Strategies for Dealing with the Persistent Drinking Driver

Barry M. Sweedler

National Transportation Safety Board, Washington, DC 20594, USA

ABSTRACT

In the last decade, substantial reductions have occurred in drinking and driving in the United States and throughout the industrialized world. While this progress is encouraging, the tragic toll of drinking and driving is still much too high, and there remains a group of persistent drinking drivers who do not appear to be deterred by the threat of social disapproval or legal punishment. Persistent drinking drivers represent an estimated 65 percent of fatally injured drinking drivers, or about 30-35 percent of drivers killed in the United States each year. More innovative measures must be taken to effect the behaviour of the persistent drinking driver.

Obviously, there is no single solution that will bring this problem under control. However, there are definite, practical, cost effective steps that each State can take to deal with the persistent driver. These suggested strategies are based on the consensus of experts in the field who attended a Transportation Research Board Workshop in July 1994. This paper describes the range of strategies that can be implemented. These strategies are primarily aimed at making the threat of serious consequences more concrete for those who continue to drive without a license and at administratively separating the illegal drivers from the vehicles they continue to illegally drive.

INTRODUCTION

During the past decade, substantial reductions have occurred in drinking and driving in the United States and throughout the industrialized world. In 1982, 57 percent of all highway fatalities in the United States were related to alcohol; by 1994, that figure had been reduced to 42 percent. In that same period, the number of alcohol-related fatalities dropped from 25,165 to 16,884 -- a reduction of 33 percent (NHTSA 1995).

Progress appears to have resulted in large part from tougher laws, better enforcement, and greater public awareness. In addition, the raising of the drinking age has had a significant effect on young drivers (Stewart and Voas 1994). Although this progress is encouraging, the tragic toll of drinking and driving is still much too high and there remains a group of persistent drinking drivers who do not appear to be deterred by the threat of social disapproval or legal punishment. Additional measures must be taken to further reduce the overall toll of drinking and driving. It is important to recognize that while the problem of the persistent drinking driver is a serious one, many alcohol-related fatalities involve drivers who have never been arrested before, and the traditional strategies that have been effective with this group must not be neglected. But whereas these countermeasures will continue to be effective for most drivers, more innovative measures must be taken to change the behavior of the persistent drinking driver.

Before strategies to deal with this group can be suggested, the target must be defined. In other words, who is the persistent drinking driver? It is difficult to develop a precise definition, but we all think we know who this driver is: the person who drinks and drives again and again, week after week, month after month, year after year; the person whose drinking and driving behavior has not been changed by information and education, who has not been deterred by drinking and driving laws and enforcement, and perhaps even by arrest and punishment for violating drinking and driving laws. He (almost always he) has been called hard-core, problem drinker, alcoholic, antisocial. He appears periodically in the press after a tragic crash in which he kills innocent victims and prompts repeated calls to "do something" about him (Hedlund 1995). A good definition of the target group appears to include persons who repeatedly drive after drinking, especially with high blood alcohol concentrations (BACs). Obviously, repeat offenders of driving while intoxicated (DWI) are an important part of the target group.

Using this broad definition (persons who repeatedly drive after drinking, especially with high BACs), persistent drinking drivers represent an estimated 65 percent of fatally injured drinking drivers, or about 30 to 35 percent of all drivers killed in the United States each year. About 15 to 20 percent of all drivers injured each year also fall into this category. This amounts to 7,000 dead drivers and 250,000 injured drivers each year. These figures do not take into consideration the other people who die or are injured in the crashes involving those persistent drinking drivers as occupants of the same or another vehicle, or as pedestrians (Simpson 1995).

Obviously, no single solution will bring this problem under control. There are definite, practical, cost-effective steps that each state can take, however, to deal with the persistent drinking driver. These suggested strategies are based primarily on evaluations of ongoing and pilot programs and, where such research is not available, on the consensus of experts in the field who attended a US Transportation Research Board (TRB) Workshop on the Persistent Drinking Driver. The workshop was sponsored by the TRB Committee on Alcohol, Other Drugs, and Transportation and cosponsored by the International Council on Alcohol, Drugs, and Traffic Safety; the US National Highway Traffic Safety Administration; and the US National Institute on Alcohol Abuse and Alcoholism. It was held at the US National Academy of Sciences Study Center at Woods Hole, Massachusetts, in July 1994.

