DWI/DUI Arrests of Drivers with Low BACs
Drunken drivers involved in fatal traffic crashes have an average BAC of .19 percent, more than twice the current legal limit. 1 A large number of these drivers are repeat offenders, many of whom are alcoholic. Such hard core repeat offenders need treatment for their alcoholism, argues the head of the National Highway Traffic Safety Administration (NHTSA), Dr. Jeffrey Runge. 2 As one traffic judge observes, we can’t simply jail the problem away. It’s much wiser to get to the heart of the problem.
Anyone breaking the law by driving with a BAC of .08 or higher should be ticketed and fined. However, as the founder and first president of Mothers Against Drunk Driving (MADD) says, “if we really want to save lives, let’s go after the most dangerous drivers on the road.” 3 To be efficient we need to put our emphasis on apprehending and stopping the repeat, high BAC offenders who are at the highest risk of causing injuries or deaths.
Reports of drivers arrested for driving while intoxicated (DWI) over and over again fill the news. One drunk driver was recently arrested for the 34th time. Our limited resources should focus on hunting down and treating habitual offenders. If treatment fails, they must be kept off the roads and highways.
However, as reported in The Washington Times, some police departments and officers seem to see things differently and are arresting drivers with a BAC just a fraction of the legal limit:
One Florida man recently ended up in jail for driving with a BAC of .02 percent -- the equivalent of about one drink. The grandson of a former Supreme Court justice, who had a little wine with dinner, was arrested in Washington with a BAC of .03 percent. And just a few months ago, a Florida man who admitted he drank a few beers hours before spent a night in jail though his BAC was a flat .00 percent. These are more than just isolated incidents. They are harbingers of a growing trend. 4
Observer John Doyle says “our collective failure to adequately deal with alcohol abusers who drive drunk should not be used as an excuse to punish moderate consumption of adult beverages.” 5

References:
National Highway Traffic Safety Administration (NHTSA) web site (nhtsa.dot.gov);
Lundegaard, Karen. DWI court treatment programs in U.S. show signs of helping drunk drivers to sober up. Wall street Journal, April 7, 2004, pp. B1-B2;
Fumento, Michael. Catch drunks, don’t harass drivers. consumeralert.org and fumento.com;
Doyle, John. Drunken driving checkpoints. Washington Times, p. A17, May 32, 2005;
Doyle, John. Drunken driving checkpoints. Washington Times, p. A17, May 32, 2005.

DWI Arrests at Zero BAC in DC
David J. Hanson, Ph.D.
“You Drink and Drive. You lose” is taken literally by police in the District of Columbia.
A 45 year old lawyer told a DC police officer that she had one glass of wine with her dinner; her breathalyzer test registered a low .03 blood alcohol concentration (BAC). For that, she was handcuffed, searched, arrested, put into a jail cell and charged with driving under the influence of alcohol.
A mistake? An isolated incident? The vindictive action of a single rogue cop? It was none of these.
The arresting officer, Dennis Fair, said in an interview that “If you get behind the wheel of a car with any measurable amount of alcohol, you will be dealt with in DC. We have zero tolerance…. Anything above .01, we can arrest.” That’s not .10 but .01. And people are arrested in the nation’s capital with zero BACs. The DC’s Attorney General says that it’s legal for drivers to be arrested for DUI (driving under the influence of alcohol) with “no registered BAC.” Indeed, DC police do arrest people with 0.00 BAC if they admit to having had a single drink with dinner.
Fair acknowledges that many people are unaware of the police zero tolerance policy. But he says “If you don’t know about it, then you’re a victim of your own ignorance.”
Apparently some members of the DC Council were unaware of the policy as well and have passed an ordinance to prevent it, although the mayor has threatened to veto the measure and Mothers Against Drunk Driving (MADD) isn’t pleased with the Council’s action to prevent zero tolerance.
Letters to the Editor of The Washington Post expressed dismay at the zero tolerance policy. One reader asked “Why do we have laws if the police enforce whatever they want to, not the actual statutes? Shall we have ‘zero tolerance’ for speeding, so that a driver going under the speed limit can be stopped, ticketed and thrown in jail?” Another said “I find it absurd and insulting to District residents and visitors that in a city with chronic violent crime and growing gang violence, a police officer would spend so much of his shift on the arrest of a woman whose crime was having one glass of wine with dinner.”
The Washington Times asserts that
Washington is a city with a homicide every other day. It shouldn’t waste time hauling in hundreds of otherwise law-abiding citizens who happen to have a single drink with a meal. Given the D.C. government’s reputation for using fair means and foul to extract revenue from its citizens, this inevitably invites speculation that such zero-tolerance enforcement of drunk-driving laws has, like the spy cameras, little to do with citizen safety, and everything to do with squeezing taxpayers for a few dollars more.
The belief of the head of Mothers Against Drunk Driving (MADD), Glynn Birch, appears consistent with that of the District police. He says that if people want to have a drink, they should stay at home and not drive. However, an official with the American Automobile Association said “This zero tolerance is out of order, out of bounds and outrageous,” and he had been unaware of it. The policy can be especially harmful to those federal employees who need to maintain an arrest-free record in order to keep their jobs.

MADD’s View of Citizens’ Constitutional Rights
Mothers Against Drunk Driving is fueled by anger and grief. In fact, its original name was Mothers Against Drunk Drivers. 12 As a leading researcher on drunk driving has observed, MADD is focused on
the demand for justice or vengeance on the group that took the lives of friends and children. This warrants harsh punishment, whether or not deterrence is achieved. It also leads to rejection or a lack of enthusiasm for policies that promise to save lives of crash victims without regard for the cause of an accident. 13
A case in point. Research suggests that using a cell phone while driving may cause more traffic fatalities than driving drunk. But when a MADD official was asked how traffic fatality statistics involving cell phone use compared to those involving drunk drivers, he tellingly replied "I have absolutely no idea, nor do I care." 14 The reason appears to be that MADD sees other causes of traffic accidents to be potential competitors for money and attention. 15
The president of MADD Canada was outraged and publicly blasted a judge who sentenced a repeat drunk driver to restrictions, including electronically-monitored severe limits on his mobility on condition he remain in treatment for his alcoholism. The driver had maintained a long period of sobriety before experiencing a relapse. In handing down the sentence, the judge cited scientific research demonstrating that severe punishments are ineffective in deterring drunk driving by alcoholics. Therefore, she developed a sentence designed to reinforce the long-term effectiveness of his rehabilitation.
MADD Canada strongly disagreed with the judge and wanted severe punishment rather than rehabilitation. 16
MADD’s anger and grief often lead it to disregard constitutional rights. To learn more about MADD’s stance toward human or civil rights, visit MADD and Citizens’ Constitutional Rights.

