What to Do with the Impaired Drivers We’ve Stopped—And the Ones We Haven’t

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DWI arrests in North Carolina’s capital city are on the rise. The Wake County district attorney’s office expects to prosecute around 7,000 DWI cases this fiscal year—2,000 more than it handled in 2013-14.  The increased arrests result from beefed up patrol activity made possible by federal grants. And there is some speculation that the decline in fatal alcohol-related accidents in Raleigh from the previous year may be related to the additional arrests. Yet people continue to drive while impaired in Raleigh and elsewhere in North Carolina, sometimes with tragic consequences. And every DWI charge adds a court case to an already crowded district court docket. I wonder: Can we prosecute away the risks posed by impaired drivers?

Increased arrests.  Experts agree that increased enforcement—or at least the public perception of increased enforcement—is part of the solution to the impaired driving problem.  Most impaired drivers are not arrested the first time they drive while impaired.  To the contrary, researchers estimate that a typical impaired driver will drive while impaired 50 to 200 times before being stopped by law enforcement. Once a driver has driven while impaired on numerous occasions without being stopped, he may rationally conclude that the risk of arrest is low.  High-visibility enforcement, including well-publicized DWI checkpoints, counter that notion by creating, as one leading researcher put it, “the perception that police are out there looking for impaired drivers.”

Crowded dockets. Lorrin Freeman, Wake County’s newly elected district attorney, noted that the 2,000 additional DWI cases “’still have to go through the same eye of the needle,’” meaning that they will appear on the already crowded district court dockets in Wake County. Freeman’s predecessor, Ned Mangum, who recently has returned to his previous post as a district court judge, has noted that the courts can process “50,000 speeding tickets faster than it can handle 2,000 impaired driving cases, because [the DWI cases are] so complex and take time.” District Attorney Freeman has said she doesn’t favor amending DWI laws, but instead advocates for hiring more prosecutors and judges to handle the cases. Yet, as a leading report noted nearly a decade ago, arresting and imposing sanctions on everyone who drives while impaired “is not logistically feasible without a massive infusion of additional resources at all levels of the criminal justice system.” National Cooperative Highway Research Program Report 500, Volume 16: A Guide for Reducing Alcohol-Related Collisions (2005) (NCHRP Report).

Affording prosecutors and judges more discretion. Some attorneys contend that DWI cases could be resolved more quickly and effectively if the parties had the ability to plea-bargain. Under current law, prosecutors may not dismiss or reduce charges of impaired driving without explaining orally in open court and entering in writing the specific reasons why they took that action. G.S. 20-138.4. Many construe this requirement as a legislative directive that district attorneys avoid reductions and dismissals in almost all circumstances. Others believe that the public they serve disfavors such leniency.  As a result, reductions and dismissals are rare in DWI cases.

That’s a good thing, according to national experts, who contend that diversion programs and plea bargains to non-alcohol offenses “undermine the integrity of DWI countermeasure programs, allowing individuals to escape appropriate punishment and preventing states from treating [repeat] offenders more seriously.” NCHRP Report at V-5, V-6.

There likewise is little room for striking a deal when it comes to sentencing for DWI. Prosecutors are required by G.S. 20-179 to present to the court all grossly aggravating and aggravating factors of which they are aware. These factors largely control the level of punishment to which the defendant is subjected. The sentencing scheme further requires that the punishment imposed accord with a relatively narrow range of options for each sentencing level.  Judges have repeatedly–and often notoriously–been sanctioned for departing from this mandatory sentencing scheme. A defendant’s inability to plead her case for meaningfully reduced punishment to a judge removes an obvious incentive that might otherwise lead to a guilty plea and a quicker resolution of the case.

The drivers who haven’t been caught.  Nothing about DWI enforcement efforts to date suggests that the risks of impaired driving can be entirely prosecuted away. Some 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 criminal justice system had no specific opportunity (or at least no recent specific opportunity) to deter their behavior. This is why experts contend that an essential component of any effort to reduce impaired driving  must include efforts to dissuade all drivers from engaging in that activity, not simply the ones who previously have been arrested. While some drivers are dissuaded by high-visibility enforcement, such strategies are less likely to affect the behavior of drivers who are alcohol-dependent. (NCHRP Report at III-3).

The NCHRP report recommended four strategies to reduce incidents of DWI by reducing excessive drinking and underage drinking:  (1) increase the state excise tax on beer (NC did this in 2009); (2) require responsible beverage service policies for alcohol servers and retailers (NC has checked this box); (3) conducting well-publicized checks of alcohol retailers to reduce sales to underage persons (check); and (4) employing screening and brief interventions in health care settings.  North Carolina has the first three bases covered.  I don’t know whether the health care strategy has been widely adopted.

