Prosecution, Adjudication, and Sanctioning: A Process Evaluation of Post-l 980 Activities

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1 113 Judicia and Administrative Processes Prosecution, Adjudication, and Sanctioning: A Process Evauation of Post- 980 Activities James L. Nichos, Ph.D., Kevin E. Quinan Nationa High way Tiafic Safety Administration Any serious program to reduce acoho-reated crashes must seek to accompish two objectives: (1) reduce the recidivism of apprehended offenders by deterring, incapacitating, or rehabiitating them and (2) deter the genera popuation from driving whie intoxicated (DWI) or impaired. Of these two objectives, the atter is much more important than the former. The majority of acoho-reated fata and serious injury crashes invoves drinking drivers who have not been previousy apprehended for DWI. According to the most compete and objective estimates avaiabe, neary 75 percent of a acoho-reated fata crashes invove drivers who have never before refused or faied a chemica test for acoho (Lewis 1985). If a the DWI offenders arrested this year were incapacitated, fewer than 5 percent of next year s acoho-reated fata crashes woud be reduced (Nichos 1988a; Stering- Smith 1976). This being the case, a M-percent reduction in recidivism appied to everyone arrested for DWI woud resut in a reduction in next year s acoho-reated fata crashes of about 2 percent. This is not an insignificant number. Appied nationay, it woud account for an annua reduction of neary 500 fataities. Furthermore, many of the repeat DWIs invoved in acoho-reated crashes are chronic offenders who show a compete disregard for the aw and must be deat with in an effective manner. However, there is a more important reason to dea with a arrested offenders. What happens to these peope provides the basis for deterring the much greater number of offenders who have not been caught. On any given weekend night, even in a high enforcement area, fewer than 1 in 500 drunk drivers are arrested for DWI. In most jurisdictions, fewer than 1 in 1,000 are apprehended. Over a fu year, ony about 1 in 20 persons who reguary drive whie intoxicated are apprehended. Uness something is done to deter offenders who have not been arrested, they wi continue to drive impaired and wi be invoved in approximatey 18,000 acoho-reated fataities each year. The foundation for deterring these drivers depends on their perception of the ikeihood of being apprehended and on their perception of what wi happen to them if they are apprehended. They have ony the past, pubicized performance of the enforcement, judicia, and icensing systems on which to base their perceptions. That is why the prosecution, adjudication, and sanctioning components of the driver contro system are so essentia to reducing acoho-reated fata crashes. Not ony do they constitute a NOTE During the period of this writing, Mr. Quinan was on detai to the Nationa Transportation Safety bard where he is now empoyed.

2 114 mechanism for changing the behavior of known offenders, they aso provide a basis for estabishing effective genera deterrence. In the past, the judicia and administrative systems have not korked we, individuay or together, in providing effective and efficient processing and sanctioning of DWI offenders. There has been very itte consistency from one court to another in deaing with DWI offenders. Prosecutors have had excessive caseoads and itte training. Judges have been overwhemed and, at east occasionay, disinterested in the DWI probem. Attorneys have speciaized in defending DWI offenders and have created many obstaces to efficient prosecution, adjudication, and sanctioning During this decade, the pubic has become much more interested in the DWI probem than ever before. In fact, for a short time, driving whie intoxicated was one of the more pubicized socia probems. In addition to generating media interest in drunk driving, citizen activist groups such as Mothers Against Drunk Driving (MADD) and Remove Intoxicated Drivers (RID) demanded the prosecution and sanctioning of drunk drivers to the fuest extent of the aw. As a resut, State egisatures passed a myriad of aws, many of H;hich have not been impemented as intended (Quinan 1987). Legisative Changes Since 1980 Some progress was made during the 1980s to dea more effectivey with drinking drivers. Most of the egisative changes are documented in a series of egisative digests deveoped by the Nationa Highway Traffic Safety Administration (NHTSA). The most recent of these digests covers egisation passed through December 1987 (Hatos 1988). Thousands of DWI bis were considered by the States and hundreds were enacted. Legisation focused on issues such as reducing or eiminating pea bargaining, increasing the certainty of icense suspensions, encouraging hard suspension of driving privieges, mandating jai or community service, and providing enhanced penaties for repeat offenders and for those causing injury or death. By the end of i987,25 States had a mandated minimum icense suspension period for a first DWI conviction; 43 States and the District of Coumbia mandated icense suspension after a second DWI conviction (usuay for a onger period), and 45 States mandated suspensions for third or subsequent convictions (Hatos 1988). To counteract the many deays and inconsistencies that had characterized the courts during the 197Os, neary haf the States passed aws permitting administrative icense withdrawa for drivers who faied a chemica test for acoho. Even with these administrative per se aws, however, many States sti used restricted and probationary icenses, thus softening the impact of icense sanctions. In 1982, Congress passed the Acoho Safety Incentive Grant Program, commony caed the Section 408 program. This program provided additiona funds to States that mandated prompt and minimum hard suspension periods for a offenders, had iega per se aws, mandated 48 consecutive hours of jai or community service for repeat offenders, and provided evidence of increased enforcement and pubic information efforts. By October 1988, 21 States had adopted such provisions and were quaified for Section 408 grant funding. Fataities invoving an intoxicated driver decined to a greater extent (and more rapidy) in the first 10 of these States, compared with nonquaified States. A second group of 6 quaified States showed somewhat smaer decreases than the first 10, but sti showed ower eves than the nonquaified States (Levy 1987). The increased seriousness with which the acoho-impaired offense was being perceived by the egisatures was refected in the introduction of mandatory minimum jai sentences for first offenders. By the end of 1987, 14 States mandated minimum jai

3 JUDICIAL AND ADMINISTRATIVE PROCESSES 115 sentences for first-time DWI convictions, and 42 States mandated jai for second convictions (Hatos 1988). Generay, changes in sanctions resuted in progressivey more severe sanctions for more frequent offenders. This refected some toerance for irst offenders but ess toerance for second and subsequent offenders. By 1988,23 States had habitua offender aws (Hatos 1988). Impact of Leg,isative and Other Program Changes Since 1980 Most States increased DWI arrests from 1980 to 1983, with concomitant increases in the number and proportion of offenders who were prosecuted, convicted, and sanctioned. A significant increase in pubic and media attention to the probem was evident through 1983, as we. After 1983, arrests, convictions, sanctions imposed, and media attention decined. Meanwhie, however, most States experienced reductions in the acoho-reated proportion of their fata crashes unti 1985 or 1986, when the proportion of such crashes began to eve-off or rise again (Nichos 1988u). Foowing are experiences from two States. Forida The State of Forida provides an exampe of how pubic interest in drunk driving resuted in egisation and significant increases in enforcement, prosecution, conviction, and sanctioning of offenders. An evauation of the Forida experience (Sotter 1986) indicated that traffic fataities in Forida increased from 1978 through 1981 aong with a steadiy growing pubic concern over drunken driving. The pubic perceived that sentences for driving under the infuence (DUI) were too ight and acked uniformity and that a number of oophoes existed. As a resut, egisation was passed in 1982 that increased mandatory minimum ines and icense suspension periods for both first and repeat DWI offenders. In addition, the new aw mandated 50 hours of community service for frost-time offenders. According to the 1986 report, the 1982 egisation (and the debate that preceded it) were accompanied by an increase in arrests, convictions, and icense actions for DUI. The average number of days of icense revocation for DUI increased from approximatey 150 prior to the aw to more than 500 by November The number of permanent revocations aso increased dramaticay. Athough the provisions of the new aw were not intended to increase the use of confinement, the number of jai sentences increased by 55 percent from 1981 to Repeat offender convictions increased by approximatey 20 percent over that same period. Requests for jury trias remained at ess than 3 percent in a counties. Athough chemica test refusas were ow, they were higher for repeat offenders than for first offenders, and conviction rates were ower for repeat offenders who refused such tests. Foowirig the increases in arrests, convictions, and sanctions, nighttime fataities began to drop, reaching a ow in It was specuated that the reduction in fataities woud not have occurred without the significant increase in enforcement by the Forida Highway Patro. However, most officias fet that the increased number of convictions, icense actions, and other sanctions contributed to this reduction as we. Further examination of the Forida experience suggest that the reductions in nighttime fata crashes have been maintained. Data from the Fata Accident Reporting System (FARS) show that the nighttime proportion of a fata crashes decined from 63

