Two efforts are under way — one would stiffen penalties for drunk driving, and the other would make it easier to impound the vehicles of chronic drunken drivers. You've heard the phrase "Good cases make bad law," and I wonder if that isn't about to happen now with this compelling argument for much stiffer drunk driving sentences.
These efforts also come in the wake of published reports that Wisconsin has the highest rate of people who admit to driving under the influence in the U.S. (This interactive map shows Wisconsin in comparison with other states.) "Driving under the influence" is not necessarily the same thing as drunk driving, of course; otherwise, more than 26 percent of Wisconsin adults would already have drunk driving convictions on our driving records. Those who believe drunk driving is the number one scourge of society tend to forget that distinction.
There is a difference between criminal penalties that actually work and penalties that are enacted by politicians looking for votes. An example of the latter was the reduction of the legal definition of drunk driving from 0.10 to 0.08, which the National Motorists Association calls "the DWI equivalent of the 55 mph speed limit."
I make that claim based on my experience in covering courts and police for a county-seat weekly newspaper, where one of my weekly duties was going to the courthouse and collecting information for news items on, among other things, drunk driving convictions. I would say that the average BAL of a convicted drunk driver was between 0.15 and 0.20, up to twice the legal intoxication level, and I doubt that’s changed very much. Given that police aren’t allowed to stop people without probable cause, and given that Wisconsin doesn’t have sobriety checkpoints, the conclusion one draws is that some people are able to drive at a legally intoxicated level without appearing to be driving drunk (as in driving too fast or too slow for conditions, inability to stay in your lane, etc.). That is also why reasonable-sounding proposals to reduce allowable BAL for those who have already been convicted of drunk driving won’t work (unless one plans to suggest random BAL checks for convicted drunk drivers, which would seem to constitute unconstitutional and unreasonable search and seizure).
Under section 346.63 of the Wisconsin statutes, first- or second-offense drunk driving charges in Wisconsin are civil offenses if no one was hurt, with mandatory jail time on the second through fourth offenses, and felonies if someone was hurt or killed, or for fifth and later offenses. Winnebago County has a special provision where second- and third-offense drunk drivers can have their sentences reduced upon completion of “a period of probation that includes alcohol and other drug treatment.” Fines are multiplied for blood alcohol levels beyond twice the 0.08 limit, and for BALs above 0.20 and 0.25. And none of this, of course, includes what happens to the auto insurance of the convicted intoxicated driver.
It is interesting to note in this case that the defendant in this case is not accused of drunk driving; he was allegedly driving after having taken “five pills of the anti-anxiety medication Xanax, five Ambien pills (a sleep aid), and one oxycodone pill (a painkiller)” earlier that day. Obviously the lower BAL law didn’t affect him at all, and one wonders if, had he not allegedly rear-ended the car where the people died, police would have noticed his impaired driving either.
Only five other states treat first-offense drunk driving as a traffic ticket; most assess drunk driving charges as misdemeanors for the first couple or few charges, and felonies after that. The significant drunk driving problem, however, is repeat offenders, of whom the defendant is one. Gov. James Doyle, a former district attorney and attorney general, is right when he says that “The only way to protect the public from multiple offenders is to keep them off the streets.”
Four state legislators, including Rep. Bob Ziegelbauer (D–Manitowoc), are introducing a bill to revoke driving privileges, confiscate vehicles, and impose jail time on third-offense drunk drivers. “Immediate, permanent confiscation of the vehicle, any vehicle driven after a revocation by multiple DUI offenders will be the kind of game changer we need,” Ziegelbauer told the Journal Sentinel.
The crimes Operating After Revocation and Operating After Suspension and an entire chapter of statutes (Chapter 351, for the curious) on Habitual Traffic Offenders already imply that many people don’t let losing their driver’s license stop them from driving. Judges already have the option to impound vehicles for third and subsequent offenses. But to take away the violator’s vehicles, either through impoundment or even confiscation, would prevent such violators only from driving that vehicle. It certainly wouldn’t prevent them from driving, and, as Waukesha County District Attorney Brad Schimel told the Milwaukee Journal Sentinel, impounding vehicles creates other problems:
Generally, the vehicles have very little value; they are expensive to seize since there is a civil process that must be abided by; the justice system would have to pay any lien on the vehicle and when it has been done, the offender just gets another car, he said.Schimel told the Journal Sentinel he believes “the focus should be on prevention and treatment,” as shown in Winnebago County and in Waukesha County, which has an alcohol treatment court with similar provisions as Winnebago County. The problem is that alcohol assessments are already required for all drunk driving convictions, and that evidently doesn’t work in many cases, such as the two people sentenced to three and 1½ years respectively for their 10th drunk driving convictions.
Other states require ignition interlocks for the vehicles of chronic drunk drivers, or special license plates or license plate stickers. Such measures are worth considering, but only if they're proven to work; in the latter case, some states that created drunk-driver license plates shelved those programs after they were not proven to work.
At some point during this debate, I suspect the subject of sobriety checkpoints, which are used in some states, will come up. Sobriety checkpoints, besides being a blatant violation of the rights of the non-drunk driver and a way to prevent police from being able to respond to actual crimes, are an excellent way to make sure that people who suspect they might be intoxicated will work to avoid the checkpoints; do you really want to encourage intoxicated drivers to run through back streets and side roads to avoid the cops? (Mothers Against Drunk Driving favors “highly publicized” sobriety checkpoints, which would seem to defeat their purpose.
If taking away the chronic intoxicated driver’s vehicles won’t work, and other proposed measures are either ineffective or unconstitutional or both, what’s left? Prison, and that’s where legislators’ efforts should focus. Taking away the vehicle of the drunk driver won’t work nearly as well as taking away the freedom of the drunk driver, by sending that criminal to prison for a long time. Jail time beyond what someone might endure to get bailed out after an arrest, of a length sufficient to get the message across (say, 48 hours), is an appropriate response for first-offense drunk driving. Those who get more than two drunk driving arrests clearly don't care about the danger they represent to the driving public, and should be sentenced correspondingly.
There is a danger, however, that oversentencing creates another unintended consequence -- encouraging such additional crimes as hit-and-run and evading police. It is for the same reason that proposals to extend the death penalty to non-murders may not be a good idea -- if, say, kidnapping becomes a capital crime, does not that encourage the criminal to kill the victim so that the victim can't testify? In the same way, if, say, a year in prison awaits someone already nailed twice for drunk driving who now is floating down the road with an 0.20 BAL, that would seem to be powerful incentive for that person to do what it takes to avoid being arrested.
As someone who once was the victim in a drunk driving crash, I do not want drunk drivers on the road any more than anyone else does. No one, however, should favor either unconstitutional measures, or ineffective measures, to get drunk drivers off the road.