To successfully sanction the offender and protect the public, judges must work through a myriad of complex challenges and utilize any and all available tools and policies to creatively and comprehensively sentence hardcore drunk drivers. What does “comprehensive sentencing” mean? Simply put, it involves building a roadmap to changed behavior for the offender. As such, a judge must approach sentencing with an eye to identifying the offender’s individual issues that may lead to recidivism and tailoring a sentence that will best prevent recidivism, using the tools allowed by law. Some of the most critical elements of this process are offender risk and needs assessments, comprehensive alcohol assessments, individualized sentencing and early interventions.

Judges must take care to ensure a legally sufficient sentence. Even when constrained by statutory minimum and maximum parameters, judges still have considerable latitude and discretion in fashioning sentences for DWI offenders. Such discretion is generally applied through the imposition of probation conditions and court-ordered activities. Judges should aim to accomplish as many recognized sentencing objectives as possible to achieve a legally sufficient sentence. These include punishment, incapacitation, deterrence, rehabilitation, restitution, protection of the public and education. Pre-sentence reports, statements from employers, family and friends, crash reports and violation records can all provide information to help judges impose meaningful and legal conditions of probation or conditional release.

Among the Foremost Challenges

Incomplete or Unavailable Records

Too often hardcore offenders are not identified, which creates a public safety issue. A lack of records makes it difficult for judges to identify and assess a hardcore drunk driver. Hardcore drunk drivers are frequently misidentified as first-time offenders and are either convicted of, or plead guilty to, reduced charges. When treated as first-time offenders, they don’t face the tough sanctions and treatment options available to hardcore offenders that are designed not only to punish but to produce changes in conduct.

A lack of complete records impedes a judge’s ability to determine an offender’s criminal history, assess a plea agreement and determine the appropriateness of sanctions and/or treatment. Without complete and accurate records, the judge cannot reference previous sanctions imposed on the offender or determine whether they were correctly imposed or the sentence was completed. This information also needs to be available at the time the court sets bail or bond for offenders. Failure to appear in court is a common problem associated with repeat DWI offenders.

Lack of System Coordination

Different components within the judicial system sometimes operate irrespective of the actions and capabilities of the others. This piecemeal approach results in ineffective handling of hardcore drunk driving cases, with treatment too often an afterthought, if it is considered at all. The hardcore drunk driver is in need of effective pre-sentence (ideally pretrial) screening, assessment and individualized sentencing, which should include alcohol treatment and rehabilitation, where appropriate. However, treatment resources are scarce, the system does not always mandate it, or the offender refuses to attend treatment programs. Their noncompliance often goes unnoticed by the courts.

Heavy Court Caseloads

The high volume and lack of resources in many courts risk the development of a “fast food” justice system where offenders are processed quickly and without regard for the individual rehabilitation and restriction needs that are absolutely critical to prevent recidivism among hardcore drunk drivers. Some 1.5 million DWI arrests are made each year, with most requiring some form of processing by a judge. Judges are often hamstrung by heavy caseloads that severely limit the amount of time available to discern case specifics and an offender’s behavior patterns. This can allow repeat DWI offenders to avoid identification and proper sanctioning; ineffective plea-bargaining and charge reductions often result. Heavy caseloads can also lead to prolonged adjudication, which in turn produces more dismissals and acquittals and prevents the swift, certain punishment that research shows hardcore drunk drivers need.

Lack of Financial Resources

Insufficient funding is a frequent problem, including lack of funding for special DWI courts,

DWI tracking systems, supervised probation and treatment programs. For example, while a judge can order intensive supervision probation for a hardcore offender, if caseloads for

probation officers are unmanageable, compliance monitoring will be lacking and it is unlikely the sentence will be meaningful. Further, many courts do not have access to probation for these types of cases.

Variations in Alcohol Assessments

The Substance Abuse and Mental Health Services Administration (SAMHSA) defines a substance abuse assessment as a process for defining the nature of a problem and developing specific treatment recommendations for addressing the problem.

Judges may observe a disparity of skill among evaluators and the absence of a model or uniform definition of what should be included in a court-ordered evaluation.

Additionally, more and more research shows psychiatric comorbidity in DWI populations and a probable link between mental health issues and recidivism. Yet screening for mental health issues beyond alcohol use disorders is rare in DWI treatment programs and DWI treatment providers rarely have the training or experience to identify mental health issues in their clients. In fact, research by Shaffer et al. shows that evaluators repeatedly underestimate their clients’ substance use problems.

Substance abuse assessments are the piece of information that should help the judge design individualized sanctions for hardcore drunk drivers. A thorough assessment and diagnosis leads to more effective penalties, better rehabilitation efforts and a greater chance at preventing recidivism.

Justice professionals provide more referrals for treatment than any other source; however, many who are referred to treatment do not receive it for a variety of reasons. It is important for criminal justice professionals to monitor referrals and maintain close communication with providers to ensure offenders receive appropriate treatment (Traffic Injury Research Foundation, 2008).