4 116 BACKGROUND PAPERS percent in 1982 to 59 percent in 1984 and has remained at approximatey that eve through The proportion of fata crashes that were singe-vehice, nighttime crashes dropped from 41 percent in 1982 to 36 percent in 1987 (Nichos 19988b). + As in Forida, severa States (e.g., New York, New Jersey, Kentucky, Coorado, Utah) had initia increases in arrests, prosecutions,.and convictions, foowed by reductions in acoho-reated fata crashes. In most cases, the increases in arrests and convictions were temporary, athough o- to 5-percent reductions in the acoho-reated proportion of fata crashes were usuay maintained. North Caroina North Caroina provides a somewhat different exampe in that the number of arrests and convictions actuay decreased. In addition, North Caroina is 1 of more than 20 States that passed administrative icense suspension aws to increase the certainty and swiftness of icense sanctions. In June 1983, the egisature enacted the Safe Roads Act (SRA), which made major revisions to the State s drunk driving aw. North Caroina aready had a high DWI arrest rate but a very ow conviction rate. The egisature intended to further deter driving whiie intoxicated by imposing more certain and uniformy severe sanctions. The new aw incuded short-term (administrative) icense suspension for a chemica test refusa or faiure; mandatory jai for mutipe offenders and those invoved in more serious cases; strict sentencing guideines; eimination of esser incuded offenses which had been aternatives for pea bargaining; and severa provisions designed to deter young drinking drivers. A series of reports have described the impact of the North Caroina Safe Roads Act (Lacey et a. 1984, Lacey 1987,1988). In contrast to the Forida experience, the number of DWI arrests and the tota number of convictions decined foowing impementation of the aw. However, the proportion of arrested drivers who were convicted increased significanty (from 59 percent in 1982 to 68 percent in 1986), particuary at BACs of 0.10 and above (from 72 percent in 1982 to 91 percent in 1986). The courts appeared to foow the intent of the aw by neary aways sentencing persons convicted of more serious eves of DWI (e.g., higher BACs, mutipe offenses) to jai and ess serious eves to community service. The number of persons receiving icense suspensions aso increased significanty. The administrative suspension aw resuted in immediate (o-day) icense suspensions for virtuay a persons refusing or faiing a chemica test. In short, drinking drivers faced a greater certainty of receiving some sanction once arrested. Some probems surfaced foowing impementation of the new procedures. Because the mandatory jai terms were usuay served on weekends, jai overcrowding during these periods became a probem. In addition, the more compex and engthy paperwork associated with processing cases through the court system taxed the manpower resources of the courts. In spite of these probems and the reduction in arrests, North Caroina apparenty did achieve some additiona certainty in the conviction and sanctioning of arreste drunk drivers. More importanty, the changes in the way of handing drunk drivers were foowed by a significant decine in the acoho-reated percentage of serious and fata crashes, particuary for youthfu drivers. Data from North Caroina (and from FARS) indicated that both the acoho-reated and nighttime proportions of fata crashes decined through 1985, after which they remained essentiay eve. The decines were somewhat greater than in Forida, ranging from o-15 percent for nighttime fata crashes to percent for the acoho-reated proportion of drivers kied. In North Caroina, the administrative icense suspension aw, ower BAC eves for drivers under age 21, provisiona icensing for drivers under age 18, raising the minimum

5 JUDICIAL AND ADMINISTRATIVE PROCESSES 117 drinking age, and aw enforcement efforts aimed at reducing the purchase of acoho by minors deserve specia mention. This combination appears to have provided a comprehensive set of deterrence measures aimed at youthfu drivers and centered around the oss of driving privieges. Most importanty, these measures were accompanied by 50- to 60-percent reductions in the acoho-reated proportion of crashes invoving young drivers. These reductions are of a magnitude not frequenty experienced and, according to the most recent anaysis (Lacey 1988), the reductions have been sustained. Other States Enacting Administrative Per Se Laws As in North Caroina, most States that enacted administrative per se aws were abe to show reductions in acoho-reated fata crashes foowing their impementation. Many have aso increased their emphasis on judiciay imposed sanctions. Athough the majority of these States aso experienced increases in arrest rates (e.g., Okahoma, Nevada, Coorado, and Utah), a few did not. North Caroina, Wisconsin, Oregon, and Indiana provided evidence that, even without increases in arrests, increases in icense actions were accompanied by decreases in the acoho-reated and nighttime proportions of fata crashes. Media and pubic attention were undoubtedy major factors as we. In some States with administrative per se aws (e.g., Maine, North Caroina, Oregon, and Wisconsin), the decine in the acoho-reated (or nighttime) proportions of fata crashes has eveed out but appears not to have reversed. In other administrative per se States (e.g., Coorado, Indiana, Mississippi, Missouri, Nevada, Okahoma, and West Virginia), initia decines in these indices were foowed by sight increases around 1985 or 1986 but by further decines in In sti other such States (e.g., Iowa. Louisiana, and Utah), initia decines in the acoho-reated or nighttime proportions of fata crashes were foowed by recent increases that have not been reversed. Finay, in some States (e.g., Aaska and Wyoming) the enactment of administrative per se aws was foowed by variabe patterns in these indices (Nichos 1988b). Overa, a study by Zador, Lund, Fieds, and Weinberg (1988) found that the adoption of administrative per se aws by 18 States resuted in approximatey 9 percent fewer acoho-reated fataities. Changes in Caseoad, Convictions, and Sanctioning Just how much increase in judicia caseoad accompanied the egisative emphasis of the 198Os? Surprisingy, it does not appear that the increases in arrests, fiings, and convictions were dramatic. In most States, increases in arrests preceded major egisation. On a nationa basis, for exampe, DWI arrests increased by about 13 percent from 1978 to 1980 and by 27 percent from 1980 to Arrests then decined by about 2 percent from 1983 to 1986 (FBI 1987). Whie most States passed DWI egisation throughout the period, the greatest activity for major egisative packages appears to have been from 1981 to A review of DWI arrests from the reports avaiabe indicated that, during the years immediatey surrounding major egisation in the various States, changes in the numbers of drivers arrested for DWI varied from 30-percent decreases (e.g., North Caroina) to 50- to 60-percent increases (e.g., Forida and Minnesota). Using 1980 as a baseine, increases of 20 to 30 percent in the numbers arrested were typica (e.g., New York, New Jersey, Utah, Coorado, and Caifornia). Arrests began to eve off or decine in most States by Changes in the numbers of offenders convicted of DWI varied from 20-percent decreases to increases of 50 percent (e.g., Kentucky) over baseine eves. Most of the States appear to have increased the number of convictions by percent. Estimated

