As of January 2002, 31 states were identified as having a statute, regulation, or rule that provides differential sanctions for persons with a higher BAC (Appendix A). Illinois and Virginia have only administrative rules that provide for longer, more intensive education/treatment of offenders with BACs at or above .15 or .20, respectively. For all other 29 states, at least some of the high-BAC provisions are statutory.
Most high-BAC statutes have been enacted since 1990. Thirteen states have implemented high-BAC laws since 1998, and eight additional states have recently strengthened an existing high-BAC statute. Higher levels of publicity about the enactment of the high-BAC sanctions were reported by states with more extensive or more recent sanctions, states where other statutory changes were also implemented, and states where the high-BAC sanctions included jail or vehicle-based sanctions. The availability of 410 funding for high-BAC sanctions did not appear to be the primary motivation for the states that have recently enacted or strengthened a high-BAC statute.
Given the considerable differences in states’ DWI laws, it is not surprising that state provisions for high-BAC offenders also vary widely. Some high-BAC statutes impose additional or enhanced penalties that are relatively clear-cut and limited. Other high-BAC statutes are complex and integrated into the full range of a state’s DWI laws. In all states, high-BAC offenders may still be able to avoid the enhanced sanctions by, for example, pleading guilty to a lesser charge or completing a “deferred judgment” program. Also in all states, courts and prosecutors have considerable discretion in determining case adjudications and sanctions, even if there are statutory limitations on charge reductions or mandatory statutory penalties for DWI offenses.
The high BAC threshold in the 31 states ranges from .15 percent to .20 percent; within a given state, a different threshold may apply to different sanctions. The minimum threshold is at or above .15 percent in 14 states, .16 percent in five states, .17 percent in three states, .18 percent in three states, and .20 percent in six states. In some states the mean BAC for DWI offenders was selected as the threshold, and in other states the threshold is double the per se BAC level for a standard offense. In still other states, the threshold represented a compromise between a lower threshold advocated by the highway safety office and a higher BAC preferred by other groups. Following the lowering of the per se BAC level from .10 to .08 in their states, New Hampshire and Arizona lowered the high-BAC threshold from .20 to .16 and from .18 to .15, respectively.
In a few states, the new high-BAC statute became part of a “three-tiered” BAC system of graduated penalties. For example, in July 2000, Rhode Island established different penalties associated with each of the following three BAC levels: at or above .08 percent but less than .10 percent, at or above .10 percent but less than .15 percent, and at or above .15 percent.
The number of states relying on a high-BAC program to qualify for Section 410 program funds4 was 13 in federal fiscal year 1999, 16 in federal fiscal year 2000, and 15 in federal fiscal year 2001. Other states included in this study had high-BAC programs, but did not rely on these programs to qualify for 410 incentive grant funding. There are various reasons for this. Some states may have had a high-BAC program that met the 410 requirements, but the state was able to qualify for a grant based on other laws and programs. Some states may have had a high-BAC program that met the 410 requirements, but the state did not apply for a 410 grant at all (perhaps because the state did not meet a sufficient number of the other requirements). Other states may have had a high-BAC program that did not meet the 410 requirements. For example, the state’s program may have been discretionary rather than mandatory, or it may have applied only to repeat offenders.
The following discussion focuses on states’ high-BAC penalties for first-time offenders over 21 years of age, as summarized in Appendix A. The high-BAC penalties are contrasted to the penalties imposed for a first-time standard DWI offense, that is, a DWI offense not involving an extenuating circumstance (for example, involvement in an injury crash) that carries special penalties. Appendix A summarizes only the high-BAC penalties that differ from the penalties for a standard first-time offense. Thus, if a state’s driver license sanctions are the same for high-BAC offenders and other offenders, driver license sanctions are not noted.
Even when focusing solely on first-time offenders, states’ high-BAC sanctions run the gamut in terms of complexity, the types and severity of enhanced sanctions, whether the sanctions are mandatory, and whether the sanctions are court-imposed or administratively imposed. Some states have adopted high-BAC sanctions for a first offense that are comparable to those for a second DWI offense, for a BAC test refusal, or for a DWI offense with another type of “aggravating” circumstance. Several states have created a new, more serious offense for offenders with high BACs, for example, Driving Under the Extreme Influence, or Aggravated Driving While Intoxicated.
As detailed in Appendix A, the types of sanctions for high-BAC adult (21 years or older) first-time offenders include the following:
Most states reported few problems with implementing high-BAC sanctions and believed the sanctions had had a positive impact on the state’s DWI system. However, some states reported concerns and/or problems. The most common concern was that the imposition of high-BAC sanctions might increase the number of alcohol test refusals if the state’s penalties for refusal were insufficiently strong. At least one state, Maine, increased the penalties for test refusals when a high-BAC statute was enacted. After the high-BAC law was implemented in Maine, the state reported that of the 11,000 DWI arrests in 1998, only 585 persons refused the BAC test. However, in several other states where the rate of refusals is one-third or higher, officials expressed concerns that this rate would increase as a result of the high-BAC sanctions.
The following additional concerns were noted by states: 1) high-BAC sanctions may complicate an already complicated DWI system; 2) courts and/or prosecutors may allow high-BAC offenders to plead to a lower charge (directly or indirectly) and, thus, evade the enhanced penalties; 3) courts may view the high-BAC penalties as onerous and, thus, fail to impose the penalties; 4) and the limited availability of treatment programs and jail capacity in some areas may hinder the effectiveness of these sanctions.
States noted the considerable obstacles to evaluating the effects of high-BAC sanctions. In particular, states’ historical case records for DWI offenses generally have not included information on the BAC at the time of the arrest. In the process of conducting the review of states’ high-BAC sanctioning systems, only one study of the relationship between BAC and the severity of penalties was located. The study, conducted by the California Department of Motor Vehicles (Tashima, 1986), examined the relationship between the severity of court sanctions and the BAC level and licensing status. The study was prompted by the state’s 1985 law that provided that courts may consider a BAC of .20 or higher as a special factor in sentencing DWI offenders. Based on the DWI offenders with reported BAC levels (43 percent of all offenders), first-time offenders with higher BACs received a jail sanction more frequently than did those with lower BACs. Sanctions given to most second offenders did not vary with BAC level.
In discussions with states with high-BAC sanctioning systems, none reported that they had undertaken a systematic study of the implementation or the effects of high-BAC sanctions. As noted earlier, the second phase of this study involved a process and outcome evaluation of the high-BAC sanctioning system in Minnesota. The following chapter presents the evaluation of Minnesota’s high-BAC statute.
4 States could apply for Section 410 program funds under five of seven criteria.