Appendix D

In addition to criminal charges, DWI offenders often face parallel prosecution in administrative proceedings which usually involve the license and sometimes the vehicle. Criminal procedures generally involve the driver.

Compared to judicial proceedings, administrative license suspensions are seen as a faster and more certain way to remove a dangerous driver from the roadways. Depending on state laws, there are a number of sanctions administrative law judges impose on DWI offenders, including:

  • Revoke or suspend driver’s licenses;
  • Suspend or seize vehicle tags or
  • registration; Order ignition interlocks;
  • Order vehicle impoundment or forfeiture; or
  • Fines.

These administrative procedures do not take the place of criminal proceedings against drunk drivers. Every state has laws authorizing — and in some cases mandating — incarceration, and all DWI cases covered by these laws are handled through the judicial system. Offenders who are subject to administrative sanctions usually remain subject to a separate criminal process, which could lead to additional penalties and sanctions. The two tracks — administrative and criminal — must both be effective for an offender to be appropriately sanctioned and treated.

Administrative license revocation or suspension (ALR or ALS) is recognized as having a strong, general deterrent effect on drunk drivers because the mandatory punishment is swift and sure, and it is by far the most frequently imposed administrative sanction on DWI offenders. There are no lengthy trial delays or plea bargains; drivers who fail or refuse to take a sobriety test lose their license on the spot. NHTSA recommends ALR laws impose at least a 90-day suspension or a 30-day suspension followed by 60 days of restricted driving.

Currently, 41 states, the District of Columbia and one territory have laws that allow states to administratively revoke the offender’s driving privileges without waiting for a conviction on a DWI charge. An unfortunate side effect of the widespread use of ALR is an increase in the number of offenders driving while suspended (DWS). Only a small proportion of DWI offenders reinstate their licenses when eligible because the process is time-consuming and costly in terms of fees and other requirements. Notification of the driver’s insurance company of his or her suspension, attendance at education or treatment programs, or use of an alcohol interlock are often required by states before a license is reissued. Researchers also attribute the low incidence of re-licensure to a perception on the offender’s part that the risk of apprehension for driving while suspended is not great enough to justify the hassle of reinstatement (Voas, 2001).

In addition to ALR, many jurisdictions also use other administrative actions aimed at drunk drivers. For example, the arresting police officer can suspend and seize vehicle tags or registration of repeat DWI offenders. In some states, such as Maryland, California and
West Virginia, alcohol safety interlock programs are managed administratively by the motor vehicle department. Several vehicle impoundment and forfeiture programs also are handled administratively.

In Minnesota, people arrested for drunk driving who have a previous offense within 10 years or who have a BAC of .20 or higher will have their license plates impounded and destroyed by a police officer acting as an agent of the Department of Public Safety. A study found Minnesota’s license plate impoundment law to be quite effective. Violators who received a police-issued impoundment order had one-half the recidivism rate as compared to similar offenders who did not receive this order (Rodgers, 1994).

Challenges to administrative proceedings

Administrative law judges say the challenges they face generally run parallel to those faced in criminal court, with two notable exceptions, both of which can have a direct, negative impact on the outcome of the criminal case:

Aggressive defense tactics

Defense lawyers often use the administrative hearing to cross-examine state witnesses (primarily the arresting or testing officers), getting them to commit to versions of the circumstances of arrest. The defense then uses this testimony against the officer during the DWI trial, which might take place several months after the administrative hearing. Variances, discrepancies and inconsistencies are used by the defense lawyer to impeach the officer at the DWI trial.

Former Judicial Education Advisory Panel member Christopher McNeil said “Given that the stakes are much, much higher at the DWI trial than they are at the administrative
hearing, it certainly makes good sense for the defense to take this approach, but it can lead to unwarranted outcomes in otherwise strong DWI cases.”

The role of the administrative law judge is to control and direct the hearing, according to state law. When the judge doesn’t control the proceedings, it can lead to the second problem of non-showing witnesses.

Witnesses who do not appear

Law enforcement officers frequently do not appear, according to McNeil, who has studied and written extensively on the role of administrative court judges and the problems they face. “If the officer doesn’t appear, the administrative law judge has to dismiss the charges. It’s not uncommon, and there is no contempt action that an administrative law judge can impose. The only way you can enforce the subpoena is through a court of general jurisdiction.”

Law enforcement officers don’t show, McNeil said, because there is no prosecutor at the administrative proceeding, which leaves the witness exposed to the defense lawyer. The witnesses look to the administrative law judge to reign in the defense lawyer, and if the judge doesn’t, the officer’s testimony is damaged. “In part,” McNeil said, “the law enforcement officers are offended by the defense tactics and the lack of the administrative law judge’s response, and they feel they are protecting the DWI proceeding. They don’t want to say or do anything that would jeopardize that outcome.”

A recent study of Utah’s law allowing telephonic testimony of ALR hearings noted other reasons officers don’t appear, including conflicting training and work schedules. The report also noted that some command officers don’t encourage the arresting officers to attend ALR hearings because it removes the officers from service, and their departments must pay most of the costs for the officers’ time (Wiliszowski, Jones, and Lacey 2003).

If a defendant fails to appear at an administrative hearing, McNeil said a judge can render a default order and impose the same sanction as could be imposed if the person appeared and wasn’t the prevailing party. This is particularly important for identifying hardcore drunk drivers because the administrative law judge can impose a full sanction (typically a 90–day suspension for a first-offense DWI or refusal) even against the absent respondent; and that suspension can then be regarded as a prior administrative suspension when the recidivist returns to his or her bad behavior on the road. As a result, when presented before
an administrative adjudicator, the hardcore drunk driver faces the enhancements that go with second or subsequent offenders.

Solutions

While the majority of challenges faced by administrative court judges mirror those of the judicial branch, solutions available to administrative judges are severely restricted by the limited number of sanctions they can impose. To address the challenges particular to administrative DWI judges, McNeil suggests:

  • Strengthened education for administrative law judges. The administrative law judge’s role is to preserve due process rights, but sometimes administrative law judges are too lenient because they bend over backwards to make sure a defendant’s rights are protected. Individual training in advanced evidence and trial procedure reduces this risk.
  • Networking among administrative law judges, where peer-to-peer support exposes them to current trends in litigation tactics (both by the state and by the defense) that might have an impact on the process.
  • Training opportunities with judicial branch judges — many administrative law judges are overly-permissive out of a fear of reversal in the judicial review process, a fear that diminishes with exposure to the “real world” of DWI prosecutions.
  • Greater public awareness of the proper role of the judge in administrative DWI hearings.
  • Clearly stated statutes that set forth exactly what is and isn’t admissible in the administrative proceeding.
  • Law enforcement training.

The 2003 Utah study by Wiliszowski, et al. found that allowing police officers to testify by telephone at DWI administrative hearings contributed to a 20 percent reduction in the return of driver licenses to defendants due to the absence of the arresting law enforcement officer. The authors recommended increased usage of telephonic testimony, but noted that training is important because almost half of the law enforcement officers who responded to their survey said they didn’t feel adequately trained in the standard ALR hearing procedures, much less telephonic hearings.