On a crisp Friday evening in October there was a football game at the Mill Valley High School. The home team won, and the crowd was jubilant. After the game, students with cars began rounding up their friends. One of their schoolmates was having a party. His parents were out of town, and their large home was ideal for a celebration. Also, there would be several kegs of beer on hand.
Seventeen-year-old Tom Johnson was a senior. His academic and disciplinary records at school were exemplary, and he was well liked by everyone. He was on the student council and had just been accepted to State University. He was thrilled about the game and his early admission to college. Three friends hopped in his car, and they were off to the party.
At two oíclock the next morning, Sally Winters was driving home from her motherís house. She had spent the day and most of the evening helping her mother can fruits and vegetables from her garden. Sally had to work later that afternoon at the phone company, so she couldnít stay over at her motherís. She also had to get her two small children to bed.
The roads in Mill Valley were typical of most rural jurisdictions: winding, unlit, two-lane asphalt structures whose markings had not been repainted in years. Sally made a turn out of the woods and entered a straightaway. She squinted as the high beams of approaching headlights hit her eyes. She was two miles from home.
Tom Johnson groggily reached for the high-beam switch and activated the windshield wipers. He was very tired, and the wind rushing in the window and the blast of rock and roll from the radio were not keeping him alert. He nodded forward, then snapped his head back. He wished he could sleep like the others, the three friends snoozing beside and behind him. He was almost there. A couple more miles and heíd be home.
Sally wondered why the approaching car was not dimming its lights. She flashed her high beams, but the other car did not respond. It was approaching fast, almost upon her. Sally glanced at her three-year-old daughter, limp with sleep in the passenger-side seat belt, and then she looked at the other car. The headlights were no longer in the other laneóthey were directly in front of her. Sally screamed.
Tom Johnson was the only survivor of the crash. Sally and her two children were killed, as were the three passengers in Tomís car. Tomís blood-alcohol content (BAC) was 0.11 percent. He was charged by police with driving while intoxicated and six counts of automobile manslaughter. And now the case has been presented to you, the prosecutor.
As horrifying as the previous scenario is, it is not atypical of juvenile impaired-driving cases that have occurred in virtually every jurisdiction in the United States. A combination of youthful bravado, social habits, speed, low alcohol tolerance, and peer pressure often lead to tragedy. The question for the prosecutor receiving the Tom Johnson case is not just how to handle the particular case. It is, or should be, this: How could the tragedy have been prevented?
The following presentation deals with the overall issue of prevention. Also considered is the role the prosecutorís office should play in the prevention and prosecution of juvenile impaired-driving cases?
Overall, juvenile impaired-driving cases are but a small proportion of the countryís total number of drunk driving cases. However, fatalities are far more likely to occur with a juvenile impaired driver than an adult. The potential for a case like Tom Johnsonís haunts every prosecutorís office in the nation. Are prosecutors prepared to deal with this type of case?
The first step in analyzing preparedness is to determine the office policy regarding impaired driving by juveniles. Aside from the obvious, that is, that the prosecution opposes impaired driving, the chief prosecutor in each jurisdiction should look at the issues and determine whether there is a specific office policy regarding the matter. An office policy on prosecution of juvenile impaired-driving cases ensures consistency and uniformity of prosecutions throughout the office. Moreover, it allows the prosecutor to refer to a clearly articulated position on the issue when dealing with the public or the media.
The policy should state, very clearly, a specific position on the issues. It should be written in concise, unequivocal terms. It should be comprehensive as to all the aspects of the subject matter, but it should contain an escape clause that allows the chief prosecutor to exercise discretion in making exceptions.
The policy itself should be tailored to the needs and resources of the particular jurisdiction. It could state that any juvenile with a blood-alcohol content above a certain level will be prosecuted to the fullest extent the law allows. It could provide for diversion programs that take into account prior record, BAC, factual circumstances (for example, whether a crash occurred), and any other factors that would make a diversion program preferable to full prosecution. It could limit plea bargaining in certain circumstances. The policy could set virtually any parameters that the chief prosecutor feels are appropriate. It should provide a firm foundation on which the prosecution of all juvenile impaired-driving cases can rest.
The absence of a written policy could be a nightmare. With the stratification of most prosecutorsí offices, the lower echelon trial attorneys are the troops in the field carrying out orders from above. But they must know exactly what those orders are. If a prosecutor in the trenches plea bargains a case such as Tom Johnsonís, he can compromise the integrity and credibility of the chief prosecutor in an instant. If, however, there is a specific written policy, the trial prosecutor knows the limits in each case. Without a written policy, assistants may unknowingly place the chief prosecutor in an awkward position by their trial decisions. With a written policy, everyone in the office knows the rules. If an exception is needed, the escape clause may be used under the express direction of a supervisor.