6 118 BACKGROUND PAPERS conviction rates generay varied from 70 percent to 90 percent, usuay with initia increases foowed by decreases to near baseine eves. \ v Foowing is a samping of States, from east to west, for which arrest, conviction, or sanctioning information was found. These data provide an idea of the magnitude and timing of arrest and caseoad changes that occurred after 1980, as we as changes in sanctioning poicies. Maine impemented major egisation in Arrests increased 29 percent from 1978 to 1981 (prior to the aw) but ony 7 percent from 1981 to 1983 (after the aw). Arrest rates returned to preaw eves by Over the 6-year period surrounding the egisation, conviction rates increased from 66 percent to 90 percent of those arrested (Hingson et a. 1987). Massachusetfs impemented major egisation in Hingson et a. (1987) found that arrests increased by 20 percent in the 3 years prior to the 1982 aw and 29 percent after the aw became effective. Convictions increased by 31 percent. The use of jai increased dramaticay from 1980 to 1983 (Massachusetts Senate Report 1984,1986). New York impemented its STOP-DWI egisation in 1981, Arrests increased for 3 successive years foowing the egisation, then decined sighty. In 1985, there were sti 32 percent more arrests and 42 percent more convictions than in The conviction rate increased from approximatey 82 percent in 1980 to 89 percent in The use of jai sentences increased by 56 percent (New York DMV 1985,1986). In New Jersey, DWI arrests increased by 33 percent from 1980 to 1982, then began to decine. Convictions showed a simiar trend. By 1985, DWI arrests were 15 percent above their 1980 eve. Convictions were ony 6-percent higher, having decreased significanty after The annua conviction rate varied between 79 and 90 percent of those arrested, with an average of 85 percent over this period (New Jersey Department of Law and Pubic Safety 1986): Kentucky passed major egisation in DWI arrests increased the first year foowing the aw, then decined. By 1986, arrests were ony 3 percent above the 1983 eve, but convictions were sti 56 percent higher than in The conviction rate increased from 49 percent in 1983 to 72 percent in 1986 (Kentucky Division of Driver Licensing, persona communication 1988). Indiana impemented major egisation in 1982 and Arrests remained eve, but the number convictions increased by 18 percent after the 1983 egisation. The conviction rate increased from 63 percent to 77 percent. When no BAC information was avaiabe, the conviction rate was ony 48 percent. In contrast, the conviction rate for the more serious feony DUI charge was 95 percent. The proportion of convicted offenders receiving icense suspensions in Indiana increased from 50 percent before the 1983 aw to 70 percent after the aw, but a convicted offenders shoud have received a courtordered icense suspension. Simiary, according to Foey et a. (1986), a offenders shoud have received an administrative icense suspension foowing the fiing of an affidavit by the arresting officer, but in 20 percent of the arrests, no affidavit was fied. Approximatey 90 percent of the offenders received tines. The proportion of convicted recidivists who received a jai or community service sentence increased from 70 percent to 75 percent. The majority of fines and icense suspensions was served as sentenced, but approximatey two-thirds of the jai sentences were never served (Foey et a. 1986; Automotive Transportation Center 1986; Indiana Governor s Task Force 1987). msconsin impemented new egisation in mid Arrests decreased by 17 percent from 1980 to 1982 (prior to the aw) and remained approximatey eve from 1982 to However, icense suspensions increased by 50 percent from 1980 to 1982 and by another 40 percent in In 1983, virtuay a offenders arrested for Operating Whie Intoxi-

7 JUDCfiL AND ADMNSTRATM PROCESSES 119 cated (OWI) ost their driving privieges through a combination of judicia and administrative sanctions (Bomberg et a. 1987). In Minnesota, comprehensive egisation was passed in DWI arrests increased - each year from 1981 through 1984, then decined sighty through In 1986, arrests were sti 60 percent above their 1980 eve. Information on convictions was not avaiabe, btt icense revocations increased by 40 percent. However, whie the number of administrativey imposed icense actions increased by 180 percent, the number of courtimposed icense revocations decreased by 65 percent (Minnesota Department of Pubic Safety 1987). As in North Caroina, this suggested that the administrativey imposed icense actions may have been substituted for judiciay imposed icense actions. In Minnesota, officias have indicated that most first offenders who receive administrative icense revocations are granted restricted driving privieges rather than hard icense suspensions. Missouri egisation was impemented in 1982 and DWI arrests increased by 14 percent from 1981 to 1983, decreased by 19 percent from 1983 to 1985 and increased again by 17 percent in 1986, when they were 7 percent above the 1981 eve (Bruce and Bruce 1988). Coorado impemented major egisation in DWI arrests increased by44 percent from 1980 to 1984, then decreased from 1984 to Arrests were 21 percent higher in 1986 than in Convictions for DWI increased by 38 percent from 1981 to 1983 (Coorado Division of Highway Safety 1984, persona communication 1987). Washington impemented major egisation in City and county poice increased their DWI arrest activity. Washington State Poice first decreased their DWI arrests from 1978 to 1980, then increased such arrests from 1980 to This pattern is very different from that in most States such as New York, Forida, Arizona, and Caifornia where State poice agencies produced the initia increases in DWI arrests. After the egisation was impemented in Washington, convictions for DWI increased by 50 percent and convictions on a acoho-reated driving offenses increased by 21 percent. Overa, a conviction rate of just over 80 percent of those adjudicated was maintained. A significant shift away from pea bargaining ocurred. The mean daiy popuation of persons incarcerated for DWI offenses increased by approximatey 96 percent from mid-1981 to mid-1983, but there was an increasing tendency for courts to recommend no icense suspension for fust DWI offenders. By 1982, neary haf of the first offenders avoided icense suspension (Kingberg et a. 1984).,, A More Detaied Look at Changes in DWI Processing The exampes described above give an overview of the types of statewide changes in caseoad and sanctioning poicies that the courts experienced during the 1980s. However, these exampes do not provide an adequate view of the effects of egisation on court processing parameters such as prosecution poicies, court congestion, deay of dispositions, records avaiabe, and enforcement of sanctions. To get a better idea of these effects, the Caifornia experience is described in more detai, using information from studies of Los Angees County (Boch and Aizenberg 1985), Aameda County (Heppere and Kein 1985), Santa Cara County (Lang 1986), and the State as a whoe (Perrine 1984; Heander 1986; Stewart and Laurence 1987). Many of the probems that were identified by these reports were characteristic of the probems experienced by other States. Summary of Caifornia Legisation The new aws that became effective in 1982 in Caifornia were very simiar to aws

