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Ii. Sentencing

The Objectives of Sentencing

Sanctions imposed on DWI offenders may have several objectives. These include retribution, incapacitation, specific deterrence, general deterrence, and rehabilitation. In addition, restitution and DWI program financing may be objectives in sentencing decisions.

  • Retribution seeks to punish the offender because it is merited, primarily by confinement and fines. Court-mandated alcoholism treatment, aimed primarily at rehabilitation, may be perceived by the offender as punishment.
  • Incapacitation refers to denying the offender the chance to repeat the offense. For impaired drivers, this may occur through sentencing to confinement in a jail or dedicated detention facility, through home detention and electronic monitoring, by license action, by immobilization or confiscation of the offender’s vehicle, or by installing alcohol ignition interlock devices on the offender’s vehicles.
  • Specific deterrence is designed to keep the offender from repeating the offense through the experience of punishment and the fear of subsequent sanctions (Jones and Lacey, 2000). Whether offenders actually reduce drinking and driving behavior in response to various sanctions has been the subject of extensive debate and research (for reviews, see Voas, 1986; Nichols and Ross, 1989; Jones and Lacey, 1991; Ross, 1984, 1992; Wilson and Mann, 1990).
  • General deterrence is designed to change the behavior of the general driving public (as opposed to arrested DWI offenders). This strategy, through widespread community awareness that stiff penalties will be imposed for DWI, should result in reduced drinking and driving to avoid the possibility of punishment. The perceived risk of detection, apprehension, and adjudication leading to swift punishment for DWI must be high for this strategy to work (Ross, 1984).
  • Rehabilitation refers to offender reform through sentences that include DWI education and/or alcoholism treatment. The DWI offender’s rate of compliance with mandated treatment may depend on the offender’s perception of the courts willingness to impose sanctions for failure to comply (Wells-Parker, 1994).
  • Restitution means paying for the damage caused by the DWI act, including property damage and injury costs to victims associated with crashes.
  • DWI Program Financing refers to offenders paying for the programs administered to them, be they treatment, alcohol ignition interlock monitoring and maintenance, license suspension reinstatement, vehicle impoundment storage costs, etc.

Considerations in Sentencing

When sentencing, the following considerations apply:

  • Sanctions or remedies should be applied to all offenders, and treatment with accountability should be applied when indicated, based on the results of a professional evaluation. As one judge on the expert panel noted, “Every DWI should be evaluated for alcohol problems and go to education or treatment in conjunction with other programs administered.”
  • Treatment alone never substitutes for sanctions or remedies, and sanctions and remedies do not substitute for treatment (Wells-Parker et al., 1995).
  • No one sanctioning and treatment strategy is effective for all drinking drivers (Mayhew and Simpson, 1991).
  • There must be a balance between the need for overall consistency in sentencing and the need to tailor the sentence to the individual offender (Donovan and Marlatt, 1982; Perrine et al., 1988; Wells-Parker et al., 1990; Jones and Lacey, 1998).
  • Sentences should be tailored to individual offenders based on an evaluation of offender characteristics and recidivism risk (Jones and Lacey, 2000).

Factors Influencing Risk for Recidivism

Elements of an offender’s prior history that may influence recidivism risk include the following (Popkin
et al., 1988):

  • History of alcohol and other drug use
  • Level of social and family functioning
  • History of previous evaluations and treatment
  • History of arrests and legal interventions associated with alcohol and other drug use
  • Ability to become qualified for, obtain, and perform employment
  • Ability to function in an educational setting

More recent evidence indicates that the number of breath test results that exceeded the pre-set threshold using alcohol ignition interlock devices (Marques, Voas, and Tippetts, 2003) may be the best predictor yet of DWI recidivism. There is emerging evidence that any first alcohol-impaired driving incident is a significant predictor of future recidivism (Rauch et al., 2002a).

Evaluating the Offender

An evaluation is a formal assessment to identify the extent of a person’s alcohol problem, state of mental health, and social adjustment. This assessment helps to determine which sanctions are most likely to reduce recidivism for the individual offender and when to order alcoholism treatment.

Who should be evaluated?

All DWI offenders should be screened by qualified professional evaluators to assess the extent of their alcohol problem. Ideally, these offenders should pay for the evaluations.

When should an evaluation be ordered?

An evaluation should be ordered prior to sentencing (Nichols and Quinlan, 1989). In jurisdictions with high caseloads, this might not be possible. In such cases, evaluation (and any recommended treatment) can be made a condition of probation.