Defendants' Failure to Appear

Failure of defendants to appear at hearings is another serious problem in prosecuting hardcore drunk driving cases; yet typically, only nominal penalties apply. Failure to appear reduces the court’s ability to determine guilt and to devise appropriate sanctions for an offender who is found guilty. Offenders who live near state lines and commit crimes in a neighboring state may be tracked only if the two states have a linked, computerized system of warrants.

Defendants who fail to appear frequently are not caught and therefore not sanctioned. When a defendant fails to appear, an arrest warrant is often issued, but the defendant may cross state lines and may never be found. Prosecutors say hardcore drunk drivers are less likely

to appear in court because they typically know all of the legal loopholes and the low risk of apprehension (Robertson and Simpson, 2002).

Unrestricted Plea Agreements

In the judicial system, plea agreements are not uncommon and some argue they can be an appropriate means of resolving criminal cases. However, it is critical that judges give plea agreements a meaningful judicial review before approving them. Plea agreements between prosecutors and defense attorneys sometimes reduce DWI offenders’ sentences to those

of non-alcohol-related offenses, such as reckless driving. Such unlimited plea agreements undermine the penalties of the initial charge and any specific deterrent value the arrest might have had. Allowing defendants to plead to non-alcohol-related offenses exempts the defendants from participating in alcohol education, screening for alcohol dependence, and, if appropriate, referral for treatment. It also deprives law enforcement officials of a standard method of identifying recidivists. Reducing a DWI charge to a non-alcohol-related offense hinders swift identification by allowing the next DWI to erroneously be viewed as a first offense.

Judges must exercise judicial responsibility and oversight to ensure plea agreements are appropriate and should not hesitate to reject a plea agreement when necessary in order to preserve public safety.

Pretrial Diversion and Deferred Adjudication Programs

Recently, some courts have begun to use diversion as a way to sanction DWI offenders while easing an impossibly large court docket and avoiding costly incarcerations in tough economic times. It is important to remember that judges must give each case a meaningful review before approving a diversion agreement.

Hardcore drunk drivers pose an undeniable public safety risk. Diversion programs make it more difficult to identify hardcore drunk drivers. Most offenders seek diversion programs to avoid having a driving record or criminal history showing a DWI conviction. These types of programs allow certain DWI offenders to be diverted from criminal sanctions by entering alcohol education or treatment programs. Diversion programs can prevent or delay information about an offense from appearing on the offender’s driving record. Where records are not consistently kept, an offender may become eligible for a diversion program several times as a first-offender. In some states, diversion allows the offender to retain a valid driver’s license.

Sentencing Discretion

Many drunk driving laws allow judges considerable discretion in sentencing. Sometimes these laws are enforced effectively, but for a variety of reasons unique to each locality, many times they are not. When judges do not utilize the tools available to them that reduce recidivism, it can result in inconsistent sentencing and increased public danger.

Lack of Ability to Supervise Offenders

Extended and intensive probation can be one of a judge’s greatest tools in combating recidivism because it allows the judge to hold the offender accountable for completing the sentence imposed and ensuring responsible, law-abiding behavior. Unfortunately, in many cases, community supervision is underfunded and understaffed which allows offenders to slip through the system and go unnoticed.

Sentence Noncompliance

Hardcore drunk drivers often don’t comply with their sentences and many don’t suffer swift and certain consequences for their noncompliance. In fact, a 2003 Robertson and Simpson study found that nearly half of repeat drunk drivers are returned to court for failing to comply with the terms of their sentence. When sentences are ignored and there are no repercussions, conviction becomes meaningless — an idle threat. Driving on a suspended license is a particular concern because the driving public remains at risk. One of the primary reasons given for sentence noncompliance is a scarcity of monitoring and follow-up after sentencing. Technology can greatly enhance supervision and compliance efforts.

Judges should monitor hardcore drunk drivers (judicial monitoring, probation, or both) to ensure compliance. A good example of judicial monitoring can be found in the staggered sentencing program from Isanti County, Minnesota. The imposition of realistic and research driven conditions are key to successful management of hardcore drunk drivers.

Sensitizing All Judges on the Impact of Hardcore Drunk Driving

Hardcore drunk driving is sometimes lower on the judicial agenda below other social problems and safety challenges. Homicides, assaults and other types of violent crime, as well as additional acute social issues, occupy a much larger place in the media. Over the years there has been a substantial decline in impaired driving deaths. Political leaders and members of the media may be inclined to think drunk driving isn’t as much of a problem as it was in years past. However, hardcore drunk driving has not declined over the years. More than two-thirds of alcohol-impaired traffic fatalities are caused by drivers at high BAC levels of .15 and above, while one-third are caused by repeat offenders. Repeated attempts to address the hardcore drunk driver have been minimally successful. Comprehensive, individualized approaches are needed to effectively reach this population.

The Critical Need for Judicial Education

Judges acknowledge they need more training to handle the technical and scientific evidence involved in hardcore drunk driving cases and to deal with all of the obstacles highlighted in this publication.