DWI Task Force. Governor Pat McCrory established in 2013 a statewide impaired driving task force charged with reviewing existing data, laws, regulations and programs and developing a “plan to provide a comprehensive strategy for preventing and reducing impaired driving behavior.” That group has been active, and I expect that that it will report its recommendations to the legislature later this session. The last DWI task force report led to substantial amendments to the laws governing impaired driving and alcohol sales generally.

Have your say.  Do you work in the criminal justice system?  In health care?  With young people?  Let us know what you think about these strategies and others for solving the seemingly intractable problem of DWI.

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11 comments on “What to Do with the Impaired Drivers We’ve Stopped—And the Ones We Haven’t

  1. I think the number one way to reduce impaired driving is more and cheaper transportation options, especially in rural areas. So many impaired drivers do so because they want to go out and drink or go to the store to get more alcohol and have no other option than to drive themselves. Such measures would not prevent reckless teens and jaded alcoholics from getting behind the wheel but I believe it would stop the large “middle” who drive after too many because they need to get home from the bar somehow and can’t afford or find a taxi. In rural areas, taxis are few and far between and the drive home or to the store can be 10-20 miles or more.

    I am all for continued prosecution and enforcement. I believe it does make a difference. But the truth is alcohol and drugs impair one’s judgment. Those folks may not consider the consequences and long term implications before they drive but many would consider a cheap, easy alternative if given one.

  2. I don’t believe that the NCHRP report’s four recommendations will deter drinking and driving. This is not based on my work at IDS, but on “anecdata” from my personal life. What I do believe may decrease drinking and driving are other transportation options. Many people my age rely on services like Uber and Lyft to get an affordable and convenient ride home. I have also heard of a local service that will come to you and drive your car home. Yes, these options are more expensive then simply driving home and not getting caught, but they are much, much cheaper than getting a DWI. If the Triangle were to get a light rail or other safe, cheap public transportation option, that could also have an impact.

  3. The Court should not punish the Defendant for exercising the Defendant’s right to a trial. In most of the counties that I know of, the Court does not do so. So, without the threat of added punishment, isn’t it malpractice to plead your client guilty when the same punishment will be handed down in the event of a finding of guilt? Until there is some carrot to entice Defendants to plead guilty, the system will continue to see an overwhelming docket.

  4. Are we seeking to solve a court caseload problem or a highway safety problem?

    I don’t think two solutions are going to be one and the same. If the court plea bargains down a DWI case and that driver then causes a death on the road, the court is going to lose more credibility with the public.

    Examples of aplenty for need of change. The DWI driver of a car going over 100mph on I-540 who killed a motorcyclist in an hit and run had no license, no insurance, had prior convictions and was awaiting court date on DWI. The public perception has to be that the court and LEOs are not in control of the highways or functioning in such a way to protect the public first. This is not rare news, just dramatic due to the speed. So, continued criticism is inevitable.

    Lawmakers must write the laws to streamline action. Maybe bars should stop selling alcohol at a much earlier time? Maybe the alcohol tax should pay for an enlarged traffic court impaired drivers? The court has to adjudicate with justice, not via a path of least resistance.

  5. Please tolerate a comment of simplicity that has no immediate impact. The problem of driving while impaired is not a motor vehicle problem, it has to do with consumption of alcohol while in the process of performing any task that requires being responsible for our actions, such as rearing children, preparing tax returns, posting comments (I hope 5-1=4), working with heavy equipment, and on and on. Most advertising implies that consumption of alcohol as a beverage is fashionable, politically correct and just plain fun, as long as we don’t drink and drive. Family, friends, employers, clergy, mentors, and just plain nosey people must begin disapproving of such consumption before we will realize any relief from DWI. In the meantime, apply the law or just plain give up.

  6. Perhaps making ignition interlock devices standard equipment in all new vehicles would be the best solution.

  7. If I’m reading between the lines correctly, the court dockets are overloaded BECAUSE we’ve asked police to step up their patrols and arrests for DWI and BECAUSE we expect the DAs to take a hard-lined approach to DWIs. If increasing amounts of people are being arrested for DWI, then it’s a problem that the state has brought upon itself. This “problem” should be remedied by the increased court costs and fines that are entering the state revenue. But we all know that money doesn’t get funneled back to employing more ADAs and judges.

    If the problem is an overtaxed court system, then plea bargaining is not a bad idea. The court is automatically going to require substance abuse treatment to people convicted of DWI, so why not offer that treatment/education as a deferred prosecution option for first time offenders? In many counties, a person charged with domestic violence can earn a dismissal of his charge but a first time DWI offender is not offered the same opportunity. Why the disparity? Are we to presume that domestic violence isn’t that bad of a problem?