The workshop addressed strategies to reduce the problem of the persistent drinking driver in seven domains: environmental strategies, media approaches, enforcement strategies, driver's license penalties, vehicle-based sanctions, alternatives to incarceration, and rehabilitative approaches. Each of these domains deals with a different way of persuading, deterring, apprehending, incapacitating, or treating the persistent drinking driver. The TRB, in February 1995, issued Circular No. 437, Strategies for Dealing With the Persistent Drinking Driver, which describes the key features of a comprehensive system for dealing with the persistent drinking driver. These features are based, in most part, on research that shows their effectiveness and on practical experience. It also discusses additional features that appear promising on the basis of more limited research and expert opinion, and describes approaches that may be promising but that require further research. The background papers prepared for the workshop and modified on the basis of discussion at the workshop are included in the circular. A copy of the report was sent to all US state Governors in the hope that it would encourage states to take further action to reduce the tragic toll of drinking and driving.

KEY FEATURES FOR DEALING WITH THE PERSISTENT DRINKING DRIVER

The cornerstone of any program to address the problem of the persistent drinking driver is a comprehensive and efficient system for imposing and enforcing license penalties. Such a system includes the following components:

All States need the basic foundation of providing for prompt and certain revocation of the driving license for first and repeat offenders--the sanction found to be most effective. Administrative license revocation (ALR) is the best way to achieve this goal.

Administrative license revocation has been found to be effective both as a general and as a specific deterrent. It is agreed generally that the best way to maximize the general deterrence effects of a law is to increase the certainty and swiftness of punishment. Unfortunately, the usual penalties applied through the judicial process to drinking drivers are far from swift or certain. The judicial process is slow under the best of circumstances, and a determined offender can engage in delaying tactics that can postpone punishment almost indefinitely. The average length of time between the offense and the imposition of any penalty can be 6 months (Stewart et al. 1987). Often, no penalty will ever be exacted. Offenders can plea bargain down to a lesser offense. Charges may be dismissed or offenders judged not guilty because of technical problems in the case. Research has shown that administrative revocation is effective in discouraging people in the general public from driving after drinking. One study (Zador et al. 1989) concluded that these laws reduced fatal nighttime crashes (which are likely to involve alcohol) by about 9 percent. These findings were supported by another study of 17 states with administrative revocation laws (Sigmastat 1989) that found a 6 percent average reduction in fatal crashes.

States should improve their traffic records and the delivery system for information to the courts and the police officers on the road. In this way, prosecutors and judges will have access to the complete prior record of the offender when charging and sentencing. In addition, the officer coming in contact with a driver will have the ability to quickly ascertain if that driver is legally licensed to drive and if that driver has been involved in an alcohol-related driving offense in the past. This information will allow officers to accurately identify, at the scene, repeat offenders and those who are driving illegally. The officer then can apply the full range of administrative sanctions the state permits to be taken against these offenders.

Common sense suggests that courts should have access to accurate driver records so that the appropriate penalties can be applied. It also makes sense that the easier it is for a police officer to determine the past alcohol-related traffic history of a driver stopped for a DWI offense, the more effective that officer will be in identifying those drivers who have prior DWI convictions or a record of DWI administrative actions. Easier determination of past alcohol-related traffic histories will allow the officer to apply the appropriate sanctions to the offender.

Driving while a license is suspended, revoked, or otherwise invalid, because of a DWI or a related offense, such as for a refusal to submit to a breath test, should be treated as a very serious offense.

This feature is one of the major areas needing attention. Although license suspension has been shown to be one of the more effective driving under the influence (DUI) countermeasures, driver compliance with the law is poor and enforcement is low. Among the problems identified through a series of California studies are (1) approximately 75 percent of suspended drivers at least occasionally drive while suspended, (2) the majority of traffic convictions and accidents that occur during periods of suspension/revocation are not prosecuted as suspension violations, (3) minimum mandatory fines and jail sentences often are not levied against those drivers convicted of suspension violations. There is also a frequent failure to increase or graduate sanctions as a function of a number of prior convictions, even when statutory requirements mandate graduated sanctions. This problem is prevalent in many states (Peck et al. 1995).