8 120 BACKGROUND PAPERS passed in other States. They provided for (a) an iega per se offense at 0.10 acoho concentration; (b) an attempt to imit judicia discretion; (c) increased fines; (d) potentia jai terms for a offenders and mandatory jai terms for repeat offenders; (e) increased use of icense restrictions; and (f) restricted pea bargaining (Stewart and Laurence 1987). Caifornia did not pass an administrative per se icensing aw. Statewide, DUI arrests increased by 18 percent from 1979 to 1981 (preaw) and by another 6 percent from 1981 to 1983, but then decined by approximatey 2 percent from 1983 to 1985 (Heppere and Kein 1985; Lang 1986). The conviction rate for persons arrested for driving whie under the infuence increased from 61 percent in 1981 to 68 percent in 1982, an increase of 11 percent. An additiona 4 percent of offenders were convicted of acoho-reated reckess driving (Perrine 1984). Aameda County The report by Heppere and Kein (1985) reviewed the effects of the 1982 aw in Aameda County. It indicated that court processing of DUIs became more compex and engthy because of the 1982 aw. This finding is parae to findings in Los Angees County and in Forida. The average time to cose a DUI case increased from 48 days (in 1981) to 86 days (in 1983~84), an increase of neary 80 percent. This occurred because more defendants had attorneys and waited onger in the process (usuay unti the pretria hearing) before pieading guity. Before the aw, over haf peaded guity or no contest at arraignment. By , ony 38 percent did so. The percentage of same day dispositions decined from 32 percent (in ) to 23 percent (in 1983&), a decrease of 28 percent. Sti, as in most other States, more than 80 percent of the offenders eventuay peaded guity. It simpy took more court time and effort. Litte evidence was found of pea bargaining, athough approximatey 16 percent of arrests faied to resut in the fiing of a DUI charge. These cases usuay invoved a BAC ess than 0.13 percent or (asin other States) a test refusa. Ony 4 percent of the samped cases went to tria, and more than 80 percent of these trias resuted in convictions, compared with 73 percent in Reative to sentencing, the aw resuted in higher fines, onger terms of probation, and frequent use of mandatory DUI schoo and driver s icense restrictions (not fu suspensions or revocations). Jai and icense suspensions were generay reserved for second or third offenders, and straight jai was ess often imposed than weekend work and work furough. Seventy percent of those sentenced received fines of $500 to $700, not incuding the cost of schoo, treatment, or weekend work. Ninety-five percent of a sentences incuded probation, usuay with miniia supervision. The use of 90-day icense restrictions increased, but these restrictions sedom resuted in the tota oss of driving privieges. In over haf the cases, no icense action was taken at a. Approximatey haf of ai defendants received jai sentences, but ess than a third of them actuay served such sentences. Most did weekend work. This was simiar to the Forida experience, where two-thirds of those sentenced to jai never served their sentences. In Aameda County, 55 percent of the defendants were repeat offenders. This is a high proportion, compared with the average of percent reported in most States. An estimated 2.5 percent of those convicted of DUI were rearrested within 2 years. The report recommended wider use of icensing suspensions (incuding administrative actions), vehice confiscation, and individua treatment. Los Angees County In southern Caifornia, Boch and Aizenberg (1985) evauated the effects of the 1982 aw on the Los Angees County courts, which processed more than a third of a the DUIs

9 JUDcbiie AND ADMINISTRATIVE PROCESSES 121 in the State. They found that the number of guity peas had been risig prior to the aw, hut not as rapidy as the number of fiings. Thus, a sow but steady decrease occurred in the proportion of cases resoved by a guity pea. After the 1982 aw, the number of guity peas dropped signiicanty, whie the number of fiings continued to increase, thus owering the conviction rate even more. Then, in 1983, whie the number of guity peas remained constant, the number of ftigs dropped. As a resut of these variations, the conviction rate fust decreased from 77 percent in 1981 to 68 percent in 1982, then increased to 73 percent in Overa, the conviction rate decreased by 6 percent from 1981 to Acquittas and dismissed cases increased by 68 percent and 78 percent, respectivey. However, they constituted ess than 4 percent of the dispositions of a fiings. Simiary, whie jury and bench trias increased by 55 percent and 7 percent, respectivey, they constituted ess than 2 percent of a fiings. This was comparabe to the 4 percent of fiings resuting in trias in Aameda County and 3 percent in Forida. Efforts to deay or avoid the effects of sanctions became much more common after the 1982 aw. Continuances, transfers, and faiures to appear increased by 78 percent, ZOO percent, and 23 percent, respectivey. As a resut, court backogs increased. The rate of dispositions to arrests went from 79 percent in 1981 to 72 percent in 1982 and back up to 77 percent in In spite of the increase in overa congestion, the report indicated that the courts were abe to function without arge-scae disruption or distortion. A review of FARS data showed significant reductions in both acoho-reated and nighttime proportions of fata crashes from 1982 through 1986 (Nichos 19886). Simiary, a review of studies by Boch and Aizenberg indicated reductions in acoho-reated crashes foowing the impementation of the aw (Boch 1983,1984, Boch and Aizenberg 1984; Peck 1983, 1984), athough Hiton (1983) cast some doubt that such reductions were caused by the aw. Boch and Aizenberg specuated that the Caifornia aw might have been more successfu had it paid more attention to increasing the certainty of punishment. They aso pointed out that no ong-term, statewide effort was undertaken to assist the courts in deaing with their congestion probems. Statewide Caifornia Studies In 1987, Stewart and Laurence competed a statewide study of the Caifornia experience. These researchers provided severa additiona insights. First, they pointed out that a survey of prosecutors in 12 counties indicated that neary a fet that the new iega per se aw heped reduce pea bargaining and aided in the prosecution of DUI cases. Sti, 90 percent of the convictions were under the oder, presumptive DUI statute, and ony 5 percent were under the per se statute. An additiona 5 percent of convictions were under both statutes. In addition to the per se aw, the practice of pea bargaining was further restricted by the new aw. DU charges coud no onger be reduced to simpe reckess driving, but coud be reduced to acoho-reated reckess driving. The atter charge woud be counted as a prior DUI if the offender was rearrested within 5 years. Prior to the aw, the conviction rate was higher for repeat than for first offenders. After the aw, the conviction rates for the two groups were approximatey equa. Despite the pubic outrage over DUI crashes that resuted in death or injury, feony DUI cases apparenty were not vigorousy prosecuted. The Department of Motor Vehices (DMV) reported a conviction rate of ony 27 percent on feony DUI charges, compared with a conviction rate of 69 percent for misdemeanor DUI ch,arges (Perrine 1984). This was opposite to the findings in Indiana. Sti another study (Heander 1986) found that ess than 20 percent of DUI offenders invoved in a fata or injury crash were arrested for feony DUI and fewer than 20 percent of those arrested were convicted. In fact, 35 percent of those arrested for feony DUI showed no record of conviction on any

