Thirty-one states, as of January 2002, have a statute or regulation that provides for additional or more severe sanctions for DWI offenders with a “higher” Blood Alcohol Concentration (BAC), that is, a BAC threshold above the level for a standard DWI charge. In 29 of the 31 high-BAC states, at least some of the high-BAC provisions are statutory; in the other two states, the high-BAC provisions are administrative rules. High-BAC sanctioning systems are based on evidence that DWI offenders with higher BACs are more likely (than DWI offenders with lower BACs) to be involved in a crash and more likely to recidivate. The objective of such systems is to reduce recidivism among this high-risk group of offenders by increasing the certainty and severity of punishment.
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. The high BAC threshold ranges from .15 percent to .20 percent; most commonly, the threshold is either .15 (14 states) or .20 (6 states). Even when focusing solely on first-time offenders, states’ high-BAC sanctioning systems vary widely in terms of complexity, the types and severity of enhanced sanctions, and whether the sanctions are mandatory. 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 “aggravating” circumstance. The types of sanctions for first offenders ages 21 years and older include the following:
Most states report few problems with implementing high-BAC sanctions and believe the sanctions have had a positive impact on the state’s DWI system. However, some states report concerns and/or problems, including: 1) high-BAC sanctions may further complicate an already complicated DWI system; 2) enhanced sanctions may increase the number of alcohol test refusals; 3) courts and/or prosecutors may allow high-BAC offenders to plead to a lower charge and, thus, evade the enhanced penalties; 4) courts may view the high-BAC penalties as onerous and, thus, fail to impose the penalties; and 5) there may be inadequate capacity in jails and/or treatment facility to absorb additional offenders.
Minnesota’s high-BAC sanctioning law was implemented on January 1, 1998. This evaluation of Minnesota’s law represents the first systematic examination of the implementation or effects of a high-BAC sanctioning system. Data on alcohol test results, case dispositions, and recidivism were obtained from the state’s driver license files, and interviews were conducted with approximately 20 experts in Minnesota’s DWI laws and practices.
Minnesota’s system of DWI laws is characterized by substantial pre-conviction administrative license and vehicle sanctions. These sanctions are imposed for “implied consent” violations that involve either failing the alcohol test (per se BAC > .10) or refusing the test. Minnesota’s laws related to test refusals are among the strongest in the nation; a refusal is a criminal offense. Effective January 1, 1998, statutes define a “qualified prior impaired driving incident” as either a prior DWI conviction or a prior DWI-related loss of license. All persons who are convicted of a DWI offense or plead guilty to a reduced offense must submit to an alcohol assessment.
Minnesota’s high-BAC statute was enacted as part of an Omnibus DWI Bill that also increased penalties for repeat offenses. The state’s statutes for impaired driving were restructured, simplified, and strengthened in a recodification that took effect January 1, 2001. This study evaluated Minnesota’s high-BAC law during the years 1998-2000.
Minnesota’s high-BAC threshold, .20, is relatively high, but in other respects the high-BAC law is among the strongest in the nation. Enhanced penalties for a high-BAC offense include more severe pre-conviction administrative sanctions and post-conviction court sanctions that are mandatory, substantial, and applicable to both first and subsequent offenses. The enhanced sanctions for a high-BAC first offender include a mandatory minimum jail sentence, compared to no mandatory minimum sentence for other first offenders; a doubling of the license revocation sanctions; a pre-conviction administrative license plate impoundment; stiffer fines; and other enhanced penalties. High-BAC repeat offenders receive more severe penalties than lower-BAC repeat offenders. For example, a second or greater offense involving a BAC > .20 results in the administrative forfeiture of the vehicle.
Persons arrested for DWI may have an administrative sanction only, a DWI court conviction only, or both an administrative sanction and a DWI court conviction. In this report, a “DWI offense” refers to DWI arrests that resulted in a pre-conviction administrative sanction, a post-conviction court sanction, or both, according to the state’s driver license records. Persons who were arrested for DWI but did not receive either a court conviction or an implied consent driver licenses revocation (an estimated 1% -2% of DWI arrests) were not included in the study.
Data on DWI offenses were examined for 1997, the year prior to the high-BAC law, and for the years 1998-2000. The number of total DWI offenses increased from 32,625 in 1997 to 35,737 in 2000. In all four years, about 29% of total DWI offenses were repeat offenses.
BAC results became available on the driver license record effective January 1, 1998. From 1998 to 2000, the percentage of first offenders with BACs at or above .20 declined from 16.9% to 15.5%, a modest but statistically significant decline (p < .001). The percentage of repeat offenders with BACs at or above .20 declined negligibly from 21.0% to 20.4%.
The test refusal rate in 1997 was 12.7% for first offenses and 22.2% for repeat offenses. The refusal rate for first offenses experienced a gradual and significant decline to 10.5% in 2000; the rate for repeat offenses was essentially unchanged.
Among first offenders with BACs at or above .20 in 1998, 85.6% received enhanced sanctions, and therefore more severe penalties. The enhanced sanctions included an enhanced administrative sanction and enhanced court sanction (65.0%), an enhanced administrative sanction and standard court sanction (9.5%), an enhanced administrative sanction only (7.8%), and an enhanced court sanction only (3.3%). The remaining offenders received a standard administrative sanction and standard court sanction (4.7%), a standard administrative sanction only (less than one percent), or a standard court sanction only (9.1%). The great majority of high-BAC first offenders received more severe case dispositions than offenders with lower BACs. This was due not only to the imposition of enhanced penalties, but also to the fact that the high-BAC offenders were more likely to receive both administrative and court sanctions, rather than only an administrative sanction. For example, in 1998, 8.4% of high-BAC first offenders received the implied consent administrative violation but were not convicted for a DWI-related offense, compared to 20.3% of first offenders with lower BACs.