Another important reason to have a specific, articulated policy concerning impaired driving by juveniles is that the policy requires the chief prosecutor to focus on the issues before a Tom Johnson case arises. The issues can be confronted and a decision made in advance on how to handle them. Diversion programs can be used, a hard-line stance maintained, or new approaches or diversion programs invented by the prosecutor. The policy can be innovative or conservative, but the office will be prepared. No reporter will be able to stick a microphone in the face of a prosecutor after a Tom Johnson case and elicit indecision or equivocation, and the prosecutor will be able to use the policy affirmatively in dealings with police, victims, advocacy groups, and the general public.
If a policy has already been prepared, it should be examined periodically to determine if it is still consistent with current law and if it works. In the prosecution business, nothing can be written in stone. An outdated or ineffective policy may be worse than no policy at all.
Once a policy has been developed, it is important for the prosecutor to ensure that local law enforcement agencies are aware of the policy and agree with it. The prosecutorís authority to establish a policy is, however, independent and absolute. He or she need not consult with any outside agencies before establishing it, but it may be beneficial to discuss the policy with the police before it is finalized. The police in the field are crucial to the success of any prosecutorial program concerning juvenile impaired drivers. Their strategy, enthusiasm, morale, and effectiveness depend on the support they receive from prosecutors when cases go to court. For this reason, it is imperative that police and prosecutors be on the same wavelength with respect to the issue of juvenile impaired drivers.
There sometimes exists a love-hate relationship between police officers and prosecutors. The police work diligently to resolve a case only to see it plea-bargained away or dismissed in court with little or no explanation. This is extremely demoralizing to officers on the force and saps their desire to extend themselves on such cases in the future. They may forgo stops of suspected juvenile impaired drivers if they feel the cases will be slighted in court.
The flip side to lack of coordination between police and prosecutors is a concerted strategy built on the foundation of a clearly enunciated prosecutorial policy. In that situation, the police are assured that there will be a follow-up in court to complement their efforts in the field. They know their efforts will not be undercut by arbitrary decisions of assistant prosecutors, and they should be given the courtesy of a full explanation of the rationale for any exceptions to the rule.
As a practical matter, then, the earlier the prosecutor obtains police input on his or her juvenile impaired-driving policy, the better. This can be done by way of meetings or memos between the chief prosecutor and the chief of police. Once there is an agreement or understanding between them as to what the policy is, then it is absolutely imperative that everyone in the system be notified and given a copy of the final policy statement. Periodic update memos or meetings should then be arranged to fine-tune the policy with feedback from the field as to its effectiveness.
An obvious drawback to the coordinated police-prosecutor approach is the lack of time and resources that a chief prosecutor may wish to devote to such a project. The demands of major felony prosecutions often overshadow issues such as juvenile impaired driving. The good news is that this policy can be promulgated in a reasonably short time. The resource materials, statistics, program alternatives, and suggested strategies have been compiled by the Police Executive Research Forum (PERF) and are available on request.1 The meeting or memo time also need not be extensive. It must merely ensure that both wings of enforcement, police and prosecution, are beating in unison. The alternativeĖnot preparing such a policyĖcan be illustrated by reference to the Tom Johnson case that led off this chapter. With six people dead, and a seemingly responsible ďAĒ student held accountable, the prosecutor will be challenged. The media and public will focus attention on the prosecutorís office, and the outcry will be deafening. How could this have happened? What is the prosecutorís record on juvenile impaired drivers? What steps had the prosecutor taken to discourage such conduct? And on and on . . . .
The prosecutor who has dealt with the issue and has a set of responses already prepared via a stated policy will be able to weather the storm. To carry the notion even further, if such a policy had existed, perhaps Tom Johnson would not have attempted to drive that night and the crash would never have occurred. It is food for thought, and certainly incentive enough to take the short time necessary to confront the issue of juvenile impaired driving and articulate a policy concerning it.
Once a prosecutor has opted to establish a policy, it is incumbent on him or her to know what alternatives are available in the enforcement arsenal. The following are examples of elements that may be included in an articulated policy.
The policy may decree that all juveniles will be arrested and processed and that there will be no exceptions. To facilitate this approach, all states have lowered the BAC necessary for conviction to a minimal amount (.02 or less for drivers under age 21). The arrest is then followed by full processing and prosecution with no plea bargaining allowed. This approach, coupled with a public relations campaign designed to alert juveniles to the consequences of drinking and driving, is a deterrent-oriented concept that requires following through on the threat of full prosecution. If frequent exceptions are made or the approach is watered down by either police or prosecutor action, it may not deter such behavior. Both prosecutors and police must speak with a single voice on this issue, and juveniles must listen.
