Sentencing And dispositions Of Youth DUI And Other Alcohol Offenses: A Guide For Judges And Prosecutors NHTSA People Saving People Logo, www.nhtsa.dot.gov
ACKNOWLEDGMENTS

I. INTRODUCTION

II. THE FACTS

III. THE LAWS

IV. THE JUSTICE SYSTEM

V. DISPOSITIONS AND SENTENCES

VI. MONITORING AND ENFORCEMENT

VII. RECORDING, SHARING, AND USING INFORMATION PERTAINING TO ALCOHOL OFFENSES AMONG YOUTH

VIII. ADMINISTRATIVE AND COMMUNITY RESPONSES TO UNDERAGE DRINKING AND DUI: THE ROLE OF THE JUDICIAL SYSTEM

IX. RECOMMENDATIONS FOR POLICY AND RESEARCH

X. REFERENCES

XI. RESOURCES

IV. The Justice System


While surveys of youth suggest that underage alcohol offenses are common, only a small percentage of all such offenses are formally prosecuted and result in sanctions. Many of these offenses go undetected by police. Among those offenders that police do apprehend, many are not arrested. Among those that are arrested, many are not formally prosecuted. This chapter addresses the challenges law enforcement agencies face in apprehending youthful alcohol offenders, and the pre-sanction processing of those offenders that do enter the court system. Additionally, it describes case processing in the courts, distinguishing between juvenile and other (traffic, criminal, or family court) jurisdictions. Diversion, the use of Teen Courts, and the importance of alcohol and other drug screening and assessments are also discussed.


Challenges to Apprehending Youth for Alcohol-Related Offenses
Law enforcement officers face a number of challenges to apprehending youth for alcohol-related offenses. The courts' disposition of violations of the minimum legal drinking age (MLDA) laws and impaired driving laws may either encourage or discourage law enforcement efforts. Police are more likely to enforce these laws if the courts' dispositions indicate that the court takes these violations seriously.

Barriers to the Enforcement of MLDA Laws
One goal of law enforcement is to target underage drinkers before they get into a car and drive. It is difficult for police to detect low blood alcohol concentrations (BACs), thereby making apprehension in other settings, such as parties or retail establishments, the focus of many law enforcement efforts.

Consumption, possession, and purchase of alcohol by underage youth is variously prohibited, depending on State statutes. Nevertheless, many communities treat underage drinking as a normal rite of passage for adolescents and fail to support the enforcement of MLDA laws (Kusserow 1991; Wolfson et al. 1995). Using arrest data from 1988 through 1990, and self-reported drinking data reported from a national survey of high school students, Wagenaar and Wolfson (1994) estimated that only 2 out of every 1,000 occasions of underage drinking result in the drinker's arrest, and that only 5 of every 100,000 youth drinking occasions result in sanctions against an alcohol outlet.

Surveys of law enforcement officers have found that, while police are aware of the extent of MLDA violations in their communities, they often are discouraged from taking stronger action due to factors including:

  • understaffing, which may force officers to give priority to other law enforcement areas;
  • the low status of MLDA enforcement among police, compared with the enforcement of drug-related offenses; and
  • officers' skepticism of the courts' handling of MLDA violations in a way that would deter future offenses. Officers reported that the penalties for these violations were often light and inconsistent, resulting in the perception that enforcement was a waste of time (Wolfson et al. 1995).

Factors Hindering the Enforcement of Impaired Driving Laws
Aspects of drinking behavior and driving behavior by young people that hinder enforcement of impaired driving laws include the places and times where young people drink and the driving cues they display (Preusser et al. 1992). Police who monitor drivers for impairment typically patrol roads and highways leading to bars. However, underage drinkers tend to drink in homes, parks, or more remote areas. In addition, young people are most likely to drink and drive on weekend nights, when police officers are in high demand. Young impaired drivers may be difficult to detect because they often display types of behaviors at low BACs that are not typically seen in older drivers. Specifically, speeding, aggressive driving, and hard weaving are signs of youthful impaired driving, even at lower BACs, where these behaviors may not be cues of impairment for adults.

In addition, time-consuming arrest procedures and legal requirements for detaining juveniles may hinder enforcement officers. A juvenile DUI arrest may take the officer off the road for 2–4 hours. Furthermore, juveniles who are arrested often must be supervised, sometimes for hours, until a parent or guardian can be reached.