10 122 BACKGROUND PAPERS charge. Heander indicated that whie the aw had resuted in an increased conviction rate for first offenders, it ed to a decreased conviction rate for repeat offenders. \\. s The probem with feony DUI cases apparenty invoved severa aspects of processing, incuding the transferring and recording of information. In a study of more than 5,000 convicted first offenders who were enroed in education or treatment programs, 400 reported that their arrests had invoved an injury crash, and 99 reported that their arrests had invoved a fata crash. A review of DMV records for 245 of the offenders invoved in injury crashes and 60 invoved in fata crashes found that percent had no acoho-reated convictions of any kind on their record. Of the 60 records of drivers who reported having been invoved in a fata crash, not one showed a fata crash associated with DUI or reckess driving. In most counties, the courts had no information about the number of offenders at various processing stages in the system. Most counties had no fuy computerized recordkeeping systems. Thus, the court s records were often incompete, difficut to decipher, or irretrievabe. In addition, probems were found with the accuracy and competeness of DMV records. Sixty-two percent of fust offenders, reported as dropouts by treatment programs, were recorded by DMV as having competed the program. Twenty-three percent did not show a DUI conviction on their records. Eighty-one percent of repeat offender dropouts were not recorded as such by DMV (Heander 1986). The faiure of agencies, primariy the courts, to transfer information to the DMV prevented the imposition of mandatory icense actions that shoud have foowed dropout from treatment. Stewart and Laurence pointed to the importance of the recommendation of the Presidentia Commission on Drunk Driving regarding the need for a comprehensive, statewide tracking and reporting system. The 1982 aw aso resuted in more DUI offenders ordered to jai, to treatment, and to pay higher fines. More icense actions were imposed, but they were usuay icense restrictions, not actua suspensions or revocations. More offenders received probation and for onger periods, but few received any offtcia supervision. First offenders who received probation generay avoided mandatory icense actions. In 1984, the typica first or second offender sanction combination was a ine, probation, a restricted icense, and referra to a treatment program. Another frequent pattern for first offenders was a fine, probation, treatment, and a 2-day jai sentence in ieu of a icense restriction. Second offenders often received a higher fine, probation, and a onger jai sentence than first offenders (Heander 1986). There was a cear hesitancy to impose any form of hard icense suspension or revocation. This is ironic, since more evidence for the effectiveness of icense sanctions comes from the Caifornia DMV than from any other singe source (e.g., Hagen 1977; Peck et a. 1985; Tashima and Peck 1986). Some of the most important findings covered the enforcement of sanctions. The most common vioation of probation for first offenders was faiure to pay the ine (15 percent of first offenders studied). Because of jai overcrowding, fewer than haf the offenders sentenced to jai actuay spent time incarcerated. Often months passed before space was avaiabe for an offender to serve even a 2-day sentence. Weekend sentences made the probiem even more severe. Sometimes offenders woud register and be sent home because the jai was fu. Some jurisdictions aowed offenders to participate in supervised work programs. Enforcement of icense actions was particuary weak. The 1982 egisation increased the mandatory penaties for convicted DUI offenders who drove whie suspended or revoked. However, the conviction rate for such offenders fe substantiay after the new aw took effect, from 46 percent in 1981 to 26 percent in Stewart and Laurence specuated that prosecutors and the courts were resisting the enforcement of icensing sanctions. In summary of their statewide review, Stewart and Laurence suggested that whie the

11 JUDICIAL AND ADMINISTRATIVE PROCESSES 123 certainty of some punishment for first offenders occurred as a resut of the 1982 aw, the certainty of punishment for repeat offenders actuay decreased foowing impementation of the new aw. As in Forida, the swiftness of punishment decreased foowing the new aw in Caifornia. Furthermore, and perhaps most importanty, icense actions were appied uneveny and enforced weaky. In spite of the convincing evidence for the effectiveness of icense actions in reducing recidivism and in creating genera deterrence, actua suspensions or revocations were most often traded off for treatment, restricted icenses or, in some cases, Zday jai sentences. In addition, very itte emphasis was paced on enforcing icense actions when they were appied. These probems have been reported in a number of other States (e.g., Massachusetts, North Caroina, and Washington). Summary of Changes and Impacts What can we concude from the information reported by these States? Did the tougher aws of the eary 1980s make prosecution and adjudication more efficient or more difficut? Information from severa States suggested that iega per se, improved impied consent, and perhaps administrative per se aws faciitated prosecution and adjudication. On the other hand, more severe and mandatory sentences and anti-pea bargaining aws often increased the difficuty of processing cases. Thii increased difficuty ed to more frequent use of defense awyers, onger periods from arrest to case disposition and, in some cases, an increased number of trias requested (athough trias accounted for a very sma percentage of a dispositions in most jurisdictions). Furthermore, mandatory sentences were generay viewed unfavoraby by judges who frequenty found ways to circumvent them, particuary with regard to icense actions and jai sentences. Has egisation resuted in greater or esser certainty of conviction and punishment? In most cases, the certainty of conviction increased, at east temporariy. Most States reported increased numbers of persons convicted (argey due to increased arrests) and increased proportions of those arrested who were convicted. Administrative per se aws have increased the certainty of at east one punishment. In addition, restrictions on pea-bargaining made it more ikey that offenders woud be convicted on an acoho-reated charge. A 1986 NHTSA study indicated that anti-pea bargaining aws were effective, but that judicia cooperation was essentia. Some sites experienced sharp increases in conviction rates and, in other sites, aready high convictions rates were maintained. In Fort Smith, Arkansas, a study by Sura, Voas, Koons, and Reiner (1987) found that the eimination of pea bargaining resuted in a conviction rate increase from 72 percent (preaw) to 88 percent (postaw). It aso appears that more offenders received at east some sanctions, incuding ines, icense actions, jai, and community service. Whie this was true of icense actions as we as the other sanctions, many courts (and administrative agencies) appeared to have made an effort to avoid the use of hard icense suspensions. Was the severity of sanctions increased? Whie severity varied somewhat, most States reported increased eves of fmes, use of jai sentences (even for first offenders), and use of community service. Again, with icense actions, the answer was ess cear. Whie more offenders received some form of icense action, this was frequenty accompished by administrative icense actions that were ess severe (e.g., 90 days) than the maximum crimina sanctions (e.g., 1 year) that coud have been imposed by the courts. In severa States, courts did not impose icense sanctions if they were aready being imposed administrativey. Even in States without administrative per se aws, efforts were made to avoid using hard icense suspensions.