MADD’s Focus on Money and Fund-Raising
Non-profit organizations typically permit their chapters to keep most of the money they raise. For example, Remove Intoxicated Drivers (RID) chapters get to keep 90% of all funds they raise. But MADD claims ownership of every penny raised by all its many chapters. Thus, after raising $129,000 locally and turning it all over as MADD demands, the Las Vegas chapter received a check from the national office for $1.29 (one dollar and twenty nine cents) as its share. 10 MADD's "focus is on greed," said the chapter President, who reported "I've never seen such bloodsuckers!" 11
All items in some issues of Mothers Against Drunk Driving's MADD E-Newsletter are devoted entirely to MADD's primary mission of fund-raising. There are no pleas for sober driving, no calls for more sobriety checkpoints, no news reports, no petitions for legislation to reduce impaired driving and improve traffic safety ---- just fund-raising appeals. Most issues of the MADD E-Newsletter usually have at least one or two items not devoted to soliciting money.
MADD's national web site lists all local chapters. Each listing is followed by a plea to "Donate Locally." This is clearly deceptive because it implies that funds given to local chapters will be handled differently than funds given to the national office. In reality, all funds, wherever donated, must go directly and completely to the national office for use as it sees fit.
To learn more about MADD’s focus on money and fund-raising, visit MADD’s Money isn’t Mad Money.

MADD’s Use of “Science”
Unfortunately, Mothers Against Drunk Driving often uses junk science to promote its agenda. For example, a very brief three-page study by MADD former vice president Ralph Hingson made a statistical assertion in support of MADD’s policy agenda that the U.S. Department of Transportation had been unable to establish after 15 years of careful research. Even after the General U.S. Accounting Office issued a report to Congress insisting that the Hingson claim was "unfounded," MADD continues to quote the unsubstantiated estimate as scientific fact. 9
To learn more about MADD’s misuse science to promote its agenda, visit MADD, Junk Science, and the Misuse of Science.

MADD’s Goal: Is it Neo-Prohibitionist?
Mothers Against Drunk Driving stigmatizes light or moderate alcohol consumption, even when it isn't associated with either being underage or driving. For example:
MADD sells a graphic showing two empty glasses of alcohol surrounded by the words assault, drowning, burns, rape and suicide.
MADD sells a graphic that equates beer with heroin by depicting a beer bottle as a drug syringe.
MADD sells a television ad insisting that "if you think there's a difference" between heroin and alcohol, "you're dead wrong." 8
Mothers Against Drunk Driving has clearly become not simply anti-drunk driving or even anti-impaired driving, but anti-alcohol. MADD’s temperance orientation expresses itself in many ways, as seen in Is MADD Neo-Prohibitionist?

The Drunken Driving Problem
MADD recognizes that the problem of drunken driving has now largely been reduced to a "hard core of alcoholics who do not respond to public appeal." 1 Most drivers who have had something to drink have low blood alcohol concentration (BAC) and few are involved in fatal accidents or crashes. 2 On the other hand, while only a few drivers have BAC's higher than .15, many of those drivers have fatal crashes. 3 For example, almost half of fatally injured drunk drivers have a BAC of .16 (which is twice the legal limit) or higher. 4
The biggest problem in reducing drunk driving fatalities now consists of the hard core of alcoholic drivers who repeatedly drive with BAC's of .15 or higher. But MADD has now decided to go after social drinkers and to eliminate driving after drinking any amount of alcohol beverage. This change appears to reflect the influence of a growing neo-prohibitionist movement within MADD.
The founding president of MADD, Candy Lightner, left in disgust from the organization that she herself created because of its change in goals. "It has become far more neo-prohibitionist than I ever wanted or envisioned," she says. "I didn't start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving." 5 Ms. Lightner has emphasized the importance of distinguishing between alcohol and drinking on one hand and drunk driving on the other. 6
Ms. Lightner has apparently put her finger on the problem when she says that if MADD really wants to save lives, it will go after the real problem drivers. 7 Instead, it has become temperance-oriented.

DUI/DWI and Soft Judges
by David J. Hanson, Ph.D.
A “soft” judge is one who is considered more likely to aquit or find a defendant not guilty than many other judges.
A judge who upholds a defendant’s Constitutional rights is not “soft” for doing so. Indeed, all judges have given an oath to uphold the United States Constitution and to defend the rights it provides. Any judge who fails to protect these fundamental Constitutional rights is not soft but in serious violation of this oath and should be removed from the bench for dereliction of duty.
In the U.S. today “[U]ncompromising enforcement of laws designed to rid our highways of the scourge of drunk drivers ranks only slightly behind the veneration of motherhood and probably slightly ahead of a robust hankering for apple pie in the hierarchy of values firmly embedded in our culture.” 1
That’s exactly as it should be. In fact, we must do even more to reduce drunken driving and the serious problems it causes. But in doing so, we must carefully protect individuals’ Constitutional rights. Otherwise, we become a police state.
The Indiana Court of Appeals ruled that “The requirements of the Fourth Amendment (of the United States Constitution) cannot be lowered” and it invalidated a county’s drunk-driving policy that provided for illegally obtaining evidence against citizens. 2
We must resist the strong temptation to obtain higher conviction rates at the expense of basic human rights. Otherwise, we become a police state.