Factors Hindering Enforcement of Zero Tolerance Laws
Zero tolerance laws may be especially difficult to enforce because young drivers with very low BACs are less likely than more impaired drivers to exhibit the driving cues that traditionally provide the basis for an initial traffic stop. Even after stopping a young driver, an officer may not find probable cause to investigate further if the driver has a very low BAC. For example, a driver with a BAC of 0.02 is less likely than a driver with a higher BAC to have the scent of alcohol on his or her breath, to have bloodshot eyes, or to exhibit the other cues that officers use to establish probable cause for further investigation. Surveys conducted with young drivers in Maine after the State enacted a zero tolerance law indicated that police gave BAC tests to only 19 percent of those stopped after drinking, and wrote citations to only 13 percent (Hingson et al. 1989).

Trends in Underage Alcohol-Related Arrests
As illustrated in figures 4-1 and 4-2, arrest rates for both non-DUI and DUI alcohol offenses increased nationwide between 1993 and 1996 for persons ages 10–17, following a period of decline (Snyder, unpublished data, 1998). This may reflect changes in levels of enforcement activity, rather than levels of youth drinking and DUI.

Law Enforcement Officers as Gate-Keepers to the Court
Police officers have some discretion when apprehending a youth for alcohol possession, consumption, purchase, or impaired driving. They may take administrative action on behalf of the State's driver licensing agency and/or refer the offender to the court. Administrative license suspension and revocation, and other administrative actions, are addressed in chapter 8.

Case Processing in the Court System
When a law enforcement agency refers an underage offender to the court for an alcohol-related offense, the case may be referred to a juvenile court, traffic court, criminal court, or family court, depending on the State statute. Underage alcohol-related offenses are processed in many different settings, and the philosophical goals and court procedures vary widely among them.

Arrest Rates Of Persons Ages 10-17 For Non-Driving Alcohol Offenses Chart

Arrest Rates Of Persons Age 10-17 For Under The Influence (DUI) Chart

The primary differences between the juvenile and criminal justice systems in handling offenders, as well as their common grounds, are shown in Table 4-1. As the table indicates, the language of the two systems, as well as their assumptions and procedures, differ in certain respects.

Although there are variations, typically in juvenile courts when an alcohol-related offense has occurred, a law enforcement officer will issue a citation or refer the case to the prosecutor's office or to a juvenile intake department. An initial decision will be made whether the case will be handled formally or informally. Cases handled informally by the intake department do not involve the filing of a petition or an adjudicatory hearing. Many of these cases subsequently are dismissed outright; others may result in informal probation, referral to another agency, payment of fines or restitution, or voluntary treatment outside the home. If the intake department decides to process the case formally, it files a petition and the case is placed on the court calendar for an adjudicatory hearing (or, in very rare instances, a waiver hearing for the judge to determine whether to transfer the case to criminal court).

At the adjudicatory hearing, the judge must decide whether or not the youth should be adjudicated delinquent (for a DUI offense) or a status offender (for underage purchase, possession, or consumption). If the youth is adjudicated, the judge then makes a dispositional decision. This may include probation, referral to another agency or treatment program, a fine, restitution, community service, or commitment to a residential facility. If the youth is not adjudicated, the case usually is dismissed. Alternatively, the youth may agree to some sort of voluntary diversion option. Often, a dispositional order includes multiple sanctions, such as probation plus community service.

Although there are no national or even statewide data comparing the dispositions of similar cases handled by the various court systems, data on the handling of alcohol-related offenses in the juvenile court are available. Figure 4-3 shows both the case processing and disposition rates per 1,000 DUI cases referred to a juvenile court in 1994 and the processing and disposition rates per 1,000 cases referred for other alcohol-related violations referred to a juvenile court in the same year. The figure makes clear that in juvenile courts, DUI cases are handled differently from other alcohol-related cases (such as liquor law violations). While most DUI cases were petitioned, or handled formally by the court (72 percent), only 45 percent of the non-DUI alcohol cases were handled this way. Similarly, 66 percent of the DUI offenders, but 56 percent of the other alcohol offenders, were adjudicated (or convicted, in the terminology of the criminal court). Focusing on dispositions of DUI offenders, 68 percent of those that were adjudicated were ordered to serve a term of probation while 32 percent of the nonadjudicated and 27 percent of the non-petitioned were put on informal probation. Among the other alcohol-related cases, only 46 percent of the adjudicated offenders were put on probation, while 45 percent received some other disposition (Snyder 1997b).

