For Drunk Driving, Is Prison Always The Answer?

On 10/07/2008, the Journal Sentinel reviewed all Milwaukee County criminal convictions for fifth-offense operating while intoxicated (aka drunk driving or OWI) from 1999 through 2006, resulting in a detailed analysis of 161 cases. Just 70 defendants, or 43%, went to prison, receiving an average sentence of 18 months. Seventeen of those had an opportunity to shave substantial time off their sentences by completing boot camp or a treatment program. At least one defendant got out early after petitioning the judge. More defendants were sentenced to probation than prison. Although 70 of the 71 who got probation terms served between three and 12 months in the Milwaukee County House of Correction, about half were allowed to spend their days in the community on work release. Twenty more defendants received jail sentences, 11 with work-release privileges. The blood-alcohol level of a drunken driver was consistently cited as an aggravating factor by sentencing judges.

My own research through a CCAP analysis showed that in other counties sentences vary widely:

Wisconsin Drunk Driving Penalties

COUNTY	JAIL	PRISON	PROBATION	CONDITION TIME
Dane	7.60%	28.74 %	61.69 %	61.30 %
Eau Claire	0 %	13.30 %	86.67 %	86.67 %
Brown	5.93 %	55.93 %	38.14 %	37.29 %
Waukesha	2.13 %	71.99 %	25.53 %	24.82 %

The entire drift of the article is that judges are wimps on drunk drivers. I would bet any amount that when the legislature comes back in January, they will make a 4th offense a felony and up the mandatory minimums on all offenses. It’s also likely they will make a 1st offense criminal - it is currently a civil forfeiture.

What’s wrong with this? It completely adopts the mind-set that prison/jail is the answer to combating drunk driving. Amazingly no one really notices that this MADDness that began in the 80's has failed utterly to stem drunk driving. Much like the War on Drugs - which has likewise failed to stem drug use - increasingly tough penalties on drunk driver’s has virtually no deterrent effect. We have recently begun to unwind the drug policies with new drug courts designed to facilitate treatment rather than merely punishment. When the media whips up hysteria like this way too long Journal-Sentinel series does, it is just stifling any move toward a real solution.

Wisconsin Drunk Driving Laws

On the heels of a national survey that puts the great state of Wisconsin in the not-so-stately top spot for driving drunk, I can only imagine what the reaction will be.

First, interest groups and the state legislatures will call for a crack down on drunk driving, sending out deputies to patrol the highways and make more arrests. Second, the legislature will be pressured to increase the penalties on drunk driving to discourage the behavior.

Somehow, the public will be sold on the program that these remedies will fix the problem.

I just do not have that much confidence in those fixes, I’m sorry. First of all, drunk driving is in itself a very subjective offense. For the purposes of determining how drunk we are to drive we are all treated as if we had the same body, i.e. the same metabolism, the same liver, the same blood. This is utterly ridiculous.

Measuring all people by the same standard when we all have a unique DNA is like having a blood transfusion and not being concerned that the donor is Type A and the recipient is Type O. It’s just not done. And yet we are led to believe that despite each person having our own unique physical body, we should all be treated as if we are all identical twins.

If we are going to get serious about drunk driving in this state, we need to look at how we handle these cases in the court system and how we make assessments about intoxication in the field. Blind increases in jail time have never proven to discourage people from behaviors. Already in this state, the number of people who offend a second time is far less than people who offend the first time. In essence, the threat of the minimal jail time already in place is enough to discourage the vast majority of first time offenders. Will increased jail for second offenders really stop any more people than the current system already does?

People who are risk loving and irresponsible will always be with us in our world and scarily on our roads. No amount of jail is ever going to discourage them from getting on the road. We are never going to get all the most hazardous people off the road and that is something that we have to understand as a society. We need to look at how we assess the needs of drunk drivers and make determinations whether punishment or warnings are appropriate.

On first offenses, apparently warnings are sufficient incentive to keep people from repeating. Maybe someone does not understand how much liquor their system can handle before they end up slightly over the limit.. Being stopped by the police and ticketed seems to scare them into being more conscious of how much they have to drink before they drive. Is jail really an appropriate remedy in these situations where apparently a warning works quite well.

Thinking about it from another perspective, do we want to tie up the court system trying 1st offense intoxicated driving cases to twelve person juries? Is that a good use of our resources when the current system seems to discourage the behavior sufficiently?



See also Wisconsin Drunk Driving Laws

Determining Blood Alcohol Levels

What the State must prove for an OWI conviction

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T. J. Perlick-Molinari, Birdsall Law Offices, S.C.
135 W. Wells St., Ste 214, Milwaukee, WI 53203
414.831.5465 - www.birdsall-law.com

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Drunk Driving Enforcement Taken To Extremes of Insanity

When you are a drunk driving defense attorney in the State of Wisconsin you get attention at parties. I think the reasons for this are obvious.

That being said, I hear people’s stories all the time about how they get pulled over by law enforcement and how it was the most humiliating day of their lives. One story the other night really caught my attention. I was talking with one of my friends about an incident he recalled several years ago when he was in college. He told me that he spent a night of drinking with his friends at a local establishment and had one of his friends drop him off at his car in a Denny’s parking lot. Realizing that there was no way he was getting his car home that night, he simply sat down in the driver’s seat, locked the doors, reclined his chair, and checked out for the night. An hour later, he was awoken by taps on his window. Guess who? The local police were making an inquiry as to why he was in the Denny’s parking lot asleep in his car. Reasonable enough. In all honesty if I saw a car in a Denny’s parking lot in the middle of the night after the restaurant was closed, I would probably just leave the guy to his dreams and set up a candid camera to see how he reacted in the morning! But I suppose the local police had to go and check the situation out since they basically had nothing else to do in a small Wisconsin town.

What happened next was a shameful display of poor discretion and over zealous policing. After not having observed the man in the car operate his vehicle in any way, nor make any determination that the vehicle had been operated at all recently, the police demanded my friend step out of his vehicle and perform a three-ringed circus for them (the standardized field sobriety tests). Because he was still very groggy from his long night, he failed the tests and was arrested. For what you may ask? Parking illegally, open intoxicant, loitering. No, DRUNK DRIVING! I am not kidding.

For doing the right thing and not driving home, my friend was arrested, humiliated, and amazingly enough, convicted! When he told me this story, I was shocked. First, I was shocked that he was arrested, and second and more appallingly that an attorney that reviewed the case thought he should plead guilty. Are you kidding me? Any attorney in Wisconsin that knows the law knows that you need to operate the vehicle to subject yourself to prosecution. My friend sat in his car. Last I checked in any dictionary or law book that is not operating. Have we really come this far in our society that people who make the right decision about drinking and driving are not given the dignity of having anyone respect that responsible decision? I think it is a shame. I still hope I can reopen the case and bring these police imposter's into court and grill them.

In the meantime, my friend was out several thousand dollars in fines, fees, and insurance that he will never get back. And what did he learn from this experience?

Responsibility does not pay.

Theodore J. “TJ” Perlick-Molinari Attorney