phpto - gavelIntroduction

While this compendium concentrates on the repeat DWI offender, many, if not all, of the sentencing innovations can be used for first-time offenders as well. In this introduction, the facts about repeat DWI offenders are profiled. Next, the characteristics of repeat DWI offenders are described. The introduction then summarizes the Federal sentencing requirements for repeat DWI offenders and profiles State sentencing laws. It then showcases the effectiveness of traditional sentencing sanctions in stopping repeat DWI offenders, and suggests the need for innovative sentencing sanctions. Finally, the introduction advocates that judges secure some form of assessment of offenders before they choose the sanctions to be imposed.

Repeat DWI Offenders: The Facts
The grave consequences of driving while intoxicated (DWI) have been documented by research commissioned by the National Highway Traffic Safety Administration, which notes in Traffic Safety Facts—Repeat Intoxicated Driver Laws (April 2004) that:

  • Motor vehicle crashes are the leading cause of death for Americans age 2 through 33, and motor vehicle crash injuries are a major health care problem in the United States. Alcohol-related crashes are a substantial part of this problem.

  • Alcohol was involved in 41 percent of fatal crashes and 6 percent of all reported crashes in 2002.

  • Alcohol-related crashes in the United States cost the public more than $50 billion in 2000, and 75 percent of these costs occurred in crashes in which a driver had a BAC of .10 or higher.

  • Every 30 minutes, someone in the United States is killed in an alcohol-related crash.

  • DWI is the most frequently committed violent crime in the United States.

  • About one-third of all drivers arrested or convicted of DWI have a previous DWI conviction.

  • Drivers with prior DWI convictions are over-represented in fatal crashes and have a greater relative risk of involvement in a fatal crash.

  • Many second- and third-time DWI offenders who had their licenses suspended committed traffic offenses or were involved in crashes during the suspension period. In one study, 32 percent of suspended second-time DWI offenders and 61 percent of third-time offenders were cited for traffic violations during their suspensions.


Characteristics of Repeat DWI Offenders
Research has also documented the characteristics of repeat DWI offenders in State of Knowledge of Alcohol-Impaired Driving: Research on Repeat DWI Offenders (February 2000). Studies show that:

  • The more DWI convictions an offender has, the greater the likelihood that the offender will re-offend. One study has shown that offenders with four prior convictions are four times more likely to recidivate after one year than offenders with two prior convictions; and another study has shown that each prior DWI conviction increases an offender’s recidivism rate by 10 percent per year (click here ).

  • When asked why they continue to drink and drive, the most common reason given by repeat offenders is that they thought they were “OK to drive,” followed by statements such as they just did not think about it, they lacked control over themselves after drinking, there was no one available to drive for them, and it would be OK if they were careful. The percentage of offenders surveyed who indicated that they planned to drink when they knew they would be driving afterward increased with the number of prior DWI convictions: 6 percent with one prior planned to drink; 18 percent with two priors planned to drink; and 31 percent with three or more priors planned to drink (click here).

  • The report notes that because repeat offenders “are such experienced drinkers, they very often believe they are quite capable of driving after drinking and do so knowing that they may be rearrested for DWI”(click here) .

  • Repeat offenders are predominantly male and typically are under age 40, white, low income, unmarried, not college-educated, and are employed in non-white-collar occupations. Their BAC at arrest generally is slightly higher than that of first-offenders, and they commonly suffer from alcohol dependency. They are more likely than first-offenders to have personality and psychosocial problems, and to have a criminal record for other types of offenses, including serious crimes against persons and property as well as other traffic offenses (click here).

A NHTSA-commissioned study on why some individuals repeatedly drive while intoxicated even after being convicted of DWI, which was based on interviews with 182 DWI offenders, found that:

  • A large number of participants in the study described their drinking patterns as problematic, but not their driving after drinking behavior;

  • While arrests and sanctions had an impact, DWI behavior often returned after some period of time;

  • A majority of individuals with revoked or suspended licenses drove anyway, and said they drove very carefully so they would not be detected;

  • A large percentage of participants did not believe they were endangering themselves or others at the time of their DWI offense because they believed they were able to drive safely;

  • Although participants had a strong fear of jail, many said jail alone would not alter their future behavior; and

  • Contact with a caring or concerned individual (judge, probation officer, counselor, or therapist) was cited as having an impact on decisions to alter DWI behavior or drinking patterns.2

These observations contributed to the following conclusions:

  • No single countermeasure can be prescribed as the magic deterrent for all repeat offenders because each person’s lifestyle, circumstances, and personality traits are unique and result in different reactions to similar situations. Conversations during the interviews confirmed that habits and patterns are difficult to change without the desire to change, without taking responsibility for personal actions, and often without help seeking alternatives to committing the problem behavior. While individuals cannot be forced to acknowledge the existence of problems in their lifestyles, which could very likely result in future damaging consequences, they can be forced by courts to at least examine the behaviors and events which brought them into the legal process.


Federal Sentencing Requirements for Repeat DWI Offenders
Congress has addressed the problem of repeat DWI offenders in the Transportation Equity Act for the 21st Century (TEA-21 Restoration Act), which requires States to enact laws governing second and subsequent convictions for DWI within a 5-year period. These laws must require:

  • Driver’s license suspension for repeat impaired drivers;

  • All motor vehicles of repeat impaired drivers must be impounded or immobilized for a specified period during the driver’s license suspension period, or an ignition interlock system must be installed on these motor vehicles for a specified period after the license suspension or revocation is completed;

  • The mandatory assessment of a repeat impaired driver’s degree of alcohol abuse and referral to treatment as appropriate; and

  • The establishment of mandatory minimum sentences for repeat impaired drivers of not less than 5 days of imprisonment or 30 days of community service for a second offense, and of not less than 10 days of imprisonment or 60 days of community service for a third or subsequent offense.3

States that do not have such laws in place will have a portion of their Federal highway construction funds redirected to other State safety activities. Thirty-six States have adopted all of these sentencing requirements; the remaining 14 States have adopted some of these requirements.