The proportion of high-BAC first offenders receiving enhanced sanctions declined from 1998 (85.6%) to 1999 (77.6%) and 2000 (78.3%). The percentage of offenders who received both enhanced administrative and enhanced court sanctions also declined, from 65.0% in 1998 to 53.0% in 1999 and 52.6% in 2000. The decline in severity of disposition was particularly acute among first offenders with “borderline” high BACs (.20-.22). For example, the percentage of offenders receiving both enhanced administrative and enhanced court sanctions was 60.1% for offenders with BACs .20-.22 and 72.0% of offenders with BACs > .23 in 1998, but 44.2% of offenders with BACs .20-.22 and 65.4% of offenders with BACs > .23 in 1999.
From 1998 to 2002, the percentage of high-BAC repeat offenders who received enhanced administrative and/or enhanced court sanctions ranged from 96.6% to 98.0%. The dispositions received by high-BAC repeat offenders were more severe than those received by repeat offenders with lower BACs.
The rates of recidivism for offenders arrested in each of the years 1997, 1998, and 1999 were examined. The rates after one year were significantly lower for total first offenders arrested in 1998 than for those arrested in 1997 (6.7% vs. 7.3%) and significantly lower for total repeat offenders arrested in 1998 than for those in 1997 (7.9% vs. 9.0%). The total rates of recidivism for total first and total repeat offenders arrested in 1999 were similar to the rates in 1998.
Because BAC information became available only in 1998, recidivism rates by BAC level could not be examined for the period before the law . First offenders arrested in 1998 (the first year of the law) who had BACs at or above .20 and, thus, were subject to the high-BAC enhanced penalties, had significantly lower rates of recidivism than a “comparison” group of offenders who had BACs of .17-.19 but were not subject to the enhanced penalties. BACs of .17-.19, although lower than BACs of .20 and above, are also relatively “high” and considered indicative of a high-risk offender. For example, the rate of recidivism after one year was 8.0% for offenders with BACs .17-.19 and 6.3% for offenders with BACs at or above .20; the rate after two years was 14.2% for offenders with BACs .17-.19 and 12.6% for high-BAC offenders. These differences were statistically significant, based on the chi-square test (p < .01). For offenders arrested in 1999, after one year following the arrest, the difference in the rates of recidivism among first offenders in the “comparison” group (7.8%) and those with high BACs (6.7%) was marginally significant (p < .05). Recidivism among repeat offenders with high BACs and those with borderline BACs did not differ significantly in 1998 or 1999.
Survival analysis examined the one-year rate of recidivism among first offenders arrested in 1998. The results indicated that, after controlling for the offender’s age and gender, the rate of recidivism was significantly lower for high-BAC offenders than for offenders who refused the alcohol test (p < .01) and offenders with BACs .17-.19 (p < .02), but was not significantly different than the rate among offenders with BACs less than .17. A significant association between the alcohol test result and the rate of recidivism was not detected for 2-year survival models examining recidivism among first offenders arrested in 1998, or in models for first offenders arrested in 1999 and repeat offenders arrested in 1998 and 1999.
Most experts interviewed believed that the high-BAC law had resulted in more severe sanctions for persons with BACs at or above .20. In particular, it was reported that judges and prosecutors have become much more reluctant to allow a high-BAC offender to plead to a non-DWI-related charge, and some reportedly do not allow a high-BAC offender to plead to a standard DWI offense. However, it also was noted that some courts do not impose the statutory minimum criminal sanctions for a high-BAC conviction, particularly the jail sanction for first offenders. However, there was general consensus that the administrative sanctions for DWI are consistently applied. There was considerable skepticism regarding the general or specific deterrent effects of the high-BAC law.
When the law was first implemented, there were concerns that the high-BAC law had added substantial complexity to the state’s already complex DWI laws. It was believed that the recodification of the laws had alleviated some of this complexity.
High-BAC sanctioning systems are viewed as a promising approach for reducing recidivism among “hardcore” impaired drivers.” Many U.S. states have implemented high-BAC sanctioning systems, but the scope and severity of sanctions in these systems vary widely. Minnesota’s high-BAC law has a relatively high BAC threshold (> .20), but also relatively strong mandatory administrative and criminal sanctions. Despite concerns that the rate of alcohol test refusals would increase after the law took effect, the rate declined for first offenders and was unchanged for repeat offenders. This was likely attributable to Minnesota’s strong laws pertaining to test refusals. Minnesota’s law appears to have been successful in increasing the severity of case dispositions for high-BAC offenders, although the severity apparently declined somewhat over time. There also is evidence suggestive of an initial effect on recidivism among high-BAC first offenders. These effects may in part be attributable to the high-BAC law’s reliance on strong administrative sanctions.
1 This summary updates the report: McCartt AT. 2001. Evaluation of Enhanced Sanctions for Higher BACs: Summary of States' Laws. Washington, DC: National Highway Traffic Safety Administration (DOT HS 809 215). This report is available free-of-charge on NHTSA's website www.nhtsa.dot.gov.