Case processing for alcohol-related offenses also varies among the adult court systems. For youth 18–20 years old, the vast majority are handled in adult courts. In some States (e.g., Florida), 16- and 17-year-olds go to traffic court for DUI offenses, but not for other alcohol offenses. For youth under 21, there is no centralized source of data available regarding case processing outcomes.

Case processing varies among all of these various court systems, and each system has its own strengths and weaknesses for dealing with offenders. Regardless of these differences, however, certain overriding issues are important to consider in any setting. They are the swiftness of dispositions, maintaining public safety while cases are pending, the issue of diversion, and evaluating offenders for alcohol and other drug (AOD) problems.

Table 4-1
COMPARISON OF JUVENILE AND CRIMINAL JUSTICE SYSTEMS
JUVENILE JUSTICE SYSTEM COMMON GROUND CRIMINAL JUSTICE SYSTEM
OPERATING ASSUMPTIONS
Youth behavior is malleable

Youth are in families, not independent Rehabilitation is usually a viable goal

Primary goal of community protection Law violator accountability General deterrence works
Emphasis on sanctions proportional to offense

Open public access to all information

PUBLIC ACCESS TO INFORMATION
Limitations on public access to information Open public access to all information
DIVERSION FROM THE SYSTEM
Youth are informally diverted from the system by intake or juvenile probation into juvenile court services Many people are diverted from the system formally and informally by the prosecutor
INTAKE-PROSECUTION
Decision to file a petition for court action may or may not be made by the prosecutor

Decision to file petition based on both social and legal factors

Probable cause must be established

Prosecutor acts on behalf of the State

Plea negotiation is common

Prosecution discretion exists in charging and plea agreements

Previous history of violations is valuable to be used in the charging, disposition,
or sentencing

Prosecution decision based primarily
on legal facts
ADJUDICATION-CONVICTION
Usually trial is by judge, not jury

If guilt is established, the youth is adjudicated delinquent or a status offender

Constitutional rights apply

Standard of “proof beyond a reasonable doubt”

Guilt must be established on individual offenses charged for conviction or disposition

Presumption of innocence applies

Defense attorney is appointed if accused is unable to retain private counsel

Right to jury trial

Unanimous verdict usually necessary to establish guilt

DISPOSITION-SENTENCING
Dispositional philosophy includes significant rehabilitation component

Dispositional alternatives cover wide range of community-based and residential services

Disposition may be indeterminate Periodic court review of offender Juvenile court jurisdiction ends at specific age (ranges from 17-24)

Disposition orders may be directed at parents

Decision influenced by current offense, offending history, and mitigating or aggravating factors

Offender accountability is the goal Victim’s views available to court

Restitution may be afforded to victim

Sentencing philosophy based largely on proportionality, punishment, and offender’s criminal history

Sentence often is determinate

Fines often imposed on offender

AFTERCARE-PAROLE
Combines surveillance and reintegration activities System of monitoring behavior on release

Violation of conditions can result in incarceration or modified conditions of probation

Primarily a surveillance and reporting function to monitor illicit behavior
Adapted from Snyder and Sickmund, 1995.

Juvenille Court Case Processing Of Alcohol-Related Cases,1994 Chart

The Importance of Swift Dispositions to Deter Youthful Offenders
The swiftness and certainty of punishment are important in deterring subsequent offenses (Ross 1984; Jones and Lacey 1991). Many justice professionals believe that immediate consequences are especially important to deter youthful offenders. If a youth is required to appear in court or is sanctioned several months after committing an offense, the deterrent effect of the sanctions is diminished (National District Attorneys Association [NDAA] 1991).

Safety During Case Processing.
Maintaining the public safety during case processing can be achieved through administrative license actions and detention.

Administrative License Restrictions
Administrative license actions represent one method of protecting the public while an offender's case is being processed. Although the State driver licensing agency may take an initial license action following the offender's arrest, the court needs to coordinate with the agency to ensure that the period of license loss does not expire before the case is heard in court. If the case cannot be heard before the license is to be returned to the offender, the court needs to take additional and independent measures to protect the public safety while the case is pending.