Analysis of Fatal Accident Reporting System (FARS) data for California for 1991 and 1992 indicates that 13 percent of all fatal-accident drivers were suspended or revoked at the time of their accident. Data from California's driver record files indicate that approximately 6 percent of all drivers are suspended at any point in time. It therefore seems clear that effective strategies for increasing suspension compliance offer much potential.

States should eliminate programs that permit drivers arrested for DWI to avoid losing their licenses by entering a treatment or education program. Any treatment or education program should be in addition to the loss of license. Entering such programs could help to shorten the suspension period or be made a condition of relicensure. In the same vein, entering such a program should not result in the DWI arrest not appearing on the driver's record.

There are programs in use in a number of states that permit certain DWI offenders to be diverted from the traditional sanctions, including license suspension, and into alcohol education or treatment programs. Although these programs have the apparent benefit of encouraging persons to seek treatment for drinking problems, the programs are too often used in place of sanctions with known effectiveness in reducing crashes and violations. Furthermore, these programs can result in major distortions in an individual's record. The National Transportation Safety Board (NTSB) (1984), the Presidential Commission on Drunk Driving (1983) and others have recommended that these diversion or supervision programs not be used in place of license revocation and that court and motor vehicle records reflect participation in diversion/supervision programs. The evidence is also very clear that diversion to treatment (with either unrestricted or limited license) leads to higher accident and violation rates than full license suspension (Nichols and Ross 1990).

For those drivers who persist in driving with a suspended license for a DWI offense, the next step is to separate them from the vehicle they were driving when caught driving illegally, and possibly from any other vehicle to which they might have access. As has been proven effective with the licensing sanction, this vehicle sanction should be applied administratively, although it may take a number of forms. For example, the vehicle can be impounded, immobilized, or confiscated, or the license plates can be seized.

Persistent drinking drivers have demonstrated by their repeated violation of the law that they are not affected by the loss of their driving license or other sanctions routinely applied to offenders (Ross et al. 1995). Other steps must be taken to separate these individuals from the vehicles they might drive. The most straightforward approach to intervening between a drinker and a vehicle is some variation of temporarily or permanently taking the vehicle as part of the punishment for a repeat drunk driving offense. At the most extreme, the vehicle used in the offense, if owned by the offender, is confiscated by the state. A less severe penalty is to immobilize the vehicle for some time, through impoundment either in a tow lot or on the offender's property using a "club" or "Denver boot" technology. A variation on impoundment is removal of the vehicle's license plate, which makes it impossible to drive the car without attracting police attention, or stickering the plate to achieve the same effect (Ross et al. 1995). The most effective option is to apply the vehicle sanction administratively as most states are now applying the driving license sanction. Law enforcement and vehicle licensing agencies could administer this penalty without involving the courts. Perhaps the best evidence for the superiority of administrative actions against vehicles compared with court administered programs was provided by the study conducted by Rodgers (1994), who found that police-issued impoundment had one-half the recidivism rate (8 percent at 12 months and 13 percent at 24 months) compared with violators in this group who received no impoundment order.

Other key or promising features of an effective program include:

Licenses reinstated following a DWI conviction should carry a lower legal BAC limit. Alcohol detected at or above this lower limit would be a basis for re-revoking a driver's license.

When the State of Maine lowered its legal BAC from .10 percent to .08 percent in 1988, it also lowered its BAC to .04 percent for persons with a previous operating while impaired conviction. As noted previously, Hingson in press examined the results of the law by comparing the experience in Maine with those in New Hampshire and Vermont for the first 3 years after the law went into effect. Nighttime fatal crashes involving drivers with previous operating while impaired convictions declined 38 percent in Maine during the 3 postlaw years, whereas they increased 50 percent in New Hampshire and Vermont, a highly statistically significant difference.

At checkpoints, officers should check for valid licenses.

Checkpoints offer the opportunity to detect persons driving with a suspended or revoked driver's license because result of a drinking and driving conviction. These checkpoints may be safety, traffic, belt-use, or sobriety checkpoints.

In most states, officers at a checkpoint may examine the license of every driver or a random sample of drivers passing the checkpoint location. The license examination provides an opportunity to apprehend individuals who might be driving in violation of their license sanction. Often, when this technique is used at sobriety checkpoints, more unlicensed than impaired drivers are found.

Special enforcement campaigns aimed at the persistent drinking driver should be carried out, such as the "Hot List" of multiple DWI offenders or the "Stakeout" of drivers who have lost their licenses, to check if they are driving.