Who is qualified to perform an evaluation?

An evaluation should be conducted by personnel certified in alcoholism screening or with extensive clinical training and experience. Because an evaluation is a first step in intervention, evaluators should have some counseling skills (Popkin et al., 1988).

What are the minimum components of an evaluation?

An evaluation should have at least two components (Lapham et al., 1995):

  1. Assessment of alcohol and other drug use (i.e., frequency and quantity of use, consequences of alcohol and other drug use, and evidence of loss of control over use).
  2. Assessment of DWI recidivism risk based on factors in addition to drinking behavior.

The evaluation usually consists of:

  • The administration of standardized assessment test(s) and
  • A personal interview by a trained evaluator.

The information obtained should be supplemented with information from:

  • The courts (or other appropriate sources) regarding the client’s criminal and driving history and
  • Family members, regarding the offender’s alcohol and other drug use.

Various standardized alcohol-screening tests are available, including several designed for DWI offenders. (For descriptions of several tests, see Popkin et al., 1988; Beirness, D.R., and Simpson, 1991; Lacey, Jones, and Wiliszowski, 1999; Chang, Gregory, and Lapham, 2002). There are also a number of well-researched and validated standardized tests designed specifically for youth that may be more age-appropriate for DWI offenders under age 21. A proliferation of standardized instruments have been developed during the past decade; while NHTSA does not specifically endorse a particular instrument in this guide, two alcohol screening instruments for youth are the Adolescent Drinking Index (ADI) and the Rutgers Alcohol Problem Index (RAPI). Among several other validated screening instruments that encompass all drugs, including alcohol, are the Personal Experience Screening Questionnaire (PESQ) and the Drug Abuse Screening Test-Adolescents (DAST-A). These and other instruments are described, discussed, and summarized in Winters (2003).

What should be considered before ordering an evaluation?

When the court has the option of choosing an evaluating agency, the following characteristics should be
considered:

  • Qualifications of staff (as described above)
  • Ability to track clients and monitor compliance with treatment recommendations
  • Willingness to work as a team in coordinating efforts with the court and the State, taking into consideration the specific facts of the case
  • Avoidance of conflicts of interest (ideally, the agency doing the screening should not be providing
    treatment)
  • Capability of evaluating offenders who are illiterate or non-English-speaking, when needed (Popkin et al., 1988)

Lacey et al. (1999) conducted a validity study of a number of popular problem-drinking screening instruments used for DWI offenders. All of the assessment instruments studied were effective in identifying problem drinkers to some degree. The CAGE+C, a relatively short instrument which includes four questions about: Cutting down on alcohol; friends or family being Annoyed with the offender’s drinking; feeling Guilty the next day about drinking; and drinking an Eye-opener in the morning; plus five questions relating to daily alcohol Consumption, correctly identified 72 percent of the problem drinkers and 76 percent of the nonproblem drinkers. The most sensitive and least specific instrument was the Substance Abuse/Life Circumstance Evaluation (SALCE), which correctly identified 92 percent of the problem drinkers but only 57 percent of the nonproblem drinkers. The other instruments assessed in that study included the Michigan Alcohol Screening Test (MAST) which correctly identified 79 percent of problem drinkers and 85 percent of nonproblem drinkers; the Mortimer-Filkins (M-F) test which correctly identified 78 percent of problem drinkers and 66 percent of nonproblem drinkers; and the Driver Risk Inventory (DRI) which correctly identified 82 percent of problem drinkers and 65 percent of nonproblem drinkers. Also assessed were the CAGE+6, which added six questions about daily consumption of alcohol and correctly identified 83 percent of problem drinkers but only 26 percent of nonproblem drinkers.

However, in a recent review of screening instruments and procedures for evaluating DWI offenders, the best-rated instruments for DWI screening were the MacAndrew scale of the Minnesota Multiphasic Personality Inventory (MMPI) and the Alcohol Use Inventory (AUI), which were demonstrated to have the best predictive value of DWI recidivism (Chang et al., 2002). The MMPI was also demonstrated to best determine alcohol use disorder, and it detects about 67 percent of DWI recidivists but identifies only 48 percent of problem drinkers.

The Research Institute on Addictions Self Inventory (RIASI) is also showing promise as a predictor of DWI recidivism (Nochajski and Wieczorek, 1998; Nochajski, Walter, and Wieczorek, 1997).

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