What are judges and prosecutors concerned with on a DWI? One of their main concerns is recidivism. Contrary to popular belief, the average recidivism rate for a first time DWI is approximately 21%[i]. Most people who get arrested for a first time DWI simply made a mistake. They will never be back in the system. In fact, most are going to punish themselves far greater than what a court or prosecutor could do to them. Will their alcohol BAC (breath or blood alcohol concentration) on their DWI predict their propensity to reoffend? The answer is simply “no.” This was determined in a study published in 2013 in Criminology and Public Policy[ii]. So although the interlock industry has managed to pass laws across the nation (including in Texas) where some first time DWIs will be required to install an ignition interlock system on their car, this is overreaching for the vast majority of first time offenders. In Texas, one is required as a condition of probation (and many judges require it as a condition of bond) to install one of these devices (or an alternative if they are not driving) if their purported alcohol level is at or above .15. This assumes that every first time DWI offender has a substance abuse problem based on their fortuitous alcohol level reflected on their arrest.
What about the soccer mom who got carried away with one too many margaritas who will never get arrested again? The hard working young adult who let things slip out of hand out of character at a bachelor’s party? Passing laws on the basis of one’s alcohol level does not legitimately serve the purpose of addressing their propensity to reoffend. The vast majority of first time offenders, despite their alcohol level, will never be arrested for DWI again. As a matter of fact, requiring a person to install an interlock does not affect their future lifestyle choices. A North Carolina study proved that “interlock programs may control a driver’s behavior while under the program auspices (condition of an occupational license) but may not serve to change drinking behavior over time[iii]. Technological devices cost money, require monthly calibrations, and time. To blindly require everyone to install one does not equate. So what is the best way for a judge to determine a person’s recidivism potential and fair punishment?
According to a California study, this involves screening and carefully evaluating personality factors[iv]. Psychological attributes of addictive personality disorders, coping mechanisms, and impulse control are far more important tools in assessing fair sentencing recommendations than “office policies” that most prosecutors’ offices employ. DWI is not a one size fits all offense. Unlike crimes of moral turpitude, most people do not intentionally go out to commit harm. The defense lawyer must understand these principles to properly communicate and negotiate what is fair for their client. The jail punishment range for a first time DWI in Texas ranges from 0 to 3 days (depending on alcohol level). The legislature saw fit to construct a fair punishment for a person making a mistake to get back on track with their life and learn a lesson.
For judges and prosecutors who believe that a person must be on probation to receive substance abuse counseling and hear from MADD victims, their good intentions are misplaced, not everyone needs this. Once again, California studied the recidivism rates of those accused of DWI who attended a MADD Victim Impact panel (where victims share their stories) and found “no differences were observed in recidivism rates between the VIP group and either the no-show group or the two control groups[v]. So bottom line, although it may make judges and prosecutors “feel good” going through the motions of pre-ordained punishments with little wiggle room as office policies and treating everyone the same, this is not in line with what is fair or logical. Juries seem to innately know this when assessing punishment.
[i] S C Lapham, BJ Skipper, G L Simpson, “A Prospective Study of the Utility of Standardized Instruments in Predicting Recidivism Among First DWI Offenders”, Journal of Studies on Alcohol and Drugs, 58(5), 524-530 (1997).
[ii] Dugosh, Karen L.; Festinger, David S.; Marlowe, Douglas B., Overview of: “Moving Beyong BAC in DUI: Identifying Who is at Risk of Recidivating,” Criminology & Public Policy, 12(2), 179 (2013)
[iii] Popkin, Carol Lederhaus, et al, “An Evaluation of the Effectiveness of Interlock Systems in Preventing DWI Recidivism Among Second-Time DWI Offender,” Cologne: Verlag TUV Rheinland (1993), Alcohol, Drugs & Traffic Safety T92 Ed.
[iv] S C Lapham, et al., supra note 1
[v] Shinar, D., Compton R P, “Victim Impact Panels: Their Impact on DWI Recidivism”, Alcohol, Drugs & Driving, 11, 73-334 (1995).