Breathalyzer Accuracy and DWI/DUI Conviction Rates
by David J. Hanson, Ph.D.
Research indicates that breath tests vary at least 15% from actual blood alcohol concentration. At least 23% (that's about one out of every four) of all individuals tested will have a BAC reading higher than their actual BAC. 1 Therefore, many people convicted of DUI/DWI simply on the basis of a breath test results alone will be innocent drivers who are falsely convicted.
It’s important that drunk drivers, and especially hard core repeat offenders be convicted and/or receive appropriate treatment. But it’s also important that innocent drivers not be falsely convicted of DWI/DUI.
A thoughtful observer has emphasized that
The law presumes every citizen innocent, even when charged with DWI. A judge violates the judicial oath when he or she presumes that a citizen charged with DWI is guilty, gives greater weight to the state's evidence, is predisposed to find for the state, or looks for ways to assist the state in the prosecution of a case. Judges with high conviction rates are NOT fair and impartial but proxies for the prosecution or result-oriented interest groups.
The law imposes the highest burden of proof in criminal matters -- proof beyond a reasonable doubt of every element of the offense. Judges who lower this high burden in DWI cases make it probable that innocent people will be convicted, robbed of their liberty, their property, and their rights. When we permit or encourage judges to lower the burden of proof, we embark upon a slippery slope where expediency and results, rather than justice and law, guide decisions. 2
One judge who has been criticized for allegedly being too “soft“ on defendants is Judge Jerome Leonard of North Carolina, who defends his decisions. “We have taken an oath to uphold the law,“ Judge Leonard explains. “If there’s a reasonable doubt, I have to find that person not guilty.“ 3
The results may not always be pleasing, but the alternative is living in a police state without the protective rule of law.

A number of DWI Courts have been operating for several years. Their experience may be helpful to other courts that are considering establishing a DWI Court .

• Anchorage Wellness Court ( Anchorage, Alaska) was established in 1999 as a therapeutic court for alcoholic misdemeanor defen dants. Participants enter an 18-month program under a plea agreement that gives them a reduced sentence if they complete the program. During these 18 months, they must stay alcohol and drug free, be monitored for sobriety, attend treatment for their addiction, take naltrexone for the first four months, attend a cognitive behavior group and Alcoholics Anonymous (AA) meetings, appear before the Wellness Court judge at regular intervals, be rewarded or sanctioned for progress, be employed, pay restitution, and pay most of their treatment costs. Nearly all of the participants are repeat DWI offenders, with an average of more than three DWI offenses. The rates of recidivism for graduates of the program are as follows: 0 percent for 2003 graduates and 25 percent for 2001 and 2002 graduates. The cost of participation in the program is less than 10 percent of the cost of incarceration. In addition to the misdemeanor Anchorage Wellness Court, Anchorage also sustains a felony DWI Court for repeat DWI offenders.

• Maricopa County DUI Court ( Phoenix, Arizona) is funded by the National Highway Traffic Safety Administration (NHTSA), U.S. Department of Justice (DOJ) and the National Institute on Alcohol Abuse and Alcoholism (NIAAA), and has been operating since 1998. After entering a guilty plea, defen dants who are assigned to this court must appear in court at least once a month. At each court session, the defen dant is required to enter into a contract with the DUI court judge, which details the defen dant’s obligations, including abstaining from using alcohol or drugs, obtaining substance abuse counseling and/or treatment, attending AA meetings, reporting to the probation office, and participating in a DUI victims program. The sentencing judge imposes a 60-day deferred jail term in addition to any mandatory incarceration term, to encourage defen dants to comply with their contracts. Sanctions for non-compliance with an obligation under the contract may include imposition of some portion of the deferred jail term, as well as community service, removal from the DUI court program, and revocation of probation. The program lasts for one year. After completing the program, participants are placed on additional supervision probation for one year.

• Athens DUI/Drug Court Program ( Athens, Georgia) Offenders with either two DUI convictions within a 5-year period or with three or more lifetime DUI convictions are sentenced to the DUI/Drug Court Program. The post-adjudication program operates on a team concept and involves enhanced supervision, mandatory substance abuse treatment, individual and group counseling, random and frequent drug testing, AA and NA meetings, bi-weekly appearances before the judge for either encouragement for positive participation (Incentives) or, if needed, reprimand or sanctions for non-compliance. DUI/Drug Court participants receive services in 5 phases of court supervised involvement. DUI/Drug Court is a minimum period of 1 year and a maximum period not to exceed 2 years based on successful completion of all phases of the program. Except for situations of physical disabilities preventing work, DUI/Drug Court participants shall seek, obtain, and maintain gainful employment and pay a fee for their participation in the program. Presently, participant fee collections total approximately 58 percent of the annual program budget. Successful completion of the program meets treatment requirements for driver license reinstatement by the Department of Motor Vehicles. Since the program’s inception in February, 2001 the DUI recidivism rate for participants is 3 percent.
  Judicial Council of Georgia: DUI Court Research

• Kootenai County DUI Court (Idaho) is an alcohol treatment program for persons arrested for their second DWI offense within five years or who have a BAC of 0.20 percent or higher. Potential participants are screened to determine the extent of their alcohol problem and eligibility for the program. Persons who are accepted into the program must sign a contract for comprehensive alcohol treatment lasting a minimum of one year, and are placed on extensive probation supervision and judicial monitoring by the court. NHTSA’s evaluation of this program found that only four percent of the participants who completed the program were rearrested for DWI.
  Koontenai County DUI Evaluation

• Michigan Sobriety Courts treat alcohol addiction with intense treatment and heavy court supervision, imposing incarceration as a last resort. Offenders must enter a guilty plea, allowing the court to incarcerate an offender for failing to complete treatment. Participants receive 36 weeks of detoxification, urine and breathalyzer tests, AA counseling, and group therapy. They must also meet with a probation officer and an alcohol counselor once a week and with a sobriety court judge once a month. They may retain their driving privileges by installing an ignition interlock system at their own expense.

• Bernalillo County DWI Court ( Albuquerque, New Mexico) has been operating since 1997, with the primary goal of reducing recidivism. It is a voluntary, court-supervised treatment program, which requires regular appearances before a DWI court judge and regular contact with the probation officer. Participants are required to undergo treatment, participate in mandatory drug and alcohol counseling, attend 12-step or other self-help meetings, and submit to random drug and alcohol screening. They are also required to attend a victim impact panel and to complete a specified number of hours of community service. A participant who violates any conditions of the program is sanctioned by a DWI court judge as soon as possible. Sanctions may include incarceration.
  Bernalilo County Evaluation - Final Report
  Bernalilo County Evaluation - Supplemental

• Rappahannock Area Alcohol Safety Action Program (RAASAP) DUI Recidivism Court (Virginia) is a cooperative effort that includes the judge, prosecutor, defense counsel, treatment professionals, and RAASAP case manager. This team reviews the progress of each offender in the program. Frequent status hearings are conducted. The DUI court judge is responsible for imposing sanctions; however, any team member may recommend sanctions. The judge readily responds to relapse or other violations with immediate sanctions, including increased frequency of status hearings, increased frequency of alcohol or drug screening, increased case management appointments in the RAASAP office, increased treatment atten dance, referral to the ignition interlock program, removal of driving privileges, curfew, community service, or jail.

