Monday, August 16, 2010

Reportage hyping DWI sidesteps biggest enforcement issues

The Dallas News is running a series of stories about criminal prosecutions in DWI death cases, the first article of which opened with this provocative but misleading statement:
You drink. You drive. You go to jail.

That's what the billboards say.

But in Dallas County, a leader in alcohol-fueled traffic deaths, you may spend little or no time behind bars – even if you kill someone. 
Note, the ads don't say, "You drink, you drive, you go to prison," so from the get-go it's clear that whoever wrote the lede was stretching to find (or generate) controversy. The News provides no evidence that police don't arrest drivers for intoxication manslaughter, so the claim that they spend "little or no time behind bars" is blatantly misleading. Indeed, further down in the story we learn that for "those drivers who are prosecuted and get probation, the only time they will spend behind bars is between 120 and 180 days in county jail."

The ads referenced neither say nor imply that every defendant will go to prison, and they refer to routine DWIs, not only death cases. Their message is the same one as the adage under Grits' title at the top of this page: "You might beat the rap but you won't beat the ride" for the Class B misdemeanor of driving while intoxicated. The billboards are NOT claiming everyone arrested for DWI will be convicted, nor that every alcohol related auto death will generate a prison sentences, particularly when there are mitigating factors or the harsher sentence is opposed by the victims' family.

By framing the issue this way, the writers set themselves up to supposedly uncover government hypocrisy or wrongdoing, but so far the articles haven't made that case persuasively. Instead, reporters found local prosecutors and judges defending their decisions on the grounds that they improve public safety.
Backers of tougher sentencing often are frustrated by the emphasis on treatment. Rehabilitation is laudable, they say, but offenders also should lose their liberty. Doing so might deter other drunken drivers.

Prosecutors, defense attorneys and judges say probation makes sense because intoxication manslaughter cases are incredibly difficult to prosecute.

Also, probationers are forced to get treatment they probably wouldn't receive in prison, and rehabilitation is less costly to taxpayers than punishment.

Most important, they say, a combination of treatment and probation-ordered rehabilitation makes the public safer.

"The reason it doesn't work to lock them up is, eventually they get out, and most times sooner rather than later," state District Judge Tracy Holmes said. "And when they get out, their addiction has progressed, and so they are more dangerous."

Prosecutors would like to send more intoxication manslaughter defendants to prison, but say the lack of substance abuse programs in Texas prisons forces them to pick between punishment and probation with rehabilitation. 
If harsh sentences "might deter" drunk drivers, why haven't they already done so for those with multiple past arrests? More than 5,500 prisoners are incarcerated at TDCJ right now for their third DWI or more. Not infrequently one even sees life sentences imposed for repeat DWI offenders. When somebody is arrested for the ninth time for DWI, that means the justice system has miserably failed the first eight times it intervened. Because of the volume of DWI cases, incapacitation is not a cost-effective, long-term means to solve the problem and it usually fails to address underlying risk factors before releasing the offender back to the streets.

Strangely, so far the series has failed to address the most serious crisis facing DWI enforcement in Texas today: Laws have become so tough that many defendants in non-death cases will no longer subject themselves to probation - which requires taking drug tests, participating in treatment and changing their lifestyle - instead choosing to sit out their time in jail to avoid changing their behavior. That's ironic because all the "tuff on crime" buffs  quoted in these articles bellyache constantly that more people don't do enough "hard" jail time, while many offenders would prefer that to strong probation that these articles portray as potentially too soft.

I'm also surprised not to see the Driver Responsibility surcharge featured prominently in these discussions. At a hearing of the Senate Criminal Justice Committee last month, David Hodges, Judicial Liaison for the Texas Center for the Judiciary, testified that the Driver Responsibility surcharge had caused DWI conviction rates to decline statewide in recent years relative to the number arrests. Citing Department of Public Safety data, Hodges said that in 2005 roughly 2/3 of DWI arrests resulted in conviction, but by 2009 that number had declined to 44%. Over the same period (2005-2009), he said, according to the Office of Court Administration, the number of pending, undisposed DWI cases increased from 100,000 to 125,000.