An alternative to the harsh ďarrest and processĒ approach may be the post-arrest diversion of certain qualified juvenile DUI offenders into programs before and instead of court proceedings. These programs may be set up and administered by the police, the prosecutorís office, or another appropriate agency. The responsible agency might use combinations of training classes, alcohol rehabilitation, driving school, community service, victim-impact panels, or other means that teach the offender the perils of alcohol and driving. The parameters as to who qualifies for such a program may be based on the seriousness of the offense, the age of the offender, BAC, or any other characteristic that makes that particular juvenile offender susceptible to a treatment approach. In any event, the use of diversion programs should not be allowed to be construed by juveniles in the jurisdiction as a free shot at impaired driving. The programs should be demanding and punitive enough to provide a deterrent in and of themselves. They should also be designed to educate and rehabilitate young offenders.
Juveniles are not permitted to drink alcoholic beverages, much less drink and drive. Another aspect of the overall juvenile impaired-driving policy that a prosecutor may wish to coordinate with police is enforcement of laws on underage drinking and possession of alcohol as well as monitoring of liquor-serving and liquor-selling establishments. Sting operations, keg identification programs, and monitoring of bars, athletic events, and student gatherings all aim to stop minors in possession of alcohol before they drive under its influence. It is another approach with the same ultimate goal: to prevent the offenses.
If such an approach had been in effect in Mill Valley, perhaps Tom Johnson would not have been able to drink that night and six lives would have been saved.
The keg might not have been as readily available. The seller might not have been so lax in letting a minor buy if the jurisdiction had been actively policing and enforcing its liquor laws.
Speculation after the fact cannot undo the damage, but a cohesive, energetic policy in place before the fact may prevent the damage from occurring.
A policy on juvenile impaired driving loses much of its effectiveness if the public is unaware of it. There is less deterrent value to the program, and the risk of cases like Tom Johnsonís increases. It is necessary for the prosecutor, therefore, in concert with the police department, to inform the public. Participation in public forums, attendance at PTA meetings, liaison with groups such as MADD (Mothers Against Drunk Driving) and SADD (Students Against Destructive Decisions), press conferences, press releases, billboards, newsletters, and any other means of communication by prosecutors or police personnel can assist in creating awareness. This approach not only alerts juvenile drivers to the possible consequences they face if they drink and drive, it also educates them as to the seriousness of the offense itself. In this regard, it has been effective sometimes to shock young drivers by confronting them with paralyzed victims or convicted peers who can warn of the terrible aftermath of such conduct.
The use of public awareness programs concerning juvenile impaired driving raises the consciousness of the community, promotes debate and discussion on the issues, and increases the effectiveness of the prevention mode of the prosecutorís policy. Clearly, such an approach adds to the visibility of both the prosecutorís office and the police and sets them up as leaders in the war against juvenile impaired driving.
Combining the best prosecution policy with the best policing, the best public relations campaign, and the best prevention measures goes for naught if the court system does not impose appropriate sanctions when cases are litigated. Lenient, inconsistent, or inappropriate sentences can undercut the best efforts of the prosecution team.
It is important that prosecutors communicate their position and policy to judges. The judges need to know why the prosecutors take the positions they do on the issue, and they need to know the range of sanctions that the prosecutor finds acceptable. If prosecutors take a consistent position on an issue, judges know what to expect and will be more readily prepared. It is important, therefore, that prosecutors not make frequent use of the escape clause and lose credibility with the court. If the policy is strict, prosecutors should be consistently strict.
On a practical level, informing judges of prosecutorsí juvenile impaired-driving policy can be done via several means. Many jurisdictions have regular bench-bar meetings that allow a forum for such a presentation. If this is not available, a meeting can be requested that includes representatives of the defense bar to preclude allegations of impropriety; the policy can be aired there. The policy can also be forwarded in written form, either in a special memo or as part of a bar association newsletter or similar publication. The bottom line is that judges need to be aware of the policy. They might not always provide dispositions consistent with it, but they need to know of its existence and of prosecutorsí commitment to it. Under those circumstances, everyone in the processófrom police in the field to prosecutors to judgesóis fully aware of the policy and the philosophy behind it.
Often, inexperienced prosecutors are assigned to juvenile court in an on-the-job training mode until they are ready to tackle adult misdemeanors and serious felonies. In addition, the financial resources of most prosecutorsí offices do not allow the luxury of keeping experienced people in juvenile court.
