Recognize a High BAC Level as an Indicator of a Hardcore Drunk Driver and a Public Safety Risk

Forty-two (42) states, the District of Columbia and American Samoa have graduated penalty systems based on BAC at the time of arrest. The severity of the penalty increases with BAC level, and sanctions are the most severe for multiple offenders. The system recognizes that drivers with high BAC levels — defined as .15 percent and above — warrant stiffer sanctions because they are more dangerous on the highway and may also be more likely to repeat the behavior. Such a tiered system recognizes the increased problems caused by offenders driving with a high BAC and allows for more severe sanctions and more intensive treatment to be applied to high BAC drivers and repeat offenses.

The National Transportation Safety Board (NTSB) recommends that a model program to reduce hardcore drunk driving should incorporate legislation that defines a high BAC (.15 percent or greater) as an “aggravated” DWI offense that requires strong intervention similar to that ordinarily prescribed for repeat DWI offenders (NTSB, 2000). By calling attention to the seriousness of the crime, a higher-level charge acts as a deterrent for the general population. The primary objective of strong sanctions for high BAC offenders is to reduce recidivism by increasing the certainty and severity of punishment and by reducing loopholes in the system (McCartt and Shabanova, 2002).

States’ high BAC systems vary greatly, with enhanced sanctions including:

  • Longer or more intensive alcohol education or treatment;
  • Limitations on plea reductions, deferred judgments or diversion programs;
  • Driver-based punitive sanctions such as longer license suspensions;
  • Vehicle-based punitive sanctions such as mandatory ignition interlocks; and
  • Courts’ consideration of a high BAC in sentencing as an aggravating or special factor (McCartt, 2001; Combating Hardcore Drunk Driving, 2003).

Consider BAC Test Refusal to be a Potential Indicator of a Hardcore Drunk Driver

As discussed in the challenges section, offenders who refuse to take a BAC test are depriving the court of the most important evidence needed to assess the validity and severity of the DWI charge. This is especially true for hardcore drunk drivers who are familiar with the legal system’s loopholes and who may be trying to escape enhanced penalties associated with high BAC and repeat offender convictions. An offender who refuses the BAC test should be thoroughly evaluated and criminal history should be examined carefully.

Other potential indicators of a Hardcore Drunk Driver:

  • Prior convictions for
    • Fleeing the scene of a crash (hit and run)
    • Reckless driving
    • Open container while driving

Pretrial Release Conditions

Accused hardcore drunk driving defendants often re-offend between the time of arrest and the date of trial or resolution of that offense. This can create a significant public safety issue. Judges have many alternatives available to deal with the public safety issues caused by an accused hardcore drunk driving defendant during this stage of the court process that do not involve incarceration.  Some of these alternatives include making use of technology such as ignition interlock devices, continuous alcohol monitoring devices, other forms of alcohol and drug monitoring, and global positioning devices (GPD) as a condition of release. Others may include the use of counseling programs, license restrictions and daily reporting centers as a condition of release. One promising practice that has been identified is to use pretrial intensive supervision programs run by probation to get repeat DWI offenders into monitoring and treatment programs such as the Wisconsin Intensive Supervision Probation program. Any pretrial release conditions imposed by the court should be related to public safety and/or the likelihood of appearance at future court dates.