Most of that increase he attributed to more defendants taking cases to trial and more prosecutors, whose duty is to seek justice, not convictions, agreeing to plea down to lesser charges in order to avoid imposition of the unjust surcharge, which many defendants simply couldn't afford.

Bottom line, said Hodges, since the Driver Responsibility surcharge was implemented, DWI conviction rates have decreased every year, dismissal rates have increased every year, and the backlog of pending, undisposed cases has gone up 25%. Further, Hodges said that “tens of thousands of cases” per year were being informally reduced from DWI to lesser charges like reckless driving, public intoxication, blocking the highway, etc., to avoid having to apply the surcharge. The News stories mention with derision the practice of plea bargaining to these lesser charges, but failed to discuss the Driver Responsibility surcharge as a causal factor.

A staff editorial laments that "the cycle of blame, overreaction and unintended consequences keeps spinning," but this series' main purpose so far seems to be to contribute to that cycle by fomenting outrage where it's undeserved. From my perspective, anyway, so far I'm afraid these stories have merely elaborated rather than enlightened.


Anonymous said...

There’s no real answer to this problem, people are going to drink and drive, the truth is the vast majority never get caught.

The government could put a large tax on alcohol strictly for use to subsidize the taxi industry. They could equip specialized taxies with the ability to tow a vehicle as well. The taxi industry is as happy as they can be and park outside the bars just like they do the airports, turn in their vouchers and get paid. They will be the watchdogs as well.

It sounds crazy but so does the current situation. The only possible answer is to take driving out of the scenario.

The lawyers wouldn’t care much for this idea but it would actually work well toward preventive.

Instead of the criminal justice system spending tax dollars, and criminal defense attorneys adding up the cost, let the alcohol industry pay the way.

Anonymous said...

The problem is that a great number of Drunks are driving from HOME, or a friends home when they are wasted.

no excuse for them though. Drunks need to spend time in jail, and I mean atleast a couple of years. If they kill, then life or worse. I am usually all for trying to rehabilitate someone, but in the case of Drunks that drive, they elevate themselves to future murderer.

i cannot help but think of all the stories that I have read, and incidents that I have seen where a drunk will slam into a vehicle and kill the sober occupants, while they get non-life threatening injuries. Sorry, but absolutely no pity or empathy here. The excuse that hard times have been placed on them, or they had a bad start is no excuse, as we have seenwhere people who made the right choices in life have gone on to bigger and better things.

Gritsforbreakfast said...

1:29, what you've expressed is an emotional state but not a realistic policy position.

You say "Drunks need to spend time in jail, and I mean at least a couple of years." But with 100K DWI cases per year statewide that's unrealistic to the point of absurdity, and if they tried to raise your taxes remotely high enough to pay to incarcerate so many people you'd squeal (likely also anonymously) like a stuck pig.

Do you have any suggestions that don't involve building and staffing dozens more new prisons?

1:20, VERY interesting suggestion. :)

Anonymous said...

I don't accept the argument that people must be able to drive in Texas. Maybe we need to put interlocks on every vehicle in the State. Walking back and forth to wherever you need to go, in our weather, is punishment enough.

Gritsforbreakfast said...

2:29 writes: "I don't accept the argument that people must be able to drive in Texas."

I wouldn't argue that they "must" be able to drive. I'd argue that Texas' transportation engineers have CHOSEN infrastructure for the the personal automobile as their primary transportation investment, so often driving is the most convenient or even the only reasonable way to reach certain destinations depending on where you're coming from. (You can wish people wouldn't do the most convenient or reasonable thing, but as my Dad likes to say, if wishes were horses, beggars would ride.)

The state could choose to invest tax dollars in other ways to get the public around - I'm headed next week to London where they invest a lot more in public transit and DWI death rates are minuscule compared to Texas. They also allow neighborhood pubs in mixed-use residential areas instead of zoning all the bars off to one or two districts where the only way to get there is to drive.