If a chief prosecutor has decided to take a stand on the issue of juvenile impaired driving and has established a policy in this regard, he or she must address resource allocation. Who will be assigned to oversee the policy? What training will be provided? Who will coordinate the public relations campaign? Who will evaluate the program and make recommendations as to changes that should be made? The answers to these questions do not necessarily require a restructuring of the office. If the juvenile court is staffed by less experienced personnel, there must be an experienced supervisor at some level who is up to speed on all aspects of the juvenile impaired-driving policy and can provide guidance and training to less experienced personnel. The chief prosecutor cannot simply formulate the policy, disseminate it, and hope that it flies. He or she must appoint an experienced, enthusiastic supervisor to oversee the project. Day-to-day operations may be carried out by less experienced prosecutors, but if the policy has any chance of success, someone in the organization must devote the supervisory time and effort to implement it.
Another aspect of juvenile impaired-driving prosecutions that must be addressed is training for personnel who administer the programĖthat is, police in the field and prosecutors in court. Each must be fully trained on the latest techniques, laws, procedures, and rules that affect their areas of responsibility. Again, the best policy in the world is in jeopardy if the people carrying it out are using ineffective methods.
It is important for the chief prosecutor, therefore, to include juvenile impaired-driving procedures in continuing legal education programs in the office. Of course, if no such education programs exist, they should be created. Court holidays make excellent opportunities for prosecutors to close the office and set up in-house training. This approach can be inexpensive, practical, and extremely informative. It ensures that those carrying out the policy are fully informed of all the latest information on the subject.
The police usually have their own in-service training programs that are mandatory for all officers. Many of these programs feature techniques for apprehending drunk drivers, as well as impaired juvenile drivers. If chief prosecutors have established comprehensive juvenile impaired-driving policies, it is important for them to confirm that the police are, in fact, receiving training on those policies. As a bonus, they could allow their prosecutors to attend the sessions and to participate in ride-along programs with police. This not only improves the working relationship between police and prosecutors, but it also allows a firsthand look at the practical aspects that must be dealt with in these kinds of cases. The more joint police-prosecutor training programs that can be arranged, the better. But it is incumbent on chief prosecutors to ensure that such training takes place.
Motor Vehicle Administration
In most states, the motor vehicle administration (MVA) has several ways to control juvenile drivers. Restrictive licenses, graduated licenses, administrative license revocations, driver training programs, and strict testing procedures are but a few of the methods that MVA administrators could use in combating juvenile impaired driving. Because MVAs are independent of the prosecutorís office and the court system, it is difficult for prosecutors to incorporate MVA procedures directly into their policies. They can, however, complement their enforcement philosophy with the administrative penalties that await a convicted offender. It is very important, therefore, for prosecutors to know the full range of administrative restrictions available in their jurisdictions and to have a line of communication open to the MVA concerning suggestions or changes. Communication and coordination between the prosecutorís office and the MVA can only assist, not hamper, the overall juvenile impaired-driving policy.
If a chief prosecutor wants to take an extra step beyond the establishment of a comprehensive policy regarding juvenile impaired driving, he or she could institute or join a community-based task force to address the issue. This would be a very desirable approach: an opportunity to involve the police, the schools, the prosecutors, the courts, citizen groups, motor vehicle administrators, legislators, and other interested parties. Moreover, the visibility of the problem would be enhanced, and all available resources could be marshaled to combat it. For more information on setting up a task force or policy group, see Strategies for Success: Combating Juvenile DUIóPart I: Building Programs That Work.
An Alternative Ending
The prosecutor in Mill Valley had established a comprehensive juvenile impaired-driving policy that included strict enforcement, aggressive control of alcoholic beverages, an aggressive public awareness campaign, extensive police training, and a task force. Kegs were registered; police patrolled football games and set up sobriety checkpoints; parents and students signed pledges not to serve alcohol or drink and drive; and the school had just hosted a speech by a quadriplegic victim of an underage impaired driver.
Tom Johnson went to the party, but there was no keg. He did drink one beer from a can, and he partied until 2:00 a.m., but he did not drive his car. The car was driven by a friend who had not touched alcohol. Tom knew he should not and could not get behind the wheel of his car after consuming even one beer. He knew that the prosecutor would seek the maximum penalty against him, and he would lose his license. He was also terrified of ending up in a wheelchair. There was no peer pressure for him to drive; in fact, the pressure was for him not to drive.
Sally Winters made her turn out of the woods and confronted the high beams of an oncoming car. She glanced at her sleeping child and flicked her lights. The beams of the other car immediately went to low, and the two vehicles passed. Sally continued home and put her two daughters to bed.
1 Contact PERF at 1120 Connecticut Ave., N.W., Suite 930, Washington, DC 20036.