12 124 BACKGROUND PAPERS Have the existing procedures and aws deterred the drinking driver? Fewer drii drivers are on the road today than in the 1970s (IIHS 1987; Pamer and Tii 1986; Tii and Pamer, 1987). Aso, fewer drivers are at the higher acoho concentrations. Most importanty, neary every index of acoho-reated crashes has shown o- to 5-percent reductions in the probem since Greater reductions have occurred among young drinking drivers. Many factors have combined to cause these reductions. Among them are increased enforcement, pubicity, and pubic interest. However, the evidence regarding the effectiveness of sanctions, combined with the increased appication of sanctions in the 198Os, suggests that the increased prosecution, adjudication, and sanctioning activities have contributed to these reductions. What are the most effective sanctions? For the deterrence of first offenders and woud-be offenders (i.e., genera deterrent effect), the swift and sure appication of icense suspensions has been more effective than any other measure (Nichos and Ross, this voume), Evidence aso shows that signiticanty higher fines have had both specific and genera deterrent effects for first-time offenders (Home1 1981; Tashima and Peck 1986; Votey and Shapiro 1985). In addition, mandatory minimum fines can be used, as they are in New York State, to provide a funding mechanism for suppying the poice, prosecutors, and the courts with the resources they need to sustain a deterrent effort. Aso, 2-day jai sentences for first offenders can evidenty have both specific and genera deterrent effects (Fakowski 1984; Ceat-y and Rogers 1986; Zador et a. 1988; Jones et a. 1988). However, the use of a jai sanction is consideraby more costy than other sanctions and causes more disruption of the courts. Finay, for more severe repeat offenders, particuary chronic offenders, neither existing sanctions nor rehabiitation programs aone have had any significant effect. Confinement in specia faciities, with provisions for assessment and referra, can have some impact (Siega 1985). Ceary, more emphasis must be paced on keeping such offenders off the highways unti some medica evidence is provided that their drinking probems have been addressed. Has progress been made in deterring repeat offenders or suspended drivers from continuing to drive? For repeat offenders and those who continue to drive after icense suspensions, there is growing interest in more severe icense sanctions, icense pate confiscation, vehice impoundment or confiscation, and surveiance by specia patros. However, such actions have been inadequatey appied and evauated. This area deserves much more attention than it has received. How can we sove the existing DWI adjudication probems of the judiciary? If we take advantage of what we have earned from our past experiences and find more effective ways to communicate these findings to prosecutors, judges, egisators, and other offscias, we shoud be abe to increase the efectiverress of prosecution and judicia actions. The remaining probem wi then be eficiency. Effective prosecution and sanctioning efforts wi ikey continue to have adverse effects on the efficiency of the courts because of resistance by defendants and defense awyers. One recourse is to provide the courts with adequate resources so they can continue to function, taking whatever time is proper and necessary to carry out their duties. The courts can provide more certainty to the conviction and sanctioning process given adequate time and resources to do SO, Remaining Issues and Probems in Processing Apprehended DWs In the wake of the egisative changes of the 1980s and the increased arrests that accompanied these changes in many States, court overoad and backogs have presented

13 JUDICIAL AND ADMINISTRATIVE PROCESSES 125 continued obstaces to effective and efficient prosecution and adjudication of DWI offenders. Whie egisation (e.g., iega per se aws) has been passed to faciitate prosecution, more severe penaties have frequenty resuted in fewer guity peas (at east eary in the process) and more invovement by defense awyers. The resut has often been onger periods from arrest to disposition. In addition to case overoad, inadequate training of persons who are assigned DWI cases remains a major probem. Prosecutors, judges, probation officers, and other professionas in the adjudication system frequenty have imited understanding of the drunk driving probem and its compexities. Chief prosecutors consider most aw schoo graduates inadequatey prepared in procedura and tria advocacy skis. Usuay no forma entry training, other than a brief orientation, is provided for newy appointed assistants. In addition, most ower court judges receive itte or no training prior to their eection or appointment to the bench. A few States require continuing education programs for sitting traffic court judges during their tenure on the bench (Quinan 1987). The probems of court overoad and inadequate training, combined with the inherent independence of the judiciary, frequenty resut in the imposition of either inadequate or inappropriate sanctions. Litte knowedge or consensus exists about sanctioning poicies that woud be proper and effective. Knowedge about the effectiveness of various sanctions has ess often been taken into account than have operationa impacts. The resut has been a faiure to more effectivey change the behavior of those offenders who are apprehended and to more effectivey deter offenders who are not caught. In summary, the probems that remain in the processing of DUI offenders incude the foowing. a Overoad and backogs Inadequate training for prosecutors and judges Inadequate resources to avoid disruption of the system and distortion of sanctions imposed Pea bargaining (especiay to a non-acoho-reated offense) Excessive deays between arrest and disposition Offenders not prosecuted or con&ted on DWI charge Lack of consensus regarding effective sanctioning poicies Excessive and inappropriate exceptions to sanctions Diversion into education or treatment in ieu of, rather than in addition to, other sanctions Faiure to dea with offenders who vioate terms of sentences Faiure to more effectivey reduce recidivism Faiure to more effectivey deter offenders who are not caught Faiure to effectivey track offenders from arrest to competion of sanctions Many of the reports reviewed for this chapter, as we as a review of the iterature on the effectiveness of sanctions (Nichos and Ross, this voume), emphasized the importance of swift and sure icense suspensions in reducing acoho-reated crashes. In addition, severa studies pointed to the need for foowup to ensure that suspensions were not vioated. The use of surveiance patros, more severe suspensions, icense pate confiscation, vehice impoundment or confiscation, and confinement have frequenty been proposed for deaing with suspended offenders who continue to drive. A consensus appears to be growing that every reasonabe effort shoud be made to impose meaningfu, hard icense sanctions and to ensure that such penaties are fufied. A review of Missouri s experience with DWI egisation in the 1980s (Bruce and Bruce

14 126 BACKGROUND PAPERS 1988) pointed out that nothing seems to be as important to the American driver as that pastic card evidencing the right to drive upon the pubic highways. Defense attorneys wi readiy admit that their primary responsibiity, and the reason they are retained by their cients, is to make sure their cient keeps his or her icense. Pos conducted in Minnesota (Rodgers and Ceary 1983) and other States indicated that the oss of icense was the most feared penaty among drivers who had not been arrested for DWI. A probem of driving whie suspended does exist. However, additiona emphasis shoud be paced on resoving that probem, rather than abandoning or circumventing the most effective sanction known. A report on Ohio s DWI experience by Katz and Sweeney (1984) suggested that convicted drunk drivers who continue to drive after their icenses have been suspended constitute a significant threat to the safety of others and must be deat with more severey than in the past. These authors further suggested that the mandatory surrender of icense pates during suspension periods shoud be required if the offender is the hoder of pates and consideration shoud be given to requiring the surrender of icense pates if a vehice owner permits an unicensed driver to operate his vehice. Many judges have caimed that the use of hardship or occupationa icenses is necessary to avoid oss of empoyment by the offender. However, studies conducted in Deaware (Johnson 1986) and in Mississippi (Wes-Parker and Cosby 1987) indicated that very few offenders ost empoyment because of ost driving privieges. NHTSA Recommendations In 1987, NHTSA impemented a series of State workshops to review the status of the DWI probem and to expore ways to reduce it. A manua was deveoped to provide background in the various areas of DWI prevention and contro, In the adjudication section, recommendations were made regarding the prosecution, adjudication, and sanctioning of DWI offenders (Quinan 1987). Foowing is a summary of those recommendations, many of which deat with the probem of estabishing adequate training and communication programs. Prosecution 1. Estabish through the District Attorney s training office or the Attorney Genera s office, a DWI prosecution assistance center. 2. Deveop a State DWI tria manua, or adapt the NHTSA manua. 3. Deveop a DWI prosecutor seminar and sef-instruction program. 4. Conduct speciaized training for junior prosecutors. 5. Deveop case-tracking and prosecutor performance systems. 6. Piot test the eimination of pea bargaining in DWI cases. 7. Deveop a DWI section to a prosecutors newsetter. Adjudication 1. Through the State judicia education ofticer, deveop a DWI adjudication support program for judges. 2. Deveop a State DW bench book (or use the NHTSA bench book). 3. Deveop a DWI seminar and sef-instructiona training program.