If the only tool is a hammer, the saying goes, everything looks like a nail, and so it is that "criminalize and punish" becomes the default solution to every social problem with nary a thought given to alternative solutions.

I'd like to see more thinking - like at 1:20 above - about DWI as a structural problem instead of solely resorting to ramping up enforcement.

Prison Doc said...

I'm all about redeeming people and getting them back into the workforce. I am a real fan of the ignition interlock devices, wish they were required in more cases and for longer periods with a resulting lower cost.

Locking 'em up forever isn't the answer, even if my job depends on a ready supply of incarcerated patients.

Anyone saying you don't need a car in Texas has never tried to work without one.

Prison Doc said...

Grits, you enjoy London for us for the cool weather if nothing else.

Texas Maverick said...

If MADD's push for tougher enforcement has been such a success why do we still have so many DWI's and so many in prison? Most get stopped and charged, they don't kill anyone. Like Sen Whitmire says, lock em up and don't treat and when they get out all you have is a dry drunk. Misuse of alcohol is still a huge problem because sale of alcohol is big business. If taxes were increased on alcohol sales, production and liquor licenses raised even higher than they are, to fund treatment programs (like taxes on cigs.) I wonder if use would decline like smoking and there would be fewer bars even in restaurants. In the late 70's people would comment that Smith county received more sales tax revenue from alcohol sales that any other source; "the wettest dry county in Texas." 01:20 Creative thinking, way to go.

Anonymous said...

In Houston, TABC tried to arrest everyone who was drunk in the bars and nightclubs, thereby preventing them from driving drunk.
There was a public (and small business owner) outcry.

Texas Maverick said...

Oh by the way, the main testimony by MADD at the Senate correction hearings was sobriety checkpoints and mandatory interlock. The DMN is just gearing up for the next session. You'll see lots of articles forthcoming. I wonder how much kickback, excuse me I mean donations, MADD gets from Interlock?

Anonymous said...

Just another area where "zero tolerance" is out of control and counter-productive. The lowering of the BAL didn't help either. Cops should be going after the dangerous drunk driver, not the one with his big toe on the BAL line.
While officers are tied up for hours with the buzz driver; the habitually, highly intoxicated, dangerous driver is flying around, waiting to kill someone.

Anonymous said...

I posted the 1:20, and really figured that everyone would consider me just a little nuts, so thank you for the blog support. I’m a bail bondsman and rarely ever get any here at Grits but I truly like the breakfast he serves up Austin style and can’t help but make this a regular stop;(not as much as Chez Freds though), are they still around?

The problem with interlock is that it is so easily circumvented. And,the uproar from drivers who do not drink would scare the begeevies out of politicians who would even consider the idea.

The taxi solution wouldn’t be perfect and the argument about the private drunk is well taken. However, it would greatly help the public drunk and for those who refuse to utilize a taxi privately, especially if a 4 door taxi-tow-truck delivered both passenger and vehicle home safely, the courts can offer up a no excuse punishment for 1st offenders. The taxi trucks can start patrolling the parking lots, the patrons will know their cell phone is preprogrammed to 911, and its amazing how many bar tenders, patrons, and friends will insist that those with car keys that they know shouldn’t drive wont take no for answer if they know a taxi-tow-truck is available at no charge.

A small tax on alcohol is a huge amount of money earmarked for taxi-tow-truck fares only.

I will stick to the only answer being to take the driving option away by making it too convenient not to drive, and make the alcohol industry pay for it.

Anonymous said...

Grits: Since you have everything squared away here in Texas, you gonna go across the pond and share your wisdom with them? Be sure and bring back the most up to date of modern forensic science. BTW - what you gonna do in London?


Anonymous said...

I am surprised no one has brought up electronic surveillance in this discussion.

The technology for detecting alcohol is being used now and at the rate we go, I suspect it will soon be available for other substances as well. And location can also be monitored.

