Drunken Driving: A Mysterious Drop In Conviction Rate

ARMED with some of the toughest drunken driving laws in the country, police officials in New Jersey have mounted an unprecedented campaign against intoxicated drivers in recent years. Many municipal police departments have created special patrols and task forces, and county and state police officers have set up checkpoints on highways and near interstate bridges and tunnels.

In 1991, according to figures recently released by the State Division of Highway Traffic Safety, deaths attributed to drunken driving dropped to 147, the lowest in many years and a 25 percent decrease from 1990. At the same time, arrests have risen 8 percent over 1990 to 46,844. Yet the figures also show that the rate of drunken driving convictions has fallen to 70 percent, the lowest in 20 years and a continuation of a generally downward trend.

That figure has generated concern and confusion among experts around the state. Officials of the Traffic Safety Division cannot fully explain it, though they say that part of the reason may be a growing number of defendants who are failing to appear in court.

Other experts, however, fear that the very toughness of the law may be leading some municipal courts to go easy on those accused of drunken driving. A conviction for driving while intoxicated, also known as D.W.I., can result in an estimated $9,000 in fines and expenses and lead to the loss of driving privileges for at least six months and up to 10 years.

"They might be arresting more, but they're not getting the convictions," said Donna Frandsen, director of the Middlesex County Intoxicated Drivers Resource Center and chairwoman of the New Jersey Coalition Against Impaired Driving, a statewide advocacy organization. In her opinion, she said, "a lot of leniency in the courts" might be a contributing factor.

Mothers Against Drunk Driving, which has 150,000 members in New Jersey, has also expressed concern about the lowering of the conviction rate. The Bergen-Hudson County chapter, the state's largest, plans to intensify its court monitoring program, under which members track drunken driving cases in municipal courts.

"There's clearly a change occurring, and it's very disturbing," said Barry Johnson, director of the Monmouth County Board of Alcohol and Drug Abuse. "We've seen a dramatic drop in the number of referrals that come to us from the state."

Under state law, every person convicted of driving while intoxicated must attend 12 hours of counseling in an Intoxicated Drivers Resource Center.

Mr. Johnson said that last year the Monmouth County center received 2,300 referrals from the state. This year, he said, the center is expected to receive 1,637 referrals -- a decrease of nearly 30 percent.

Ms. Frandsen said her agency was down "a few hundred clients from last year." A failure to convict in a drunken driving case, Ms. Frandsen said, could happen because the case was dismissed, because it was downgraded to a lesser charge by the local prosecutor or because of a finding of not guilty by the judge after a trial.

"What I'm seeing in the courts is a lot of empathy on the part of the judges," she said. "If you have a male who is the sole support of his family, you might be punishing the whole family."

Ms. Frandsen emphasized that these were her personal observations and that there were no statistics to support them. In fact, none of the officials and experts interviewed could offer any certain explanation for the drop in the conviction rate reflected in the new state figures.

Municipal prosecutors like Donald R. Venezia, the municipal prosecutor in Hoboken, say they have observed no such drop in their towns.

If a police officer "dots his i's and crosses his t's when making a D.W.I. arrest," Mr. Venezia said, that arrest will almost always result in either a guilty plea or a conviction after a trial. 'Contrary to My Experience'

Henry Amoroso, who is the prosecutor in Hackensack and three other Bergen County towns, said a declining conviction rate "would be contrary to my experience," adding, "Except in the rarest of circumstances, every D.W.I. offense results in a plea or a finding of guilty."

And Paul Venino, prosecutor in the Weehawken municipal court, said he rarely had to try a drunken driving case because most defendants pleaded guilty before trial. As to the possibility of a prosecutor's reducing a drunken driving charge to a lesser charge, like reckless driving, Mr. Venino said that State Supreme Court rulings prohibited such downgrades.

"We don't plea-bargain," Mr. Venino said. "I'll never take a reckless driving plea in place of a D.W.I."

Division of Highway Traffic Safety officials say the conviction rate for drunken driving cases that actually get to court is about 85 percent. That, however, does not account for the rest of the cases that do not result in a conviction.

"We really don't know what's happening with those cases," said William Hayes, deputy director of the division. Possible Explanations Offered

It may be, he said, that more defendants are failing to appear in court, or that more drunken driving cases are being "merged" with more serious charges and thus not showing up in reports as D.W.I. convictions.