In the University of New Mexico ’s evaluation of the Bernalillo County Metropolitan Court ’s DWI/Drug Court Program, only 36 of the 341 graduates had been rearrested for DWI since the program’s inception, which reflects a recidivism rate of only 10.6%.

The Kootenai County, Idaho Prosecuting Attorney’s Office and the Idaho Transportation Department’s Office of Highway Safety completed an analysis of the Kootenai County DUI Court, an alcohol treatment program for persons arrested for their second DUI offense within 5 years or BAC of 0.20% or higher. The results showed a 70% program completion success rate among the 46 graduates of the program, versus a 40% completion success rate of treatment for non-court-managed referrals. In addition, only 4% of the 46 DUI Court graduates were arrested for a subsequent DUI versus a 14% DUI recidivism rate among a comparison group of 100 persons eligible for the program but not participating.

A DWI court is a distinct court system dedicated to changing the behavior of the alcohol/drug depen dan t offenders arrested for Driving While Impaired (DWI). The goal of DWI court is to protect public safety by using the drug court model to address the root cause of impaired driving, alcohol and other substance abuse. With the repeat offender as its primary target population, DWI courts follow the Ten Key Components of Drug Courts and the Ten Guiding Principles of DWI Courts, as established by the National Association of Drug Court Professionals and the National Drug Court Institute.

Unlike drug courts however, DWI courts primarily operate within a post-conviction model. In a supported resolution by National Mothers Against Drunk Driving, “MADD recommends that DUI/DWI courts should not be used to avoid a record of conviction and/or license sanctions.” Variants of DWI courts include drug courts that also take DWI offenders, which are commonly referred to as “hybrid” DWI courts or DWI/drug courts.

DWI courts utilize all criminal justice stakeholders (judge, prosecutors, defense attorneys, probation, law enforcement, and others) coupled with alcohol or drug treatment professionals. This group of professionals comprises a “DWI Court Team,” and uses a cooperative approach to systematically change offender behavior. This approach includes identification and referral of participants early in the legal process to a full continuum of drug or alcohol treatment and other rehabilitative services. Compliance with treatment and other court-mandated requirements is verified by frequent alcohol/drug testing, close community supervision and ongoing judicial supervision in non-adversarial court review hearing. During review hearings, the judge employs a science-based response to participant compliance (or non-compliance) in an effort to further the team's goal to encourage pro-social, sober behaviors that will prevent future DWI recidivism (Loeffler, Huddleston & Daugherty, 2005).

The missions, objectives and operations of a drug court that exclusively targets illicit drug abusers, a designated DWI Court that targets alcohol or other substance impaired drivers, and a hybrid DWI/Drug Court that targets a mix of DWI offenders and illicit drug abusers are nearly interchangeable. All are part and partial of the drug court model.

The major difference from traditional drug court is that in the designated DWI Courts or hybrid DWI/Drug Courts, the offenders come to the court as a direct result of an impaired driving arrest and a documented history of impaired driving. In contrast, in the more traditional drug court docket the targeted offenders are those who have engaged in non-traffic related criminal behavior (as opposed to illegal driving behavior) as a result of their use of illegal substances. Experience has shown, however, that the participants in these two treatment court environments are far more similar than different. Although wholeheartedly endorsing the use of either of the above-noted applications of the drug court model, there are several advantages to operating designated DWI Courts, most notably because they allow for development of a more specialized treatment focus and a more case manageable network of relevant and supportive community resources. DWI Courts shine a spotlight on the triggers and consequences of non-responsible alcohol intake. They embrace the community of victims of DWI episodes and encourage the fair and sensitive inclusion of victim advocates in the treatment process. Most importantly perhaps, they serve as a potential unifying hub for the myriad of agencies and organizations that have been part of piecemeal attempts to plug the gaps in the drunk driver control system. DWI Courts can and should serve as a unifying venue of accountability for the repeat DWI offender. By partnering with the respective state’s department of motor vehicles, Governor’s highway safety commission, highway patrol, local law enforcement accident prevention squads, MADD and other accident prevention and victim support groups, DWI Courts can add teeth to the justice system’s response to repeat drunk driving.

A DWI Court ’s coercive power is the key to admitting DWI offenders into treatment quickly and for a period of time that is long enough to make a difference . This proposition is unequivocally supported by the empirical data on substance abuse treatment programs. Data consistently show that treatment, when completed, is effective. However, most addicts and alcoholics, given a choice, will not enter a treatment program voluntarily. Those who do enter programs rarely complete them. About half drop out in the first three months, and 80 to 90 percent have left by the end of the first year. Among such dropouts, relapse within a year is the norm.

Accordingly, if treatment is to fulfill its considerable promise as a key component of DWI reduction policy, DWI offenders not only must enter treatment but must remain in treatment and complete the program. If they are to do so, most will need incentives that may be characterized as “coercive.” In the context of treatment, the term coercion - used more or less interchangeably with “compulsory treatment,” “mandated treatment,” “involuntary treatment,” “legal pressure into treatment”- refers to an array of strategies that shape behavior by responding to specific actions with external pressure and predictable consequences. Moreover, evidence shows that substance abusers who get treatment through court orders or employer mandates benefit as much as, and sometimes more than, their counterparts who enter treatment voluntarily (Satel, 1999; Huddleston, 2000).

DWI is the best vehicle within the criminal justice system to expedite the time interval between arrest and entry into treatment, and provide the necessary structure to ensure that a DWI offender stays in treatment long enough for treatment benefits to be realized.

Evaluation studies are vital in sustaining DWI Court programs. Courts conduct outcome evaluation studies to demonstrate the dramatic effect of DWI/Drug Courts on the community, to assess relative costs, and to maintain or seek funding.

With their rapid expansion and proven effectiveness, DWI Courts are changing the mindset of criminal justice professionals and effecting how DWI offenders are handled. Treatment with intensive supervision works with this population – and promises better long-term outcomes, through decreased recidivism.

