NHTSA/NCJA Criminal Justice Summit on Impaired Driving

 Solutions for the Prosecution Phase

TIRF study DWI System Improvements for Dealing with Hard Core Drinking Drivers: Prosecution, provided a starting point for the identification of problems and solutions for the prosecution phase of the handling of impaired driving offenders. These research findings were based on information taken primarily from state and local prosecutors. In addition the research results from a study funded by the AAA Foundation for Traffic Safety, Drunk Driving: Seeking Additional Solutions, provided findings which support the need to find comprehensive solutions for the entire criminal justice system in order to effect change and make improvements.

Research Identified Problems And Solutions, (TIRF, 2002)

Priority Areas

Lack of resources and a need to reduce prosecutor caseloads are significant system challenges at the prosecution phase.  Increased training for DWI prosecutors also emerged as one of the more important requirements for increasing conviction rates of hard core DWI offenders. Inadequate and inconsistent penalties for DWI offenders have allowed many to escape meaningful punishment. Motions and continuances were identified as potential problem areas especially as repeat offenders find ways to delay proceedings in order to avoid conviction. Test refusals also present obstacles to successful prosecution of DWI offenders, especially repeat offenders who are familiar with the system and have found that test refusals provide another way to slip through the cracks in the system.

Drunk Driving: A Roadmap for Progress Jim Hedlund, Ph.D., highlighted recommendations from a report he co-authored for the American Automobile Association Foundation for Traffic Safety (Drunk Driving: Seeking Additional Solutions, available online at http://www.aaafoundation.org/home).  He maintained that the best way to progress in the fight against impaired driving is to address the system as a whole, rather than individual aspects of it that may need attention.   He identified a system of deterrence as the most promising strategy for near-term progress in reducing DWI incidents.  Other DWI control strategies, such as education, prevention and treatment, do not work well in isolation and have shown only limited results, according to his research.  A DWI system that works must be focused on deterrence and include laws, enforcement, prosecution, adjudication and sentencing, monitoring of offenders, assessment and treatment of alcohol problems, publicizing of efforts, adequate resources and strong infrastructure.  He acknowledged most of the weaknesses addressed in prior research and at the Summit, such as complex laws, low enforcement levels and arrest rates, and plea bargains and diversion tactics that allow many repeat offenders to escape punishment.  Hedlund said that the entire system must be strengthened, but that simple solutions won't work.  Maintaining that states have the lead, he cited better information sharing, management and increased funding as three important strategies for addressing systemic problems.   Better information sharing entails improvements in the system design and system operations.  Management should be improved both in the overall system and the individual components of the system.  Funding should come from federal, state and local levels.

Resources

Human resources are needed to increase efficiency in the prosecution of cases, more so than actual funding in many cases. More creative means of directing more resources toward DWI prosecution need to be found.

Recommended Actions

• Reallocate system resources and conduct better system planning.  Such issues as jail overcrowding and the value of using community-based treatment options vs. corrections-based treatment programs need to be addressed in order to save system resources.
• Improve access to the latest technology to expedite case processing.
• Seek peer assistance, for example from state prosecutor associations.
• Use law students, under the guidance of the prosecutor, to handle time- consuming tasks, such as victim notification, contacting law enforcement, and performing paralegal tasks.
• Provide incentives to retain quality DWI prosecutors and public defenders such as loan forgiveness programs.
• Define priorities for incarceration and explore community treatment options and alternative sentencing programs to help reduce recidivism among repeat offenders and alleviate system costs.
• Identify best practices, such as day-reporting centers, research on what works, and drug courts.

Training

DWI prosecution is not a high enough priority in most prosecutor offices, resulting in less experienced prosecutors handling DWI cases.  This fact underscored the need for improved training of DWI prosecutors to handle DWI cases where "system savvy" repeat offenders are involved. Prosecutor training should also involve law enforcement and other criminal justice system components.

Recommended Actions

• Identify national standards for prosecutor training.
• Increase the minimum number of hours of training regarding DWI prosecution.
• Make sure that training is provided on HGN and SFST.
• Keep the content of training current especially as new laws are implemented or statutes are changed.
• Provide cross-disciplinary training of prosecutors and law enforcement and include toxicologists, judges, and defense lawyers. 
• Gain leadership support for training to improve its availability.
• Make training hands-on and make use of opportunities for ride-a-longs and mock trials.
• Use more web-based and CD-ROM training.
• Create state level mentoring programs for new prosecutors.
• Create a state prosecutor coordinator position in every state to handle training, research and expert witness issues.

Inconsistent or Inadequate Penalties

Model laws should be developed, which set guidelines for penalties, particularly with regard to repeat DWI offenders. Better sharing of information between jurisdictions and states regarding prior convictions is needed. Graduated penalties for repeat offenders should be implemented.

Recommended Actions

• Develop sentencing standards and guidelines, with stronger graduated penalties for repeat offenders. 
• Develop model state laws, with recommended sentences.  Have judges establish the guidelines rather than legislators.
• Develop uniformity across the states in the recording of prior convictions.
• Require plea agreements to a lessor offense to be made part of the record and count as a prior DWI conviction.
• Increase and improve communication between the states on prior convictions.
• Increase communication between felony and misdemeanor courts regarding DWI convictions.
• Create a federal database for DWI to capture out-of-state and multi-jurisdictional offenses.

Test Refusal

The ability to refuse to take a preliminary breath test or chemical blood or breath alcohol content test is a major loophole in the DWI system that allows many DWI offenders to escape sanctions. The benefits of test refusal must be taken away, primarily through legislation. 

Recommended Actions

• Make test refusal an additional criminal charge.
• Make test refusals admissible in court.
• Use back-up evidence to support refusal cases such as video cameras.
• Use telephonic search warrants to take blood.
• Make license suspension more stringent for refusals.
• Educate the general public on what 0.08 BAC really means and what penalties are imposed when they refuse to be tested.

Prosecutor Caseload

High DWI caseloads affect the ability of prosecutors to obtain convictions for DWI defendants.

Recommended Actions

• Seek financial and other resources at the county and city level.
• Train inexperienced prosecutors to expedite case processing time and to help reduce backlogs.
• Solicit quality cases from law enforcement officers to make the cases easier to plea to and prosecute.
• Utilize specialized DWI courts, where more experienced prosecutors are utilized.
• Make resources available from the federal government to assist with impaired driving prosecutions.

Motions and Continuances

Excessive use of motions and continuances serve to delay DWI proceedings and thus reduce the chances of conviction.

Recommended Actions

• Prosecutor offices should prioritize cases.
• Prosecutors should make use of administrative courts when possible.
• Judges need to be better educated and trained to adjudicate DWI cases and limit "delay tactics."
• Judges need to find ways to have greater control of the court schedule and evaluate case management.

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