15 JUDICIAL AND ADMINISTRATIVE PROCESSES Encourage judges to participate in speciaized training of DWI adjudication. 5. Deveop/impement a DWI case-tracking system at the owest court eve for use in that court and community. Integrate with a statewide tracking system. 6. Use a standardized psychometric test as the basis for drinker cassification and referra to treatment. Ensure that personne using the test are adequatey trained. Sanctions Enact and impement administrative per se egisation. Conduct a review of sanctions which can be appied to DWI offenders. Deveop a State sanctioning poicy and grid (or matrix) to aid the courts in deveoping packages of sanctions appropriate to DWI offenders. Impement jai/treatment combinations for mutipe offenders in conjunction with ong-term outpatient aftercare and support. Impement community service programs as an aternative to jai, when jai crowding is a probem or for certain popuations (e.g., youthfu offenders). Provide ong-term probation as a means of ensuring compiance with sanctions and participation in treatment programs or for certain popuations (e.g., youthfu offenders). 7. Eiminate diversion programs. Status of Recommendations by the Presidentia Commission on Drunk Driving In November 1983, the Presidentia Commission on Drunk Driving issued its fina report. This report contained a number of recommendations that have direct reevance to the prosecution, adjudication, and sanctioning of DWI/DUI offenders. Since the Commission spent considerabe time and effort deveoping its recommendations, it is appropriate to review them and the status of State programs that reate to them, before making additiona recommendations. The Commission made recommendations regarding driving whie under the infuence in 10 major areas: pubic awareness, pubic education, private sector, acohoic beverage reguation, systems support, enforcement, prosecution, adjudication, icensing administration, and education and treatment (Presidentia Commission 1983). Foowing are the recommendations most reevant to the purposes of this review. Incuded with the recommendations is avaiabe information on the status of egisation and/or programs reated to these recommendations. This information was not part of the Commission s recommendations. Much of it comes from NHTSA s Legisative Digest (Hatos 1988) and was current as of January Systems Support Program Financing Legisation shoud be enacted at State and oca eves that creates a dedicated jimding source incuding offender fines and fees for increased efforts in the

16 128 BACKGROUND PAPERS enforcement, adjudication, sanctioning, education, and treatment of DUI offenders. The NationaCommission Against Drunk Driving (NCADD) indicated that in 1988 approximatey 40 States had user funding for at east some of the components of their DUI contro system. New York provides the best examp1.e of such a system. The avaiabiity of adequate resources for the courts to process DWI cases is essentia for an effective deterrent effort. More cases and more severe penaties, combined with ess pea bargaining and fewer exceptions to sanctions, wi resut in significanty greater demands on the court. However, the courts can withstand these pressures if adequate resources are provided. Citizen and Pubic Support Grassroots citizen advocacy groups shoud be encouraged Co continue fosieting awareness of Ihe DU. probem, and to cooperrte with government oficius, prosecutors and judges to &a more with the acoho-reated crash probem. In 1988, these groups were active in neary every State, but a CathoicUniversity Study (McCarthy et a. 1987) suggested that the number of new chapters has been decining since These groups provided the impetus for the progress made in the 1980s. Without active citizen concern for this issue, it is unikey that further progress can be made. State and oca governments shoud create task forces of governmenta and nongovernmenta eaders o increase pubic awareness of the probem and shoud appy more efecivey DUI aws. By 1984, more than 40 States had such task forces. Very few were known to be in existence in This is unfortunate, since they provided the bueprints for State action in the beginning of the decade. Crimina Justice System Support Poice, prosecurors and courts shoudpubicy assign a high priority to enforcing DUI statutes. Most States increased their priority on DUI enforcement, prosecution, and adjudication in the 1980s. Since 1985, emphasis appears to have waned. Poice, prosecutors, judges, and other reated justice system personne shoud participate in entry eve and annua inservice trainingprograms estabished to improve the detection, prosecution, and adjudication of DUI offenders. An estimated 36 States had ongoing programs for prosecutors and judges in Sti, the majority of prosecutors and judges have apparenty never received training or attended seminars regarding the DWI issue. Prosecutors shoudprovide oca enforcement agencies and courts with periodic ega updares on deveopments andor changes in the DUI aws. No additiona information avaiabe The Chief Justice or highest appeate judge in each State shoud convene an annua meeting of an components of the rega system to review the progress and probems reating o DUI offenses. No additiona information avaiabe.

17 JUDCktL AND ADMINISTRATIVE PROCESSES 129 Tracking and Reporting Systems Poice prosecutors and courts shoud coect and report DUI apprehension, charging, and sentencing information to the State icensing authority. Convictions on miitary and Federa ands, incuding Indian triba ands, shoud aso be reported. The State icensing authority must maintain a traffic records system capabe of tracking offenders from arrest to conviction, in&ding sanctions imposed by judicia and icensing authorities. From the reports reviewed, it appears that most courts do not have automated systems. Ony a handfu of States have attempted to deveop a statewide data system and no known statewide tracking systems exist. Some community-eve tracking systems exist but are not integrated into State systems. This is an important deficiency that shoud receive additiona emphasis. Enforcement Chemica Testing Each State shoud estabish an impied consent statute which provides that a drivers icensed in the State are deemed to have given their consent to tests of bood, breath, or urine to determine their acoho or drug concentration. As of January 1988, a 50 States had impied consent aws in some form. In 31 States and the District of Coumbia, such aws appied to other drugs as we. If propery formuated, these aws provide an important incentive for drivers to provide acoho concentration information. Such information, in turn, pays a major roe in the abiity to successfuy prosecute and convict drinking drivers. One of the most important provisions of an impied consent aw is that the penaties for refusing must be greater than tzose for either a DWI or an iiegai per se conviction. In 1988, it was estimated that approximatey haf the,states had impied consent penaties that were more severe than penaties for a conviction of DUI or iega per se. Other important provisions of an impied consent aw are: (a) that a test refusa can be introduced at a DUI tria as evidence of consciousness of guit; (b) that offenders who are unconscious or othenvise incapabe of refusa are deemed to have given their consent to a test, the resuts of which are admissibe in any tria orproceeding (c) that an individua s right to consut his attorney may not be pennitted to unreasonaby deay administration of the test; (d) that resuts ofpreiminary breath test devices be admissibe in tte DUI tria proceedings, and (e) that refusas in sister States shah resut in icense suspensions in the State of aiiver residence. Prosecution Pea Bargaining Prosecutors and courts shoud not reduce DUI charges. AS of January 1988,13 States either prohibited or imited pea bargaining. Whie many prosecutors fee that pea bargaining is essentia, it undermines attempts to create genera deterrence. Proven sanctions such as icense suspensions often cannot be imposed if the offense is pea bargained. Definition of BAC States shoud enact a definition of breath acoho concentmton and make it