Success of the Drug Court Model

Today there is irrefutable evidence that drug courts are achieving what they set out to do. In a series of critical reviews published from 1998 to 2001 of over 120 evaluations of drug courts located throughout the nation, the National Center on Addiction and Substance Abuse at Columbia University determined that “drug courts provide the most comprehensive and effective control of drug-using offenders’ criminality and drug usage while under the court’s supervision. Drug courts provide closer, more comprehensive supervision and much more frequent drug testing and monitoring during the program than other forms of community supervision. More importantly, drug use and criminal behavior are substantially reduced while offenders are participating in drug court” (Belenko, 1998; 2001). To put it bluntly, “we know that drug courts outperform virtually all other strategies that have been attempted for drug-involved offenders” (Marlowe, DeMatteo, & Festinger, 2003). Perhaps the most important finding is that offenders who become part of a drug court program are succeeding upon completion. Comparisons with other groups reveal much higher retention rates and lower recidivism and drug-use rates for drug court participants both during the life of a program and after the program ends (Belenko, 1998; 2001).

The most substantial and compelling national study to date was commissioned by the National Institute of Justice and released in 2002 whereby a sample of 2,020 graduates from 95 drug courts in 1999 and 2000 were tracked to establish a benchmark national aggregate recidivism rate. The study estimates that after graduation, only 16.4 percent of drug court graduates had been arrested and charged with a serious offense after one year and 27.5 percent at the two year mark. These estimates represent the expected outcomes for those who succeed in drug court: one year after graduation, only one out of six drug court graduates would be expected to be re-arrested and charged with a serious offense. (Roman, Townsend, & Bhati, 2002). Finally, a 2000 Vera Institute of Justice report concluded that “the body of literature on recidivism is now strong enough to conclude that completing a drug court program reduces the likelihood of future arrest.” (Fluellen & Trone, 2000).

DWI Courts and DWI/Drug Courts: Utilizing the Drug Court Model With Impaired Drivers

To date, it has been left to the traditional courts and criminal justice system to deal with DWI cases, and it has become clear that the traditional process is not working for repeat offenders. Punishment, unaccompanied by treatment and accountability, is an ineffective deterrent for the repeat DWI offender. The outcome for the offender is continued dependence on alcohol; for the community, continued peril. A new strategy exists to fight against repeat impaired driving. Generally called “DWI Courts” or “DWI/Drug Courts,” offenders are held at the highest level of accountability while receiving long-term, intensive treatment and compliance monitoring. There are currently 81 designated DWI Courts and 249 hybrid DWI/Drug Courts, which are drug courts that also take DWI offenders.

The long history of positive outcomes for drug courts begs the question: If drug court programs can reduce recidivism among the populations they now serve, could the drug court model, applied to impaired drivers be as successful?

Drug Courts: A National Phenomenon

FFor more than a decade, a quiet revolution has occurred within the criminal justice system. Dade County , Florida established the first drug court in the United States . Today, more than 1,900 drug courts can be found across the country with hundreds more in the planning stage (Huddleston, Freeman-Wilson & Marlowe, 2005). Although program specifics and populations vary depending upon community priorities and resources, the objective of every drug court is the same: to engage defendants charged with drug-related offenses in comprehensive, enduring programs that integrate adjudication, substance abuse treatment and close supervision.

All drug courts are part of an innovative judicial model whereby offenders are held accountable for their actions and afforded the tools they need to break the patterns of drug abuse that so damage their lives, as well as the lives of others. The major goals of drug courts have been established with the benefit of both offenders and the communities in which they live in mind. Typically, these goals are to reduce drug use and associated criminal behavior by engaging and retaining drug-involved offenders in treatment and intensive supervision; to concentrate staff expertise about drug cases into a single courtroom; to address other defendant needs; and to remove drug cases from traditional courtrooms, freeing them to adjudicate non-drug cases.

Police officers in some Kansas cities have been citing bicyclists for drunk driving. Now a case is before the Kansas Supreme Court that will decide whether the Kansas DWI laws apply equally to bicyclists.

Such cases can have serious ramifications for right of bicyclists to ride on the roadways. All states, including Kansas, either consider bicycles as vehicles or give them all the rights and duties of vehicles, except those rights and duties which, by their very nature, do not apply to bicycles. Taken at face value, most on-road cyclists hold that ordinary traffic laws such as driving while intoxicated would apply equally to motorists and bicyclists unless the language of the DWI law clearly specifies otherwise.

Court ruling in such cases, however, have been decidedly mixed. Such rulings can seriously confuse the issue of which traffic laws apply to cyclists.

Research shows that riding a bicycle while intoxicated is a very dangerous business, because the bicyclist's most important bit of safety equipment is his or her skill and good judgment. One study in the Washington, D.C., area concluded that in fully one-third of bicycle fatalities, the bicyclist had elevated blood-alcohol levels. Riding with a blood-alcohol level of 0.08 increased the rider's risk of serious or fatal injury by 2000%.

According to a story in the Topeka Capital-Journal, here are the details of the incident that sparked the Supreme Court case:

Hackett knew he would be drinking on the night of March 3, 2000, so he took his bicycle instead of his car, Owens said.

The report of a bicycle-car accident brought a Wichita police officer to the scene that night. No car was involved -- only Hackett, who had been riding on the sidewalk. He flipped his bike after crossing an intersection and coming up to a sidewalk.

Hackett was arrested on a DUI charge after his blood-alcohol content registered at 0.204 percent, more than twice the legal limit for driving, 0.08 percent.

Hackett was charged under the municipal DUI ordinance. The state DUI statute applies specifically to motor vehicles, but Wichita's municipal DUI ordinance has different wording.

Police indicate that DUI charges have been brought against very, very few bicyclists in Wichita.