Detention During Processing
Youthful offenders charged with alcohol-related offenses usually do not need to be and rarely are detained during the processing of their cases. Juveniles can be returned to the custody of a parent or guardian. In rare circumstances, a juvenile arrested or charged with DUI (delinquent) or underage purchase, possession, or consumption (status offense) may be held in a juvenile detention facility while his or her case is being processed, if detention is deemed necessary to protect the community, to protect the juvenile, or to ensure the juvenile's appearance in court. However, it is important to note the limitations on secure detention of status offender (and non-offender) juveniles that apply to States participating in the Formula Grants program established under Part B of Title II of the Juvenile Justice and Delinquency Prevention (JJDP) Act of 1974, as amended (42 U.S.C. 5601 et seq.). As of July 1998, only Wyoming and South Dakota were classified as non-participating states in the Formula Grants program. Under Section 223(a)(12)(A) and the implementing Formula Grants program regulation (28 CFR Part 31), detention of status offenders is limited as to time and place. Consequently, in alcohol offense cases qualifying as status offenses, the juvenile must be released, transferred to a non-secure facility, or brought before a judge or magistrate within 24 hours, exclusive of weekends and holidays, of entering a secure juvenile detection facility. State law may limit secure detention to a shorter time period. No detention in adult jails or lockups is permitted.

Diversion
Diversion is an alternative to formal system processing, adjudication, and sanctions. It is designed to hold offenders accountable for their actions, while keeping them out of the justice system (McPhail and Wiest 1995). Court intake staff or the prosecutor determines whether a case should progress into the formal juvenile justice system, or whether it can be diverted and handled informally. The difference between diversion and a court-ordered disposition (the juvenile justice system equivalent of a sentence) is that, in the former, the juvenile voluntarily agrees to comply with conditions of diversion rather than being required to follow a dispositional order imposing sanctions. The sanctions or conditions imposed in either situation may be identical. It is important that juveniles who do not comply with the conditions of diversion be referred to the juvenile court intake or to the prosecutor's office to consider formal system processing (NDAA 1996). Experts agree that diversion may be appropriate for underage drinking or zero tolerance offenders, but that diversion of underage DUI offenders is not. DUI is a serious violation that endangers the public safety.

In most courts, diversion occurs only after the youth admits that he or she has committed an illegal act. After such admission, the intake worker and the juvenile, as well as (in a growing number of instances) the victim, agree to conditions of diversion. This practice, however, varies widely throughout the United States and is not normally required for underage drinking offenses. The NDAA recommends that all diversion programs specifically set forth the requirements expected of the offender, which can include any of the possible dispositions a judge may order after a formal adjudication hearing (e.g., license suspension or revocation, restitution, home detention, and AOD abuse treatment).

The NDAA recommends that diversion requirements be designed to hold offenders accountable for their acts and include elements aimed at rehabilitation, prevention, and education (NDAA 1996). Diversion is potentially a problem, however, if the effect on the offender is so mild that he or she is not effectively deterred. Offenders who participate in a diversion program should not be able to avoid agreement to otherwise mandatory sanctions, such as license revocation. In addition, diversion should not diminish the seriousness of the offense.

In most jurisdictions, diversion may make it difficult for the court to track an offender's prior offenses, as diverted cases may not be included on an offender's record. Jurisdictions utilizing diversion for youthful alcohol offenders need to ensure that adequate records are maintained so that a youth receiving diversion

in one jurisdiction will be ineligible for a similar program in other jurisdictions. The development of State and national record-keeping systems for juvenile offenders would help ensure that offenders are held accountable for their criminal acts. Coordinated record keeping and information sharing are discussed further in Chapter 7.

Regardless of whether diversion is coordinated by the prosecutor's office or another entity (such as the corrections or probation department), it is important that the prosecutor be involved in establishing the eligibility criteria and other guidelines for the program (NDAA 1996). Likewise, it is important that judges be familiar with any diversion programs in use in their jurisdictions, both within the court system and outside of it.

Teen Courts
In some jurisdictions, juvenile offenders charged with status offenses, such as underage drinking or certain misdemeanor offenses (not DUI), may be referred to a teen court, where young people from the community serve as jury members and, along with an adult judge, determine appropriate sanctions. Teen courts are operated by juvenile courts, juvenile probation departments, law enforcement agencies, and private nonprofit organizations and schools working with the court (Godwin et al. 1996). More than 280 teen courts were operating in 31 States as of November 1996 (Godwin 1997).

Teen courts are designed to hold offenders accountable for their actions, while freeing court dockets. They are also designed to educate participating members of the public about the consequences of illegal behavior, and to help build competencies among youth by teaching how the legal system works and how to communicate and resolve problems effectively.