18 130 BACKGROUND PAPERS iega to dnve or be in contro of a motor vehice with a breath acoho concentration above that eve. Ai of January 1988, 14 States pus the District of Coumbia defined iega acoho concentrations in terms of breath acoho (BRAC) as we as bood acoho (BAC) concentrations. ega Per Se at 0.10 Acoho Concentration L.egi>Iation shoud be enacted making it iega per se for a person with an acoho concentration of 0.10 or higher within 3 hours of arrest to drive or be in actua physica contro of a motor vehice. As of January 1988,44 States pus Puerto Rico had iega per se aws. Appeate Action Prosecutors shoud initiate appropriate appeate actions to ensure judicia compiance with statutory mandates governing DUK cases... courts frequenty &ore mandatory sentencing requirements in DUI cases. UXess the prosecutor is wiing to seek an appeate remedy, the practice wi continue unchecked. Adjudication Mandatory Sentencing e sentences recommended upon conviction of driving under the infuence shoud be mandatory and not subject to suspension orprobation. Specificay, the recommendations are that: Ai States estabish substantia mandatory minimum fines for DUI offenders, with correspondingy higher mandatory fines for repeat offenders. As of January 1988,16 States had mandatory minimum fines for first offenders. Any person convicted of afirst vioation of driving under the infuence shoud receive a mandatory icense suspension for a period of not ess than 90 days, pus assignment of 100 hours of service or a minimum jai sentence of 48 consecutive hours. As of January 1988, 24 States had mandatory minimum icense suspension for first-time offenders; 7 States mandated jai or community service for first offenders, and an additiona 7 States mandated jai without any provisions for community service. Anyperson convicted of a second vioation of driving under tie inji uence within 5 years shoud receive a mandatory minimum jai sentence of 10 days and icense revocation for not ess than 1 year. As of January 1988,14 States mandated some period of jai or community service, and an additiona 28 States mandated jai without any provision for community service for second-time offenders; 43 States and the District of Coumbia mandated icense suspensions or revocations for second offenders. Any person convicted of a third or subsequent DUI vioation within 5 years shoud receive a mandatory minimum jai sentence of 120 days and icense revocation for not ess than 3 years. As of January 1988, 39 States mandated jai for a third offense. Neary a States mandated icense suspension for a third offense.

19 JUDICIAL AND ADMINISTRATIVE PROCESSES 131 Sentencing of Suspended Drivers Who Continue to Drive Staes shoud enact a statute requiring a man&tory sentence of a east 30 days for any person convicted of driving with a suspended or revoked icense or in vioation of a restriction due o a DUI conviction. Few States have effectivey impemented such sanctions, ath,ough some appear interested. Some States have aso been considering attacking the probem of driving whie suspended by confacating the icense pates or the vehices of such offenders. The icense pate confiication approach is intended to make driving whie suspended a more visibe offense. It has the added advantage of itte or no cost. Feony DUI Causing death or serious injury to others whie driving under the infuence shoud be cassified as a feony. In 1988, 44 States and the District of Coumbia had death-reated offenses, often caed vehicuar homicide. In 38 States and the District of Coumbia, this constituted a feony charge, and in 6 States it was a misdemeanor. Court Administration Spee& tria: DUI cases a the tria eveshoud be concuded within 60 days of arrest. Sentencing shoud be accompished within 30 days. The appeate process shoud be expedited and concuded within 90 days. From information reviewed, it appears that few courts have achieved this. Preconviction Diversion Preconvicion diversion to acoho education or acoho rreatmenr programs shoud be eiminated. AJindingon the charge shoud be rendered andparticipation in education or treatment programs shoud then become a condition of sentencing. Athough most States have eiminated statewide diversion programs, a few States and courts in severa States sti reguary divert offenders from sanctions into education or treatment. Often in such systems, no conviction and no record of an acoho-reated offense exists. Presentence Investigation Before sentencing, a court shoud obtain and consider upresentence investigation report detaiing the defendant s driving and crimina record and, where possibe, an acoho probem assessment report. In a cases, an acoho probem assessment report shoud be competed by quaifiedpersonneprior o rhe determination of an education or treatmentpan. NCADD estimated that 23 States compied as of Victim Programs Any person cdnvicted of driving under the infuence who causes persona injur>, orproperty damage shoud pay res&ution. As of 1988, NCADD estimated that 42 States compied. The U.S. Congresshoud enact egisarion that eiminates the possibiity rhat a dnrnk aver, judged civiy iabe, wi be abe to escape the penaties of civi action by fiing for bankmp~q.

20 132 No additiona information avaiabe. State and oca governments or courts by rue shoud require victim impact statements (incuding ora or written statements by victims or survivors) prior to sentencing in a cases where death or serious injury resuts from a DUI offense. Licensing Administration Administrative Per Se License Suspension States shoud enact egisation to require prompt suspension of the icense of drivers charged with DUI upon a finding that the driver had a BAC of 0.10 in a egay requested andpropery administered test. 77zeprompt suspension shoud aso extend to those who refuse the test (i.e., impied consent), as ~$1 as those who are tiving in vioation of a restricted icense. As of the end of 19&3,24 States pus the District of Coumbia had administrative per se aws, with many variations in the provisions of these aws. Restricted Licenses Each State driver s icensing authority shoud review irs practice of issuing occupationa hardship dn ver s icenses foowing suspension or revocah*on and estabist strict uniform standards reative to issuance and contro of such imited driving privieges. i%ese icenses shoud be issued ony in exceptiona cases. In no event shoud this be done for repeat offenders. In fact, most States with mandatory icense revocation, whether by the court or by the administrative process, make extensive use of restricted, occupationa, and probationary icenses. Ony about 21 States (i.e., those quaified for 408 incentive grant funds) have mandatory, minimum hard 1iCense periods during which restricted icenses are not to be issued. Provisiona License for Young Drivers States soud adopt aws providing a provisiona icense for young beginner drivers which woud be withdrawn for a DUI conviction or an impied consent refusa. Education and keatment Assignment Process Rekabiitation and education programs for individuas convicted of DUZ shoud beprovided as a suppement to othersanctions andnot as a repacement for those sanctions. Athough most States appear to have moved away from diversion programs, some sti make extensive use of them and aow sentencing to treatment programs in ieu of a conviction or a icense or jai sanction. Presentence investigations, incuding acojzo1 assessments conducted by quaified personne, stoud be avaiabe to a courts in order to appropriatey cassify the defendant s probem with acoho. Repeat offenders shoud be required to undergo medicascreeningfor acohoism by a physician trained in acohoism, an acohoism counseor, or by an approved treatment faciity, NCADD estimates that ony 23 States require a presentence of a postsentence investigation. Fewer specify the type of personne required to administer such tests.

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