Incapacitating the DUI offender; Dealing with the No-Car Problem

T2007 – Seat t le, Washingt on Incapacitating the DUI Offender: Dealing with the No-Car Barrier to Interlocks Robert Voas,1 Paul Marques,1 and Richard Roth2 1 2 Pacific Institute for Research and Impact DWI, Santa Fe, New Mexico, USA Evaluation, Calverton, Maryland, USA ABSTRACT Perhaps the most significant limit on the effectiveness of vehicle interlocks is the failure of current programs to motivate more than a small fraction of eligible offenders to enroll in an interlock program. A major factor in that problem is the ability of offenders to deny that they own a vehicle. This paper discusses a method for providing an alternate control system that, being less desirable for the offender, should increase the proportion of convicted impaired drivers in interlock programs. Driving-while-suspended (DWS) is a major factor in limiting the effectiveness of license revocation on the impaired driving of motorists convicted of driving-under-the-influence (DUI) (DeYoung, Peck, & Helander, 1997). Installing an alcohol interlock on the vehicle of DUI offenders substantially reduces recidivism by 50% or more while it is installed on the vehicle (Willis, Lybrand, & Bellamy, 2004). Offenders resist the installation of such units, however, preferring to risk driving while suspended (Voas, 2001). Consequently, the criminal justice system has been unable to motivate more than about 10% of first and multiple DUI offenders eligible for the interlock to install the units (Voas & Marques, 2003). A major factor in the courts inability to enforce “mandatory” interlock programs has been the offender’s claim not to have a vehicle. New Mexico’s “mandatory” interlock program allows offenders to avoid the interlock if they have no car or state that they will not drive. Although there is some evidence that threatening to use a more severe penalty, such as electronically monitored home confinement, will increase compliance with a court-mandated interlock program by persuading offenders to retain, rather than transfer, the titles to their vehicles and install interlocks (Voas, Blackman, Tippetts, & Marques, 2002). Further, most courts have been unwilling to use severe and more costly penalties, such as home confinement, which runs $10 per day compared to $2.50 per day for interlocks, as an alternative sanction. There is some doubt as to whether state legislatures will support them in doing so (Voas, 2001). Despite the general failure of courts to successfully impose interlocks on driving-under-theinfluence (DUI) offenders, there is a growing interest in the possibility of motivating interlock offenders to install the units through administrative programs operated by state departments of motor vehicles. To date, however, such programs have not evidenced a greater capability to motivate offenders to install the devices. Two types of administrative programs have been implemented: those that allow suspended drivers to operate an interlock vehicle for a portion of their suspension period and those that make installing an interlock a requirement for reinstatement of the driver’s license. The during-suspension programs, with one exception— Quebec, Canada, which has achieved a 25% installation rate—have consistently failed to enlist more than 10% of the offenders eligible for the program. DeYoung, Tashima, and Masten (2004), for example, described the failure of a program allowing second DUI offenders to drive an interlock vehicle in the second year of a 2-year suspension period where less than 5% of eligible offenders was enlisted in the program. Programs requiring a period on the interlock as a condition of reinstatement have only recently been implemented. Some of the programs permit reinstatement without an interlock if the offender delays reinstatement through the required interlock period. Such programs basically amount to a lengthening of the original suspension period, and given the tendency of DUI offenders to delay reinstatement (Tashima & Helander, 1999), it appears unlikely that such programs will significantly increase the proportion of offenders who install interlocks. Some states— Colorado, Florida, and Michigan are examples—have provided in their reinstatement legislation that offenders must spend a period on the interlock to be reinstated no matter how long they wait. This should provide a greater motivation for offenders to install interlocks. There is some initial evidence, reported at this conference, that Florida has achieved a 26% installation rate among offenders qualified to reinstate. A problem with relying on license reinstatement to implement interlock programs is that the highest recidivism rates occur in the period following the initial arrest for DUI. This is illustrated in Figure 1, drawn from a study (Voas, McKnight, & Tippetts, in press) of the recidivism of first DUI offenders in seven large states (Florida, Illinois, Indiana, Iowa, Michigan, Minnesota, and North Carolina). Recidivism rates for suspended offenders are shown in 6-month intervals from the date of arrest. As can be seen, recidivism for the first offenders (light bars) and for second offenders (dark bars) were highest during the first 18 months. This suggests the desirability of requiring interlocks at the point of arrest. New Mexico provides for the issuance of an interlock license to any suspended offender, making it possible for DWI offenders, suspended under the state’s administrative license revocation (ALR) law, to voluntarily install an interlock as soon as the