Monitor Plea Agreements and Sentencing

In order to deter offenders, apply appropriate sanctions and accurately identify hardcore drunk drivers. Placing limits on plea agreements can lead to more accurate identification of repeat DWI offenders and more appropriate sanctions being imposed. A meta-analysis of 52 studies on plea agreement restrictions combined with other policies found an 11 percent reduction in crashes and injuries, suggesting plea agreement restrictions are a vital part of an effective strategy for reducing drunk driving (Wagenaar et al., 2000).

According to a 2002 survey by the Traffic Injury Research Foundation, prosecutors support the idea of restricted plea agreements, such as removing the opportunity to plead down to  a non-alcohol offense and discontinuing plea agreements in high BAC cases. Prosecutors also support stating the reasons for a plea agreement on the record (Robertson and Simpson, 2002).

New York is an example of a state that has enacted legislation to prohibit drunk driving offenses from being reduced to a non-alcohol related offense. A drunk driver whose plea agreement lessens the DWI charge is still identified as an alcohol-related offender. New Mexico also prohibits DWI offenses from being reduced to a non-alcohol related offense.

When presented with a plea agreement, a judge has the responsibility to ensure the appropriateness of the plea. Plea agreements should involve evidence-based practices and maintain the alcohol-related charges. A judge should not hesitate to reject plea agreements if they are inappropriate. A meaningful judicial review of the plea agreement is essential to reducing hardcore drunk driving.

Utilize Offender Evaluations for Hardcore Drunk Drivers

These evaluations (screening, substance abuse assessment, and criminal record check) should be delivered in a timely manner (ideally pretrial but absolutely prior to sentencing) to help ensure and expedite proper sentencing. Evaluations are particularly critical in dealing with hardcore drunk drivers because they provide information about their criminal record, propensity to re-offend, and about their drinking and driving habits. Whenever possible the evaluations should also screen for co-occurring mental health and drug issues (see CARS program in emerging practices section).

A major purpose of offender evaluation is to reduce recidivism by determining a defendant’s criminal risk and the nature of his/her alcohol involvement so appropriate treatment options can be identified and assigned. The National Institute on Drug Abuse and the Institute of Behavioral Research at Texas Christian University provide several good examples of substance abuse assessments. Additionally, a confidential and simple alcohol screening is available through the Partnership for a Drug-Free America at http://www.alcoholscreening.org/Home.aspx

Conduct Pre-Sentence Evaluations

These evaluations review the defendant’s record, the previous sanctions imposed, including all diversions, and the defendant’s compliance history. This information enables the judge to choose sanctions that effectively reduce recidivism and protect the public while also imposing rehabilitation requirements to treat the defendant for alcohol problems.

Restrict Diversion Programs

A 2002 AAA Foundation for Traffic Safety study recommends the elimination of diversion programs that allow offenders to escape license suspension and remove the DWI offense from the offenders’ driving records. The NTSB and others have recommended the elimination of diversion programs. As mentioned earlier in this resource, diversion is being increasingly used as a means of easing impossibly large court dockets and achieving case resolution. While some diversion programs include innovative attempts to achieve offender rehabilitation, they also include expungement of the offender’s record. One criticism of diversion programs is the potential for a repeat DWI offender to be classified as a first offender multiple times. Such abuse of diversion programs undermines the deterrent effect of sentencing, poses a public safety risk and erodes the public trust in the criminal justice system.

As a best practice, judges should avoid diversion programs for hardcore drunk drivers except in rare circumstances that clearly merit the use of them. It is a judge’s responsibility to prevent the abuse of diversion programs that result in expungement. In the event that diversion is used, it should be very narrowly tailored to only very exceptional cases that are clearly transparent and justifiable to the public.

At a minimum, judges must ensure a diversion agreement does not allow the defendant to escape the penalties and assessments associated with a DWI conviction and, if possible, retain the DWI charge on the record to ensure any repeat DWI offenses are not presented as first offenses.

Ensure Defendants' Court Appearances (Reduce FTA)

Failure of defendants to appear at hearings is another serious problem in prosecuting hardcore drunk driving cases. Yet typically, if a penalty applies at all, it is nominal. Defendants who fail to appear frequently are not tried and convicted and therefore are 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.

Judges can utilize case management procedures to reduce this problem such as timely processing of cases, email/telephonic reminders for defendants, restrict stipulated contingencies, issuing warrants, requiring cell phones and conducting GPS monitoring.

Additionally, judges should consider swift and certain penalties for failure to appear such as bond forfeiture or increase, GPS requirements, contempt proceedings and jail time.