Promising but inadequately evaluated measures include:
Marking the license plate to indicate ownership in the family of someone whose driver's license is suspended or revoked for alcohol offenses. 17
Passing and enforcing bans on open containers would probably reduce drunk driving by deterring drinking while driving. Surprisingly, some states have vehicular no open container laws. 18
Imposing graded or multi-tiered penalties based on BAC at the time of arrest. This policy is virtually universal with regard to speeding. 19
Restricting nighttime driving by young people. This appears to be effective in those states with such restrictions. 20
Electronically monitoring repeat DWI offenders. 21
Involving drivers in identifying and reporting possibly drunken drivers to law enforcement authorities by dialing 911 on their cell phones. See Help Police Stop Drunken Drivers
Requiring every state to provide adequate information on alcohol and driving to prospective drivers and adequately testing them on the subject in their driver's exams. In too many states, the subject is given only brief mention and do not include any information or testing in the process of obtaining a driver's license. Some actually provide factually incorrect information.
All of these very promising measures should be rigorously evaluated scientifically to determine their potential contribution to improving safety.
Measures of little or no value:
Incarceration. Jail or prison sentences for alcohol offenses, in spite of their great popularity, appear to be of little value in deterring high BAC drivers. In short, It appears that we can’t "jail our way out of the problem." 22
The perception of swift and certain punishment is more important than severity. 23
Large fines appear have little deterrent effect, according to research. 24
Increasing the cost of alcohol with increased taxation would have virtually no impact on reducing drunk driving. 25 Both research and common sense suggest that heavy drinkers are not deterred by cost and most minors who drink don’t pay for or purchase their beverages. 26
Improved roads and vehicles can contribute significantly to increased highway safety. Technological improvements include raised lane markers, which are easier to see and also emit a startling sound when a tire wanders over them. Similarly corrugations along the edges of roads emit a sound when driven over, thus alerting inattentive drivers to their inappropriate location. Wider roads, improved street and highway lighting, break-away sign posts, brake lights positioned at eye level, door crash bars, and many other improvements can save lives and be cost-effective.

THE SOLUTION
Drunk driving, like most other social problems, resists simple solutions. However, there are a number of actions, each of which can contribute toward a reduction of the problem:
DWI courts, sometimes called DUI courts, sobriety courts, wellness courts or accountability courts have proven effective in reducing the crime of drunken driving (driving while intoxicated or while impaired). Such courts address the problem of hard-core repeat offenders by treating alcohol addiction or alcoholism. The recidivism or failure rate of DWI courts is very low. 4
Automatic license revocation appears to be the single most effective measure to reduce drunk driving. 5
Automatic license revocation along with a mandatory jail sentence appears to be even more effective than just automatic license revocation. 6
Impounding or confiscating license plates. 7
Mandating the installation of interlock devices that prevent intoxicated persons from starting a vehicle. 8
Vehicle impoundment or immobilization. 9
Expanding alcohol server training programs. 10
Implementing social norms programs that correct the misperception that most people sometimes drive under the influence of alcohol. 11
Passing mandatory alcohol and drug testing in fatal crashes would promote successful prosecution of drunk and drugged drivers. The National Highway Traffic Safety Administration has estimated that 18-20% of injured drivers are using drugs and although drinking is on the decline, drugging is on the increase. However, this figure appears to be much too low. For example:
A study of drivers admitted to a Maryland trauma center found that 34$ tested positive for drugs only, while 16% tested positive for alcohol only. 12
A study by the Addiction Research Foundation of vehicle crash victims who tested positive for either legal or illegal substances found that just 15% had consumed only alcohol. 13
In a large study of almost 3,400 fatally injured drivers from three Australian states, drugs other than alcohol were present in 26.7% of the cases. Fewer than 10% of the cases involved both alcohol and drugs. 14
NIDA’s Monitoring the Future survey indicated that in 2004, 12.7% of high school seniors in the U.S. reported driving under the influence of marijuana and 13..2% reported driving under the influence of alcohol in the two weeks prior to the survey. 15
In the State of Maryland’s Adolescent Survey, 26.8% of the state’s licensed, 12th grade drivers reported driving under the influence of marijuana during the year before the survey. 16
MADD Canada is to be commended for recognizing this serious but generally unrecognized problem and including the reduction of drugged driving as a major goal. Of course, fighting drugged driving must not detract us from working to reduce drunken driving.

THE FACTS
Most drivers who have had something to drink have low blood alcohol content or concentration (BAC) and few are involved in fatal crashes. On the other hand, while only a few drivers have BACs higher than .15, a much higher proportion of those drivers have fatal crashes.
The average BAC among fatally injured drinking drivers is .16 1
The relative risk of death for drivers in single-vehicle crashes with a high BAC is 385 times that of a zero-BAC driver and for male drivers the risk is 707 times that of a sober driver, according to estimates by the Insurance Institute for Highway Safety (IIHS). 2
High BAC drivers tend to be male, aged 25-35, and have a history of DWI convictions and polydrug abuse. 3

THE PROBLEM
Every single injury and death caused by drunk driving is totally preventable. Although the proportion of crashes that are alcohol-related has dropped dramatically in recent decades, there are still far too many such preventable accidents. Unfortunately, in spite of great progress, alcohol-impaired driving remains a serious national problem that tragically effects many victims annually.
It's easy to forget that dry statistics represent real people and real lives. Therefore, this page is dedicated to the memory of one randomly-selected victim of a drunk driver,

Drinking & Driving
Driving while either intoxicated or drunk is dangerous and drivers with high blood alcohol content or concentration (BAC) are at greatly increased risk of car accidents, highway injuries and vehicular deaths. Possible prevention measures examined here include establishing DWI courts, suspending or revoking driver licenses, impounding or confiscating vehicle plates, impounding or immobilizing vehicles, enforcing open container bans, increasing penalties such as fines or jail for drunk driving, and mandating alcohol education. Safety seat belts, air bags, designated drivers, and effective practical ways to stay sober are also discussed.

Vehicle

"Vehicle" is defined as “every device in, upon or by which any person or property is or may be transported or drawn upon a highway, including any frame, chassis or body of any vehicle or motor vehicle, except devices moved exclusively by human power or used exclusively upon stationary rails or tracks.” §66-1-4.19(B). "Highway" means “every way or place generally open to the use of the public as a matter of right for the purpose of vehicular travel, even though it may be temporarily closed or restricted for the purpose of construction, maintenance, repair or reconstruction.” §66-1-4.8(B).

“Motor vehicles,” which are a subset of vehicles, are defined as "every vehicle that is self-propelled and every vehicle that is propelled by electric power obtained from batteries or from overhead trolley wires, but not operated upon rails. §66-1-4.11(I).

The term “vehicle” in §66-8-102 should be interpreted in accordance with legislative intent. State v. Saiz, 2001-NMCA-035, ¶ 2. The purpose of §66-8-102 "is to prevent individuals who, either mentally or physically, or both, are unable to exercise the clear judgment and steady hand necessary to handle a vehicle with safety both to the individual and the public." State v. Richardson, 113 N.M. 740, 742 (Ct. App. 1992).

The DWI statute “is not expressly limited to a type of vehicle with a particular function--all vehicles are included." Richardson at 741. The definition of vehicle does not require that it be primarily, regularly or frequently used on a highway, but rather that it may be lawfully used on a highway.

