National Highway Traffic Safety Administration show that nationwide 94 percent of drivers with a blood alcohol concentration of 0.08 or more who were involved in a fatal crash in 2013 had no previously recorded DWI conviction (based on data from the Fatality Analysis Reporting System, which records convictions that occurred up to three years before the date of the crash). Thus, the conclusion seems inescapable that even a wildly successful 24/7 sobriety program will not “fix” the impaired driving problem.