But some officials are not convinced that these factors account for the overall decrease in the conviction rate.

Peter J. Moran, director of the Union County Intoxicated Drivers Resource Center, said he believes that, while plea bargains are not permitted, not all D.W.I. defendants who appear in court end up being prosecuted. "It's up to the prosecutor," he said. "If he feels he doesn't have a substantial case, he might dismiss it."

Though not technically plea bargaining, many lawyers say, such a dismissal typically results in the defendant's pleading guilty to other charges made along with the D.W.I. summons, like reckless or careless driving.

When asked whether he thought the reduced conviction rate might also be the result of increasing leniency in municipal courts, Mr. Moran said he "wouldn't be the least bit surprised."

Dr. Leonard Saunders, public policy liaison officer for the state office of the Mothers Against Drunk Driving organization, said the drop in the conviction rate "troubles us deeply."

And Florence Nass, director of the Bergen-Hudson chapter, added, "I really don't know whether the defense attorneys are finding more loopholes or whether things are becoming a little too lax in the courts, but we're concerned about it."

Beginning in January, she said, the chapter's monitors will attend court sessions in all 81 municipal courts in Hudson and Bergen Counties to try to determine whether the courts there have become too lenient with drunken drivers. "We're really going to blitz them," she said. Breathalyzer: Closing a Loophole

Like many other states, New Jersey bases most of its drunken driving prosecutions on tests conducted with the Breathalyzer -- a machine that computes the amount of alcohol in the blood by measuring alcohol on the person's breath.

But New Jersey is unique in the way it interprets Breathalyzer readings. Under current state statutes, a reading of .10 is considered proof that a person is legally intoxicated.

So, if the police have followed proper procedures in making the arrest for drunken driving, and if the Breathalyzer unit is functioning and operated properly, a drunken driver faces almost certain conviction if the Breathalyzer reading is .10 or higher.

"There are a whole string of defenses that will work in other states but will not work in New Jersey," said Boris Moczula, a deputy attorney general in the State Attorney General's office.

New Jersey, for example, is the only state that does not permit defense lawyers to challenge the Breathalyzer reading based upon the common occurrence that the breath test is administered some time after operation of the vehicle. In other states, lawyers can win acquittal for their clients if they can prove that a client, though legally drunk at the time of the breath test, was sober when he operated the vehicle because it takes time for alcohol in the stomach to get into the bloodstream.

Such a defense, a legal loophole known as extrapolation, allows an expert to testify as to what the blood-alcohol content was at the time of operation by "calculating backward" from the breath test.

.I. offense results in a plea or a finding of guilty."

In 1987, however, the State Supreme Court ruled that extrapolation is not allowed and that a .10 reading is sufficient proof of intoxication at the time of operation of the vehicle.

As a result, Mr. Moczula said, "if the breath test gets into evidence, there's not much a defense attorney can do." New Jersey's Harsh Penalties

In New Jersey, those convicted of driving while intoxicated face some of the harshest penalties in the nation.

"There are about 20 penalties all together," said Francis X. Moore, a Red Bank lawyer who often represents clients charged with driving while intoxicated.

For a first conviction of drunken driving, Mr. Moore said, a driver faces a mandatory suspension of his or her license for six months and the possibility of spending up to 30 days in jail. In addition, there are a mandatory fine of at least $250, a mandatory $100 surcharge that goes to support law-enforcement efforts at catching other drunken drivers, a mandatory $50 payment to the Violent Crimes Compensation Board and court costs ranging from $15 to $75.

Convicted drivers are also required to undergo a minimum of 12 hours of counseling over two days at an Intoxicated Drivers Resource Center, for which they must pay $50 a day. If the counselor at the center detects a chronic alcohol problem, the offender can be required to submit to additional counseling.

Every person convicted of driving while intoxicated must pay the state a $1,000 a year surcharge for three years. And, as a result of a recent change in the state's insurance laws, convicted drunken drivers receive nine "insurance points" that could subject them to huge increases in automobile insurance premiums.

"The penalties for drunk driving are more severe than some forms of arson, burglary, theft and atrocious assault and battery," Mr. Moore said.

Peter J. Moran, director of the Union County Intoxicated Drivers Resource Center, said that the fines, penalties, surcharges, insurance premium increases, legal fees and other related expenses resulting from a first offense for drunken driving "probably cost in excess of $9,000."