Therefore, “vehicle” includes:

• Farm tractors. Richardson at 742 ("no one would argue that a farm tractor suddenly veering into oncoming traffic on a highway would be any less dangerous than an automobile operated in the same manner").

• Mopeds. Saiz, 2001-NMCA-035, ¶ 5 (“a moped operated irresponsibly could endanger other traffic on the road”).

Note on Snowmobiles, All-Terrain Vehicles and Off-Highway Motorcycles:
The New Mexico statutes contain the “Off-Highway Motor Vehicle Act,” §66-3-1001 to §66-3-1-1020. Within that Act, under §66-3-1010.3(A)(2), it provides that “[a] person shall not operate an off-highway motor vehicle while under the influence of intoxicating liquor or drugs as provided by Section 66-8-102….” “Off-highway motor vehicle” is defined as being a snowmobile, an all-terrain vehicle or an off-highway motorcycle. §§66-3-1001.1(D)(1)(2)(3). Thus, it appears that DWI charges can be brought against persons operating either a snowmobile, all-terrain vehicle or an off-highway motorcycle in a manner in which they are intended to be driven while allegedly under the influence.

Drive

“Drive” is not defined in the DWI statute. New Mexico courts have ruled that the term “drive” in §66-8-102 means either driving or being in actual physical control of a vehicle. The vehicle does not need to be in motion.

In Boone v. State, 105 N.M. 223 (1986), the Supreme Court upheld a DWI conviction against a defendant who was discovered in the driver’s seat of his car, stopped in a traffic lane late at night with the engine running and the lights off. The court held that “the offense of DWI under Section 66-8-102 does not require motion of the vehicle; the offense is committed when a person under the influence drives or is in actual physical control of a motor vehicle or exercises control over or steers a vehicle being towed.” Boone at 224. The court reached this conclusion by using the definition of “driver” in §66-1-4.4(K) of the Motor Vehicle Code.

A person is in “actual physical control” over a vehicle when he or she exercises direct influence over the vehicle. The purpose of the "actual physical control" element “is to deter persons from placing themselves in a situation in which they can directly commence operating a vehicle while they are intoxicated, regardless of the location of the vehicle.” State v. Johnson, 2001-NMSC-001, ¶ 19.

Examples of “actual physical control” of a vehicle under the DWI statute include:

• Defendant was in the driver’s seat of a parked car with the engine running and a large pool of condensation under the exhaust pipes, indicating the car had possibly been at the location for three hours. State v. Johnson, 2001-NMSC-001, ¶ 3.

• Defendant was in the driver’s seat of a parked truck, with the key in the ignition and the engine not running. State v. Johnson, 2001-NMSC-001, ¶ 2 (facts of State v. Wenger, consolidated with Johnson).

• Defendant was passed out in the driver's seat of his vehicle with the engine running. State v. Grace, 1999-NMCA-148, ¶¶ 12-13.

• Defendant was found unconscious or asleep at the wheel of his car in the front yard of his house with the car's engine running. State v. Rivera, 1997-NMCA-102, ¶¶ 2-5.

• Defendant was asleep at the wheel in a parked vehicle that was inoperable, with the key in the ignition and the engine not running. State v. Tafoya, 1997-NMCA-083, ¶¶ 2-5.

• Defendant was discovered passed out at the wheel of a car with the engine running, even though the tires were blocked. State v. Harrison, 115 N.M. 73, 74 (Ct. App. 1992).

• Defendant was discovered in the driver's seat of his car, stopped in a traffic lane at night with the engine running but the lights off. Boone v. State, 105 N.M. 223, 224 (1986).

The jury instructions on the essential elements of DWI require proof beyond a reasonable doubt that “the defendant operated a motor vehicle.” UJI Criminal 14-4501, 14-4502, 14-4503, 14-4506, 14-4507, 14-4508, 14-4509. UJI-Criminal 14-4511, an instruction on operating or driving a motor vehicle, states that a person is “operating” a motor vehicle if the person is:

• Driving the motor vehicle; or

• In actual physical control, whether or not the vehicle is moving; or

• Exercising control over or steering a vehicle being towed by a motor vehicle; or

• Operating an off-highway motor vehicle; or

• In actual physical control of an off-highway motor vehicle, whether or not the vehicle is moving.

The defendant’s statements may be used to prove that he or she was the driver. State v. Greyeyes, 105 N.M. 549, 552 (Ct. App. 1987). Typically, such statements are introduced by the prosecution in situations, for example, where law enforcement comes upon a vehicle where two or more alleged occupants are already outside of the vehicle and therefore the officer did not observe anyone in the driver’s seat.

Drugs

“Drug" is not defined in the DWI statute. The Controlled Substances Act defines “drug” as “substances recognized as drugs in the official United States pharmacopoeia, official homeopathic pharmacopoeia of the United States or official national formulary or any respective supplement to those publications. It does not include devices or their components, parts or accessories.” §30-31-2(K).

Note that §66-8-102(B) refers to being under the influence of “any drug.” This includes both illegal and legal (prescription and over-the-counter) drugs. Some law enforcement agencies have officers with specialized drug recognition training. According to the Drug-Impaired Driving Fact Sheet prepared by the Scientific Laboratory Division of the New Mexico Department of Health:

Drug effects can vary between individuals. The effects are influenced by history of drug use (chronic or naïve user), tolerance, overall health, individual sensitivity to the drug, metabolism and other factors. Many drugs, especially those that affect the central nervous system, can impair driving. These include illicit drugs, as well as therapeutic and over-the-counter medications. Many therapeutic drugs that are available with or without a prescription can have unwanted side effects that impair driving performance.

Illicit, therapeutic and over-the-counter drugs can impair driving performance.

Drug-Impaired Driving Fact Sheet, p. 2, Appendix D.1 (PDF:54k).

Intoxicating Liquor

“Intoxicating liquor” is not defined in the DWI statute. The Motor Vehicle Code defines "alcoholic beverages" as “any and all distilled or rectified spirits, potable alcohol, brandy, whiskey, rum, gin, aromatic bitters or any similar alcoholic beverage, including all blended or fermented beverages, dilutions or mixtures of one or more of the foregoing containing more than one-half percent alcohol but excluding medicinal bitters.” §66-1-4.1(D).