A number of special programs have been designed to apprehend drivers who, even though they were prohibited from driving, continue to do so. The state of Ohio, as part of its Habitual Offender Program, instituted in 1991 the Habitual Offenders Tally, or "Hot" sheet, which lists offenders who have been convicted of DUI five or more times and whose driving privileges are currently suspended. Hot sheets for each county are tabulated and shared with each state trooper, local police departments, and sheriffs' offices for more effective targeting of those who continue driving while under suspension (Perlman 1994). The Ohio Department of Public Safety (DPS) distributes Hot Sheet News, a monthly newsletter to law enforcement agencies, judges, courts, and other interested parties. The publication reviews all multiple offenders who are apprehended and the agencies involved in the arrests. A special law enforcement awards program also recognizes the efforts of officers who have made an arrest of a multiple offender. From August 1, 1991, to May 1, 1994, 1,398 habitual offenders were arrested. This program has contributed to a 30 percent reduction in alcohol-related crash deaths in Ohio from 1990 to 1993 (Ohio DPS 1994).

All juvenile DWI offenders should be prosecuted as adults, and the record of these offenses should be preserved after the offender reaches adulthood. These actions will permit early identification of young adults who are becoming persistent drinking drivers.

Current laws in many states treat impaired drivers under 18 differently from adults. In particular, they may allow the young driver to be diverted into an education program that results in the offense being removed from the driving record. Although this type of program may seem like a good way to give a young driver a second chance, it may instead prevent the driver from being identified as a problem drinking driver and receiving needed penalties and treatment.

This is not a new concept. In its 1984 study on repeat offenders, the NTSB recommended that all state governors work to develop record systems in their states that preserve records of alcohol-related traffic offenses committed by juveniles after the offender reaches adulthood (Sweedler and Smith 1984).

Refusal to take a breath test should receive the same or greater administrative penalty as a positive test result.

With increased penalties for second and subsequent DWI offenses, some persistent drinking drivers are refusing to submit to the requested BAC tests. Because obtaining a conviction of the DWI offense is more difficult without the results of a test, the arrested offender may believe that he or she may receive a lesser penalty if the test is refused. Laws should be such that refusals result in at least the same penalty as a positive test result does or in an even greater penalty. For example, if failure of the test would result in a 90-day administrative suspension of the driver's license, refusal might carry a 180 day suspension. In addition, the offender's record should show the refusal, and it should count as a positive test result for determining, on subsequent arrest, whether the driver is a first or repeat offender.

The legal BAC for all drivers should be reduced to .08 percent. This measure reduces drinking and driving among all drivers, including persistent drinking drivers.

Evidence is beginning to emerge that lowering BAC for adults to .08 percent, will result in reducing drinking and driving among the general populations, as well as among the persistent drinking driver. Currently, 12 states in the United States have reduced their BAC limit to .08 percent. Almost all other industrialized countries have BAC limits of .05 to .08 percent, with some of them having even lower BACs.

The National Center for Statistics and Analysis in the NHTSA has recently released a report that analyzed 6 different measures of driver involvement in alcohol-related fatal crashes in each of 5 states; 30 comparisons in all (NHTSA 1994). It found statistically significant decreases in 9 of the 30 comparisons, non-significant decreases in 16, and non-significant increases in 5. The report concludes: "This preliminary assessment appears to indicate that the implementation of 0.08 BAC laws and other associated activities (such as public information campaigns drawing attention to the change) are associated with reductions in fatal crash driver alcohol involvement."

While these are the key features, there are numerous other steps that States can take including alcohol assessment and rehabilitation of DWI offenders, limits on alcohol sales, changes in the tax structure, programs to limit youth access to alcohol, passage of "zero tolerance" laws for drivers under 21, targeted media campaigns, responsible alcohol beverage service practices, treating first offenders with very high BACs as repeat offenders, the use of interlocks as a condition for license reinstatement, and other measures.

REFERENCES

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National Highway Traffic Safety Administration, Press Release No. NHTSA 12-95, Washington, D.C., 1995.

National Transportation Safety Board, Safety Study: Deficiencies in Enforcement, Judicial, and Treatment Programs Related to Repeat Offender Drunk Driver, NTSB/SS-84/04, Washington, D.C., 1984.

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