One of the predominant recent concerns of the impaired driving safety community in the U.S. has been the development of countermeasures that target high-risk individuals variously referred to as hard core, persistent, chronic, or repeat drinking drivers. Although there is no single operational definition for this group, two criteria are often applied: evidence of repeated alcohol-impaired driving, such as repeat convictions, and driving with a “high” Blood Alcohol Concentration (BAC).
Although enhanced sanctions for repeat DWI2 offenders have been part of most state legal systems for many years, a more recent phenomenon is a statute or regulation that applies more severe sanctions to first-time or repeat offenders with higher BACs. Historically some prosecutors have routinely negotiated, and some judges have routinely applied, stronger sanctions for high-BAC offenders within the framework of the general impaired driving statutes. Now an increasing number of states have enacted statutes that enable or mandate enhanced sanctions for these offenders. The primary objective of a high-BAC sanctioning system is to reduce recidivism among this high-risk group of offenders by increasing the certainty and severity of punishment and by reducing statutory or procedural “loopholes.” In a high-BAC sanctioning system, the high-BAC threshold is established above the per se level for a standard offense, currently set by states at .08 or .10.
The rationale for high-BAC sanctioning systems is that DWI offenders with higher BACs pose a greater risk than offenders with lower BACs. There is evidence that DWI offenders with higher BACs are more likely than DWI offenders with lower BACs to be involved in a crash (Zador, Krawchuck, Voas, 2000; Compton et al., 2002). Data from the National Highway Traffic Safety Administration (NHTSA) indicate that in the year 2000, 64 percent of drinking drivers who were fatally injured had BACs of .15 or higher (Hedlund, McCartt, 2002). After adjusting for covariates such as driver age and gender, the relative risk of a crash of any severity increases as BAC increases (Compton et al., 2002). Compared to drivers with zero BACs, the relative risk of a crash is 4.8 for a BAC of .10, 22.1 for a BAC of .15, 81.8 for a BAC of .20, and 153.7 for BACs of .25 or higher.
It is estimated that over half the drivers arrested or convicted of DWI have BACs of .15 or above (Hedlund, McCartt, 2002). A study of DWI offenders in California found that first-time offenders with high BACs were more likely to recidivate than first-time offenders with lower BACs (Peck, Helander, 2001). Some studies suggest an association between a higher BAC and a higher likelihood of alcohol abuse or dependence (Ruud, Gjerde, Morland, 1993; Snow, 1996), but other research has not found this association (Wieczorek, Miller, Nochajski, 1992).
Several safety organizations advocate that states adopt high-BAC sanctioning programs. In 2001, Mothers Against Drunk Driving (MADD), the National Transportation Safety Board (NTSB), and The Century Council developed similar strategies for addressing “hard core” drinking drivers, defined as persons who drive at BAC levels of .15 and above or those who have a prior DWI offense. For example, according to the NTSB (2000), a model program to reduce DWI should include legislation that defines a BAC of .15 or greater as an aggravated DWI offense that “requires strong intervention similar to that ordinarily prescribed for repeat DWI offenders.” According to the NTSB, the sanctions for high-BAC offenders should include mandatory treatment and administratively imposed vehicle sanctions.
In passing the TEA-213 legislation in 1998, Congress amended the alcohol-impaired driving countermeasures incentive grant program (“410” program), which provides funding for states that meet certain criteria. Beginning in federal fiscal year 1999, a state could qualify for a basic 410 grant by meeting five of seven criteria to qualify for a programmatic basic grant or a performance basic grant. The criteria for the programmatic basic grant included a program targeting drivers with a high BAC.
According to the final rule issued by NHTSA in 2000, states qualifying under the high-BAC criteria must demonstrate the establishment of a graduated sanctioning system that applies enhanced or additional sanctions to drivers convicted of alcohol-impaired driving if they were determined to have a high BAC. To qualify as a high BAC system, the state’s BAC threshold must be higher than the BAC level for the standard DWI offense, and also less than or equal to .20 percent BAC. The enhanced sanctions must be mandatory; must apply to the first DWI offense; and may include longer terms of license suspension, increased fines, additional or extended sentences of confinement, vehicle sanctions, or mandatory assessment and treatment as appropriate. The enhanced sanctions may be provided by state law, regulation, or binding policy directive implementing or interpreting the law or regulation.
Despite the attention focused on enhanced sanctions for high-BAC offenders, the current project represents the first systematic study of the features, implementation, or effects of high-BAC sanctioning systems. The primary objectives of the study were to:
In the first phase of the study, a summary of states’ high-BAC sanctioning systems was prepared (McCartt, 2001). It was based on a review of the literature and states’ laws and on discussions with states with high-BAC sanctioning systems. States’ high-BAC sanctioning systems as of January 2002 are summarized in Chapter II of this report.
In the second phase of the study, a process and outcome evaluation of Minnesota’s high-BAC sanctioning system was conducted. Chapter III of this report presents an evaluation of Minnesota’s statute.
2 In this report, the term "DWI" (Driving While Intoxicated) is used as a generic term for alcohol-impaired driving.
3 Transportation Equity Act for the 21st Century.