    The remark about 50,000 speeding tickets being resolved faster than 2000 DWIs is irrelevant. Speeding tickets are handled through online waivers and through attorneys and pro se pleas on admin dockets. The problem of overloaded dockets is not entirely the fault of DWIs. If officers were not so eager to cite and arrest at least one person when they respond to a call for service, the dockets would be more open to handle the serious matters such as DWIs.

    If the legislature is not going to provide for plea bargaining proactively, then there is no point not to try every single DWI. The same mentality applies to people charged with passing a stopped school bus (which in my experience is never reduced or dismissed). No reduction/leniency = No guilty plea. The truth of the matter is juries find people not guilty of DWI. There’s no reason not to put a questionable DWI in front of a jury.

  8. I don’t like the idea of granting more discretion to judges in regards to the disposition of DWI offenses. The sweeping changes by the General Assembly in 2006 were absolutely necessary and getting certain individuals to follow the law that has been in effect since 2006 is sometimes still a challenge. Some judicial officials have tried to eviscerate the effective changes made in 2006, but many of the provisions have survived challenges at the appellate level.

    The bottom line is through my anecdotal observations, indigent defendants charged with DWI plead guilty quite regularly and even when they plead not guilty, the defenses are less than adequate. If you have money, you can hire the right attorney sometimes people like Bill Powers and pay for expert testimony to fight the DWI. This pay to play is hard to swallow.

    Sometimes decisions made by District Court Judges that are completely inconsistent with established case law, statutory law, or made due to inexperienced prosecutors unable to appropriately argue motions result in cases being dismissed in error. The State rarely appeals these erroneous decisions because in most cases double jeopardy applies as defense attorneys are allowed to ignore statutory law that mandates suppression arguments in DWI cases to be made pre-trial when the facts are known before the trial begins (NC GS 20-38.6).

    A formal discovery policy needs to be adopted for DWIs in district court so defense attorneys can be required to adhere to the law and allow the state recourse to deal with judges that erode public confidence in the court system by making decisions wholly inconsistent with the law of this state.

    You essentially have experienced defense attorneys that come into court with research conducted on their avenue of attack to suppress evidence of a DWI. Even without a formal discovery policy or subpoena, almost every officer will discuss a DWI with a defense attorney in the hallway and allow them to see the report well in advance of the trial date. So the defense attorney comes to court prepared with research. The prosecutor is often fresh out of law school with limited experience and most of the time there is no pre-trial meeting with the officer. So the inexperienced prosecutor has a few seconds to prepare a response argument to the defense motion that was prepared over the course of weeks involving the payment of thousands of dollars. Although these prosecutors are performing a noble profession and have nothing but goodwill, there lack of experience in dealing with DWIs is impossible to overcome. District Attorneys need way more money to fund their office and hire the best attorneys available.

    Judges should summarily deny defense motions made during trial when it should have statutorily been made pre-trial. I have never seen this happen despite many examples of times it should have. Why it keeps getting ignored, I have no clue.

    Don’t get me wrong, there are examples of DWI offenses that lack sufficient evidence and sometimes the police get it wrong. Those offenses should be dismissed quickly, but if you linked up a newspaper writer along with a legal scholar to watch District Court in this State, you could sell a lot of newspapers with the mess that happens. It has improved drastically from the days of pure corruption, but much work is still needed. Until one of your family members dies at the hands of a drunk driver that repeatedly pays his way out of charges without establishing a legitimate legal defense, you will never understand. Justice works both ways.

  9. NC has consistently enacted laws that make NC one of the toughest states in the country on DWI offenders. One observation I think is curious is that although NC has raised the age for legal consumption to 21, enacted tougher laws, given prosecutors more tools and better education to prosecute DWIs, the average chemical test result has steadily crept upward. What use to be a high blow 15 years ago, a .13, is a low blow now. The issue of alcohol consumption and driving a vehilce after doing so is a much deeper problem that simply doing a better job of prosecuting for conviction. This issue needs to be addressed as to how consumption begins in the first instance and recogninzing it as a disease that has collateral consequences far beyond those to the person who operates a vehicle after drinking.
    Eviscerating legal rights and stream-lining the legal process for convictions will not solve the problem; just look at the number of repeat offenders. There needs to be an acknowledgment that alcohol consumption is a far greater problem than simply DWIs and the solution will take more than just the legal system to solve it.

  10. […] 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. […]

  11. […] to the UNC School of Government blog, as a result of the increase in DWI arrests in Wake County, have created a trend where prosecutors […]

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