NHTSA has funded judicial outreach liaisons and impaired driving judicial education efforts and the federal government has authorized funding for state judicial education efforts. But hardcore drunk driving still needs an enhanced education focus. The complexities of cases involving hardcore drunk driving pose distinct judicial challenges that sentencing seminars, workshops, and conferences focusing on the hardcore drunk driver would help address.

Judges should be trained to deal with the special issues presented by impaired driving, beginning with recognizing the signs of a hardcore drunk driver. These signs include drivers who repeatedly refuse to take blood-alcohol tests or standardized field sobriety tests; drivers whose blood alcohol levels are substantially higher than the limits allowed by law; and underage and adult drivers with multiple DWI convictions.

Cases involving hardcore drunk drivers are typically litigated with intensity and require the judge to be prepared to resolve vigorously contested factual and technical disputes. Judges note the value of learning how to handle such cases through peer-to-peer education taught by experienced judges. By using a coordinated system of sanctions and programs, judges can better build the roadmap that leads the hardcore drunk driver to changed behavior so he or she no longer presents a menace to the driving public.

Other Challenges Causing Judicial Frustration

Evidentiary Deficiencies

A number of evidentiary deficiencies can lead to cases being dismissed or resulting in reduced charges. These shortcomings include lack of convincing or sufficient evidence, including BAC test refusal, incomplete or erroneous paperwork, ineffective officer testimony and inexperienced prosecutors.

Blood Alcohol Concentration (BAC) Test Refusals

Test refusal (breath, blood, urine) is often the first step a hardcore drunk driver takes in avoiding prosecution and sentencing. Many DWI suspects refuse to cooperate with the police in any way by refusing to answer questions, take the field sobriety test, or take a breath test. But test refusals are most common with hardcore drunk drivers, primarily because they know they’ll test high; they are familiar with the loopholes in DWI laws; and in most jurisdictions, sanctions for refusing to cooperate with police are much less severe than sanctions for a

DWI conviction, especially repeat offender sanctions. When drivers refuse, police officers are hindered in gathering the evidence needed to support a DWI charge. As a result, in many states, drivers who are drunk and refuse testing avoid a criminal conviction and may not be identified as repeat offenders the next time they are stopped. Test refusal is one way hardcore drunk drivers continue to evade prosecution and sentencing.

In a 2002 study on DWI prosecutions, three-fourths of the prosecutors interviewed said the BAC test was the single most critical piece of evidence needed for a conviction, evidence they are frequently without (Simpson and Robertson 2006). Some states report refusal rates of

up to 50 percent for drivers with a prior DWI (Jones and Lacey, 2000). Even without the test results, DWI charges may still be brought against the offender, but conviction depends entirely on the law enforcement officer’s observations and subsequent testimony.

The National Committee on Uniform Traffic Laws and Ordinances (NCUTLO) recommends in its DWI model law that the penalty for test refusal should be double the penalty for

test failure. It also recommends that a driver’s refusal to take a BAC test be admissible in court. Forty-one states and the District of Columbia have administrative license revocation laws for DWI test refusal or failure (NHTSA 2010). In most states, the penalties involve administrative license suspensions of 90 to 180 days. This is much less severe than the criminal penalties for failing a chemical test for DWI, and many continue to drive without a license. Currently 15 states have established criminal penalties for BAC test refusal (Alaska, California, Florida, Kansas, Maryland, Minnesota, Mississippi, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Rhode Island, and Vermont).

Ineffective Officer Testimony

Witness testimony is a vital part of the evidence in a jury trial. Police officers need to be able to properly articulate their cases. Omissions or insufficiently detailed testimony can lead to the dismissal of a case or acquittal of the defendant. This is especially important since repeat offenders are more likely to opt to go to trial. In a number of states, officers rarely testify on DWI cases because of the high number of cases that result in plea bargains and enrollment in diversion programs. In addition, electronic arrest reports do not allow for officers to record notes on specific arrests. As a consequence, when officers testify they are poorly prepared

to provide compelling testimony, even on cases where the evidence would appear to be overwhelming.

In a 2001 study by Simpson and Robertson, police officers said their credibility as witnesses was undermined by a lack of opportunity to prepare for cases, a lack of experience testifying in general and the difficulty of providing the court with the desired level of specificity upon cross-examination.

Prosecutors Unprepared to Try DWI Cases

Often prosecutors also feel unprepared for DWI cases. Another study by Robertson and Simpson (2002) found that 48 percent of prosecutors surveyed reported they were not provided with adequate training or preparation before handling DWI cases in their jobs as prosecutors, and over one-third (34 percent) of judges believe prosecutors do not have the same knowledge or expertise about DWI as defense attorneys. Coupled with inexperience and high turnover, prosecutors also face the additional burden of inadequate staff and resources for the number of DWI cases they are charged with handling.

Technically, drunk driving cases are extremely challenging to try. One needs only to examine Standardized Field Sobriety Tests (SFST), typical toxicology reports or experts’ crash reconstruction data to appreciate the complexity of DWI litigation. Cases involving DWI are also legally challenging given states’ conflicting statutes and varying constitutional standards. Moreover, the criminal defense bar has meticulously crafted a highly specialized DWI practice, complete with technical, legal and scientific defenses.