State Sentencing Laws for Repeat DWI Offenders
State laws generally address the problem of repeat DWI offenders by:

  • Imposing Licensing Sanctions: Most States suspend or revoke the driver’s license of repeat DWI offenders for a longer period than they do for first-time offenders.

  • Imposing Vehicle Sanctions: Some States impound or immobilize the vehicles of repeat DWI offenders, while other States require an ignition interlock system be installed on the offender’s vehicle which prevents the vehicle from being started if the driver’s blood alcohol concentration is above a pre-determined threshold.

  • Addressing Alcohol Abuse: Most States require that repeat DWI offenders be given an alcohol assessment to determine their degree of alcohol abuse and to compel appropriate treatment.

  • Imposing Mandatory Sentencing: Most States impose a mandatory minimum imprisonment and/or a community service sentence on repeat DWI offenders.


Effectiveness of Traditional Sentencing Sanctions in
Stopping Repeat DWI Offenders

Stopping repeat DWI offenders with traditional sanctions appears to be unlikely. For instance, research shows that there are limits to the effectiveness of jail terms alone. Imprisonment for a long period of time, absent other measures, has been shown to produce either no significant impact4 or ironically, a higher number of future accidents and convictions.5 Very brief jail terms, however, appear to be effective with first-time offenders but it is not known whether this applies to repeat or hard-core offenders.6

The most prevalent sanctions imposed against DWI offenders are incarceration, community service, fines, and license suspension. Although the threat of these sanctions has been an effective deterrent for the general population, it has not always proved to be an effective deterrent for the repeat offender. NHTSA concludes that “[e]nforcement strategies that deter most law-abiding citizens are not as effective with repeat offenders. As a result, despite having histories of convictions and/or crashes, a majority of repeat offenders continue to drive while impaired.”7

Need for Innovative Sentencing Sanctions
Due to the ever-increasing cost of incarceration, the alcoholic tendencies exhibited by most repeat DWI offenders, and the high recidivism rates for these offenders who have received traditional legal sanctions only, some courts have begun to use alternative sanctions, such as staggered sentencing, sentencing circles, ignition interlock devices, electronic monitoring, the Secure Continuous Remote Alcohol Monitor (SCRAM), and victim impact panels. Some courts have established DWI courts, based on the drug court model, to address the unique problems courts face with respect to DWI offenders. Others are using cognitive behavioral therapy to attempt to change offenders’ attitudes about drinking and driving. The studies done to date indicate these alternative sanctions appear to be promising in reducing the recidivism rates for repeat DWI offenders.8 These and other promising innovative sanctions are covered in this Promising Sentencing Practices Compendium.


Assessment of the Repeat DWI Offender in Determining
Appropriate Sanctions

Each person convicted of DWI must receive a proper and thorough assessment of the nature of that person’s alcohol-related problems, and of the risk factors to that person and others. Without an accurate assessment, there is no clear course of action. The need for a thorough and professional assessment intensifies when the court is dealing with a repeat offender.

After considering this assessment, the court can formulate the most appropriate sentencing plan. The sanctions ordered:

  • Should be based on an individualized assessment of the offender;

  • Should be based on a combination of strategies; and

  • Should be imposed over a sufficient time period for meaningful behavior change to occur.

When faced with a repeat DWI offender, NHTSA suggests that judges take the following steps:

  • Properly identify the offender as a repeat offender. Require a thorough records check. Determine the offender’s compliance with previous sentences.

  • Evaluate the offender for alcohol-related problems and risk of recidivism.

  • Act swiftly to prevent further offenses, and punish the offender using sanctions and remedies appropriate for that offender. No single sanctioning strategy is effective for all offenders.

  • Mandate appropriate combinations of sanctions designed to produce behavioral changes.

  • Monitor the offender’s compliance with sanctions.

  • Act swiftly to correct noncompliance.9
2See “Determine Reasons for Repeat Drinking and Driving,” Wiliszowski, C., et al., DOT HS 808 401, pp. vi-vii (May 1996).
3 See 23 U.S.C.§ 164(a)(5).
4 See Joksch, H.C, “The Impact of Severe Penalties on Drinking and Driving,” Washington, DC: AAA Foundation for Traffic Safety (1988) and Ross, H.L., and Klette, H., “Abandonment of Mandatory Jail for Impaired Drivers in Norway and Sweden,” Accident Analysis and Prevention, Vol. 27, No. 2, pps. 151-157 (1995).
5 Homel, R., “Policing and Punishing the Drinking Driver: A Study of General and Specific Deterrence.” New York: Springer Verlag (1988).
6 Compton, R., “Preliminary Analysis of the Effect of Tennessee’s Mandatory Jail Sanction on DWI Recidivism,” In: Research Notes. June. Washington, DC: National Highway Traffic Safety Administration (1986).
7 See outreach/safesobr/ydydyl/repeatOff.html
8 See infra. within each chapter.
9 See “A Guide to Sentencing DUI Offenders,” NHTSA and the National Institute on Alcohol Abuse and Alcoholism (NIAAA) (1996).