After an admission of responsibility, a youth may be referred to teen court. In these cases, the jury is guided by the judge in determining appropriate sanctions. Sanctions typically include writing a letter of apology, performing community service, or paying restitution to victims. Youth are often required to later serve on a teen court jury. Individual programs have conducted internal evaluations of their effectiveness, but there has been no independent evaluation of teen courts. The limited research suggests that teen courts have the potential to deter further offending, especially among older juveniles (Godwin et al. 1996). For more information on teen courts, contact the American Probation and Parole Association, listed in the Resources section of this Guide.

Evaluating Youthful Offenders for Alcohol and Other Drug (AOD) Problems
DUI offenders may require treatment for AOD abuse. It is critical to determine whether adolescents have AOD problems as early as possible. Evaluating individuals for AOD problems begins with screening and is followed, if necessary, by an in-depth assessment. Screening indicates the presence or absence of an AOD problem. If a problem is indicated, assessment determines its severity. Screening takes 5–20 minutes and can be conducted by court intake workers. Assessment usually takes from 45 minutes to 3 hours, and is conducted by trained professionals from agencies outside the court.

Screening and assessment instruments provide a structured and consistent way to evaluate individuals for AOD problems. Instruments used to evaluate underage offenders should be appropriate for youth and validated on a youthful population. Interviews with the offender can clarify information related to AOD use. In addition, interviews with family members, police, social workers, school counselors, and others who may be familiar with the offender also may yield valuable information (McLellan and Dembo 1993).

It is important for courts to develop policies and procedures to disclose confidential information to appropriate parties, to establish limits of confidentiality, to maintain privacy during the interview, and to obtain informed consent (McLellan and Dembo 1993).

ScreeningInitial screening is appropriate for all offenders referred to the court for impaired driving, and should be conducted as early as possible in their case processing. If possible, screening may be repeated during different stages of their involvement in the system (during intake, preadjudication, and postadjudication) to detect changes in patterns of AOD use, related problems, and the need for services over time (McLellan and Dembo 1993). Staff members providing screening should receive training in legal and ethical issues, instrument administration and scoring, interpretation of instrument results, determination of the offender's reading abilities, and interpersonal communication (McLellan and Dembo 1993).

A variety of adolescent-specific screening instruments are available. They vary in length and scope. Some are specific to alcohol, while others evaluate an individual's use of alcohol and other drugs. Instruments available for screening youth, which have been validated for this population, include the Adolescent Drinking Index: Drinking and You (Harrell and Wirtz 1985), the Personal Experience Screening Questionnaire (PESQ) (Winters 1992), and the Adolescent Alcohol Involvement Scale (AAIS) (Mayer and Filstead 1979).

If screening reveals that there is no underlying AOD problem, the court may wish to consider ordering the offender to participate in an alcohol education program (such programs are discussed in chapter 5). If screening indicates an AOD problem, it is important to perform a comprehensive assessment to determine problem severity.

AssessmentAssessment confirms the severity of an AOD problem and guides treatment planning. Assessment explores many areas of a person's life and can detect factors contributing to AOD use, including an individual's medical and mental health history, family history of alcohol abuse, traumatic family events, home environment, school history, employment history, sexual history, peer relationships, justice system involvement, and social services utilization (McLellan and Dembo 1993).

It is best for assessment to be conducted early in the offender's involvement with the justice system, and relevant sections of the instruments should be repeated both during and after treatment. Assessments should be conducted by trained professionals experienced in working with young AOD users and in the issues surrounding adolescent AOD use. These professionals include AOD abuse counselors, mental health professionals, school counselors, social workers, nurses, and physicians (McLellan and Dembo 1993). To avoid conflict of interest, it is important that assessment and treatment referral be conducted by an independent agency not associated with any treatment program.

A number of assessment instruments are designed specifically for use with adolescents, including the Adolescent Self-Assessment Profile (ASAP) (Wanberg 1991), the Comprehensive Addiction Severity Index for Adolescents (CASI-A) (Meyers 1991), the Personal Experience Inventory (PEI) (Winters and Henly 1989), and the Adolescent Diagnostic Interview (ADI) (Winters and Henly 1993). The use of such instruments should be supplemented with interviews, behavioral observation, and chemical tests, as appropriate (McLellan and Dembo 1993).