Some say it is a big brother approach. It would be rather demeaning to have a box attached, but for me it would be much, much better than the alternative.

Anonymous said...

Wingman is a genius solution, much like 1:20 suggested, only even simpler.
The Wingman business model is a group of college kids with a foldable scooter, and a dispatcher. When you call, the kid heads to the bar or home, folds up the scooter and puts it in the truck, and drives you home in your own car.
The cost is more than a cab, but the savings is convenience and only a one-way ride, so it's really a sweet deal.
Wingman is quite popular in denser cities, but is just catching on here in Dallas.
They ought to be subsidized by the distributors.

-DWI lawyer in Dallas

Gritsforbreakfast said...

1:35, I've heard of Wingman and I agree if the business model were subsidized - the way Car2Go is subsidized in Austin with a public-private partnership - it might be possible to scale up to make a significant difference.

9:51, the SCRAM bracelets are fine but they can give false positives and like GPS they're only as good as the monitoring, which is more labor intensive in practice than one might suppose. IMO there really isn't a silver bullet, though if I had to pick one thing that would help it would be mandatory ignition interlocks on the second offense, paid for by the state so the requirement can be applied across the board. They seem to be a big difference maker, though like anything they require monitoring and it's possible to get around them.

5:31, speaking of Smith County, I first started thinking about some of these structural solutions when I was in high school, driving to Kilgore or Coffee City to buy alcohol with a fake ID, as was common. I always thought it was stupid to require people to drive thirty miles to buy alcohol when you know there's a decent chance they'll drive back drunk. In fact, when I was in high school 4 teens were killed in a DWI accident (all in the same car) that I believe happened on the way back from Kilgore, if I remember correctly.

And thanks Doc, Plato. The missus and I are just taking a much-needed vacation. (I'm going to try to have some guest bloggers here, though I don't know how frequently they'll post.) We were hoping to go last year but I lost my job. Her best friend married a German forest ranger and we haven't seen them in a dozen years or so; they live in some national park outside of Hamburg. So we're going to visit them at their home and also spend time in London, Berlin, and then Barcelona while we're over there. Needless to say, I'm pretty excited. :)

Anonymous said...

Okay, so how about this. A 100% markup on ALL alcohol sales unless the consumer can produce evidence of public transportation use (Taxi, bus, train, not plane) the date of the purchase. Then, regular price. The markup monies can be contributed to the public transportation system to promote more common use. Amazing what lengths we must go to in order to accomodate alcohol abuse. What ever happened to self control?

Don said...

The average BAC at arrest is about .15. The average alcohol-related crash is even higher. The point being, that most of the solutions offered ignore the fact that a very large percentage of DWI's are seasoned, dyed-in-the-wool, advanced stage alcoholics. They WANT to drive when they get drunk, not look for a way to avoid it. Most of these posts attempt to assign a level of responsibility to the drunk driver that they just don't have. As the judge said, incarceration without treatment doesn't help; rather it exacerbates. When an alcoholic gets out of jail, ALL he wants is a drink. And for whatever reason, drunks drive. And call people on the phone. It's a mystery wrapped in an enigma simmered in a conundrum, but it is absolutely true. Scott, my wife and I went to London in June. Wasn't all that cool, weather-wise. But my wife found it very cool, museum and history wise. Being where people lost their head was ok. I liked the Tower of London, and the original Hardrock Cafe, and the Texas Embassy.

Anonymous said...

Houston is notorious about having drinking events Downtown and at rodeo events around town that encourage lot's of drinking so the cops can stage a dwi task force at the same time and catch people over the limit.When it comes to DWI there is no end to the parodoxes, rhetoric and cold beer at the front convenient store cooler at the end of a hot august day.This is the world we have created.Why cant we accept We are all to blame as a society.Bars have always had parkin lots and if bars are not getting people drunk they could not pay the electric bill to keep em open.Otis goes to jail/prison and Budwiser laughs all the way to the bank.