suspension occurs. This is not mandatory, however, and it remains to be determined what percentage of offenders will take advantage of the opportunity. first offenders repeat offenders 6 m 12 o m 18 o m 24 o m 30 o m 36 o m 42 o m 48 o m 54 o m 60 o m 66 o m 72 o m o 13% 12% 11% 10% 9% 8% 7% 6% 5% 4% 3% 2% 1% 0% Figure 1. Recidivism of Suspended First and Second DUI Offenders in 6-Month Intervals from the Date of Arrest (Source: Voas, McKnight, & Tippetts, DWI Offenders’ Failure to Reinstate Driver’s Licenses: Volume I – Summary, in press.) The ALR law that suspends the license before the suspect has been convicted was accepted by the courts because it was not classified as a punishment, such as jail or a fine, but as a method of protecting the public from high-risk drivers, which is within the authority of the motor-vehicle department director. The vehicle interlock, despite its avoidance by offenders, fits within this concept. It is not a punitive sanction (the offender is freer to drive than when fully suspended). It is an “incapacitation” measure that makes it impossible for the individual to operate a vehicle if drinking heavily, but otherwise, it has a minimum affect on the offender’s activities. Its principal objective is harm reduction by reducing the risk to the road-using public, the offender, and the offender’s family. This should, therefore, provide a basis for passing legislation similar to ALR laws that would require an interlock on the vehicle at the time of arrest. The “no-car” barrier to force installation would remain, however. A possible response to that problem is that within a harm-reduction framework, there is an alternative treatment that also protects the public while allowing the offender to drive sober. This can be achieved by enforcing abstinence through electronic monitoring of the blood alcohol concentration (BAC). A number of the electronically monitored home confinement service providers have added BAC monitoring to their basic service of ensuring that the offender is at home when not at work. This combination of location and BAC monitoring service is three to four times as expensive as the interlock program. Further, the home confinement portion of the program, which can limit employment and the offender’s ability to assist in family transportation, is not critical to preventing alcohol-related crashes if the BAC monitoring guarantees abstinence. Currently, interlock companies are providing an incomplete service because, if the offender does not have a car, they can provide no alternative. Action to protect the public devolves back to the court and, ultimately, to a company in another field (home confinement or house arrest) if recidivism reductions greater than those provided by suspension alone are to be achieved. The system could be substantially strengthened if interlock companies could become “full service” providers by selling a single service with two alternatives: (1) the interlock for those who have cars and choose to drive and accept the monitoring of their drinking and driving or (b) a personal BAC monitoring program that ensures abstinence for those without cars or who refuse the interlock to monitor their drinking and driving. How could interlock companies provide the abstinence program? One method would be to establish a business relationship with one of the current electronic home confinement providers who have developed BAC testing as part of their service. The current house arrest systems, however, are substantially more expensive than the interlock program, so the combination of these technologies would raise the cost of the combined program. Further, the confinement feature is not essential for ensuring sober driving if the BAC monitoring is adequate. A more promising opportunity would seem to be provided by the technologies currently being developed by several of the interlock companies to verify that the offender is the individual providing the interlock sample through photo or voice recognition or fingerprint methods. For example, the Smart Start™ Company demonstrated a prototype of a photo identification technology at this interlock meeting. If manufacturer’s could produce portable versions of these devices that verified identity, recorded BAC and time, and were tamper resistant, offenders could be required to meet a reasonably frequent testing schedule (perhaps every 4 hours) that would make undetected drinking highly unlikely. Such devices would be brought to the service providers for downloading and inspection on a regular schedule, just as is required for interlocks. If interlock companies were to develop the capacity to monitor BACs, they could offer a “full service” program that allowed the offender to select between the interlock and BAC monitoring. Presumably, laws providing for such programs would provide for the monitoring to cover the same period for either alternative. The costs of such a program should not be much greater than current interlock programs. Reports to court or motor vehicle department authorities for each option would be similar. The interlock has been shown to generate circa 5 breath tests a day (Marques, Voas, Tippetts, & Beirness, 1999), and the monitoring program would probably need to generate a similar number of test results to ensure abstinence. BAC measures from either source could be used by probation officers or treatment providers to follow the progress of offenders in controlling drinking and to make decisions about when the offenders might come off the program and have their operators permits restored (Marques, Tippetts, Voas, & Beirness, 2001). The rules for reporting evidence of attempts to circumvent the devices would be similar for both the interlock and abstinence programs. Although the court should probably accept continuing offenders in an interlock program, even if they are generating frequent high BAC tests as such results would lock out the ignition and prevent driving, positive BAC tests occurring for those who choose abstinence would need to be more severely treated. The full-service system should be welcomed by the courts facing a state requirement for mandating interlocks for all DUI offenders because it would deal with the no-vehicle problem. It would also avoid criticism that the courts were failing to carry out a legislative mandate. Further, it could reduce the burden on the probation departments as it could pass the time required to interview and counsel the offender to the private provider. Finally, it would provide frequent reports on drinking that could be used to determine whether more intensive supervision or treatment of the offender was required. Although the full-service system would be likely to increase interlock use by the courts, its major benefit might be the provision of a control system that could be implemented through the use of administrative rather than criminal procedures. The alternative shown to be effective in motivating offenders to accept the interlock in a court setting was electronic home confinement (Voas et al., 2002). This type of confinement grows out of the field of community corrections. It is therefore probably too close to an extension of jail not to be classified as a criminal sanction that requires due process by the courts and is barred by the Constitution from being imposed through administrative procedures. Enforcing abstinence shares the objective and intent of the interlock and the already-accepted ALR laws as a method for protecting the public with a minimum of constraint on the suspected offenders whose offenses have not been adjudicated. Whether this is the case awaits a legal test. If accepted as measures that can be imposed administratively, there will still be problems to overcome. Because both interlocks and BAC monitoring are likely to be considered more burdensome than full suspension, even though they are arguably less restrictive on the offender’s behavior, the administrative imposition of interlocks or BAC monitoring is likely to increase the number of hearings requested and could slow down the process of imposing ALR on arrested offenders. The full-service system should be relatively easy to sell to the public because it directly prevents the dangerous behavior without otherwise affecting innocent family members or the job status of the offender. The full-service program could become the standard administrative response to a DUI—that is, arrest with a special license issued indicating in which program the offender is participating. Police officers would have probable cause to check for an interlock on vehicles driven by offenders with an “I” for interlock license and to breath-test offenders with an “A” for abstinence monitoring license. The breath test for “A” license holders would require a zero result. A basic limitation of the interlock and the BAC monitoring systems is that they both incapacitate. In contrast to treatment programs that may produce longer-term behavior change, incapacitation systems (jail, home confinement, interlocks, and abstinence monitoring) generally only control behavior while the countermeasure is in place. Research has generally indicated that there is very little carryover after the barrier to action has been removed. Thus, both interlock and BAC monitoring require coordination with a treatment program to produce a longer-term behavior change. REFERENCES DeYoung, D. J., Peck, R. C., & Helander, C. J. (1997). Estimating the exposure and fatal crash rates of suspended/revoked and unlicensed drivers in California. Accident Analysis and Prevention, 29(1), 17-23. DeYoung, D. J., Tashima, H. N., & Masten, A. S. (2004, September). An Evaluation of the Effectiveness of Ignition Interlock in California: Report to the Legislature of the State of California (CAL-DMV-RSS-04-210/AL0357). Sacramento, CA: California Department of Motor Vehicles. Marques, P. R., Tippetts, A. S., Voas, R. B., & Beirness, D. J. (2001). Predicting repeat DUI offenses with the alcohol interlock recorder. Accident Analysis and Prevention, 33(5), 609-619. Marques, P. R., Voas, R. B., Tippetts, A. S., & Beirness, D. J. (1999). Behavioral monitoring of DUI offenders with the alcohol ignition interlock recorder. Addiction, 94(12), 1861-1870. Tashima, H. N., & Helander, C. J. (1999, January). 1999 annual report of the California DUI Management Information System (CAL-DMV-RSS-99-179). Sacramento, CA: California Department of Motor Vehicles, Research and Development Section. Voas, R. B. (2001). Have the courts and the motor vehicle departments adequate power to control the hard-core drunk driver? Addiction, 96(12), 1701-1707. Voas, R. B., Blackman, K. O., Tippetts, A. S., & Marques, P. R. (2002). Evaluation of a program to motivate impaired driving offenders to install ignition interlocks. Accident Analysis and Prevention, 34(4), 449-455. Voas, R. B., & Marques, P. R. (2003). Commentary: Barriers to interlock implementation. Traffic Injury Prevention, 4(3), 183-187. Willis, C., Lybrand, S., & Bellamy, N. (2004). Alcohol ignition interlock programmes for reducing drink driving recidivism. Cochran Database of Systematic Reviews, 4, CD004168.