DWI Elements Common to All DWI Offenses

The DWI offenses have many common elements, such as “under the influence” or “intoxicating liquor.” These elements have the same meaning in each type of DWI offense, e.g. “under the influence” means the same in §66-8-102(A) as it does in §66-8-102(D)(2). The elements common to all DWI offenses are explained below.

Under the Influence

"Under the influence" is not defined in the DWI statute. From case law, it means that as a result of consuming intoxicating liquor and/or drugs, the defendant was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the defendant and the public. State v. Sanchez, 2001-NMCA-109, ¶ 6. The same definition is used in UJI Criminal 14-4501 (DWI) and UJI Criminal 14-243 (vehicular homicide).

Aggravated DWI: Driving Under the Influence of Intoxicating Liquor or Drugs and Refusing to Submit to Chemical Testing, §66-8-102(D)(3) - Elements

See UJI Criminal 14-4508 for an instruction on the essential elements of this offense. UJI Criminal 14-4509 is an instruction on all three types of aggravated DWI for use when the evidence supports more than one of the ways in which aggravated DWI can be committed.

Section §66-8-102(D)(3) makes it unlawful for:

• Any person

• Who is under the influence

• Of intoxicating liquor or drugs

• To drive

• A vehicle

• Within this state

• And refuse to submit to chemical testing.

Aggravated DWI: Driving Under the Influence of Intoxicating Liquor or Drugs and Causing Bodily Injury, §66-8-102(D)(2) - Elements

See UJI Criminal 14-4507 for an instruction on the essential elements of this offense. UJI Criminal 14-4509 is an instruction on all three types of aggravated DWI for use when the evidence supports more than one of the ways in which aggravated DWI can be committed.

Section §66-8-102(D)(2) makes it unlawful for:

• Any person

• Who is under the influence

• Of intoxicating liquor or drugs

• To drive

• A vehicle

• Within this state

• And as a result cause bodily injury to a human being.

"Bodily injury" is defined as “an injury to a person that is not likely to cause death or great bodily harm to the person, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the person's body.” §66-8-102(T)(1). This may include injuries to the driver of the vehicle.

Aggravated DWI: Driving Under the Influence of Intoxicating Liquor or Drugs and Causing Bodily Injury, §66-8-102(D)(2) - Elements

See UJI Criminal 14-4507 for an instruction on the essential elements of this offense. UJI Criminal 14-4509 is an instruction on all three types of aggravated DWI for use when the evidence supports more than one of the ways in which aggravated DWI can be committed.

Section §66-8-102(D)(2) makes it unlawful for:

• Any person

• Who is under the influence

• Of intoxicating liquor or drugs

• To drive

• A vehicle

• Within this state

• And as a result cause bodily injury to a human being.

"Bodily injury" is defined as “an injury to a person that is not likely to cause death or great bodily harm to the person, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the person's body.” §66-8-102(T)(1). This may include injuries to the driver of the vehicle.

Aggravated DWI: Driving with an Alcohol Level (BAC) of .16 or Higher, §66-8-102(D)(1) - Elements

See UJI Criminal 14-4506 for an instruction on the essential elements of this offense. UJI Criminal 14-4509 is an instruction on all three types of aggravated DWI for use when the evidence supports more than one of the ways in which aggravated DWI can be committed.

Section §66-8-102(D)(1) makes it unlawful for:

• Any person

• With an alcohol concentration of .16 or more in the person’s breath or blood

• To drive

• A vehicle

• Within this state.

Driving Under the Influence of Intoxicating Liquor, §66-8-102(A) (“Impaired to the Slightest Degree” DWI) - Elements

See UJI Criminal 14-4501 for an instruction on the essential elements of this offense.

Section §66-8-102(A) makes it unlawful for:

• Any person

• Who is under the influence

• Of intoxicating liquor

• To drive

• A vehicle

• Within this state.

1.2.3 Driving Under the Influence of a Drug, §66-8-102(B) (“Impaired to the Slightest Degree” DWI) - Elements

See UJI Criminal 14-4502 for an instruction on the essential elements of this offense.

Section §66-8-102(B) makes it unlawful for:

• Any person

• Who is under the influence

• Of any drug

• To a degree that renders the person incapable of safely driving a vehicle

• To driv

• A vehicle

• Within this state.

1.2.4 Driving with a Specific Alcohol Level, §66-8-102(C) (“Per se” or “BAC” DWI) - Elements

Drivers of Non-Commercial Vehicles:

See UJI Criminal 14-4503 for an instruction on the essential elements of this offense.

Section §66-8-102(C)(1) makes it unlawful for:

• Any person

• With an alcohol concentration of .08 or more in the person’s breath or blood

• To drive

• A vehicle

• Within this state.

Drivers of Commercial Vehicles:

Section §66-8-102(C)(2) makes it unlawful for:

• Any person

• With an alcohol concentration of .04 or more in the person’s breath or blood

• To drive

• A commercial vehicle

NOTE: “Commercial motor vehicle" is defined as “a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:
(a) has a gross combination weight rating of more than twenty-six thousand pounds inclusive of a towed unit with a gross vehicle weight rating of more than ten thousand pounds;
(b) has a gross vehicle weight rating of more than twenty-six thousand pounds;
(c) is designed to transport sixteen or more passengers, including the driver; or
(d) is of any size and is used in the transportation of hazardous materials, which requires the motor vehicle to be placarded under applicable law.” §66-8-102(T)(2).

• Within this state.

Statutory Presumptions Applicable to DWI Offenses

The Implied Consent Act sets forth several presumptions based on a driver’s alcohol concentration level. A “presumption” is defined as being “an assumption of fact that the law requires to be made from another fact or group of facts….” Black’s Law Dictionary, 5th Edition. A presumption works in the following manner: if certain facts are presented to the court, it must then assume the existence of other facts resulting from them.

The Implied Consent Act, in §66-8-110(B), provides the following presumptions:

• Alcohol level of less than .04: It shall be presumed that the person was not under the influence of intoxicating liquor.

• Alcohol level of at least .04 but less than .08: No presumption shall be made that the person either was or was not under the influence of intoxicating liquor, unless the person was driving a commercial motor vehicle. However, the amount of alcohol in the person's system may be considered with other relevant evidence in determining whether the person was under the influence of intoxicating liquor.

• Alcohol level of .04 or more and the person was driving a commercial vehicle: It shall be presumed that the person was under the influence of intoxicating liquor.

The first two presumptions can be overcome by the prosecution in its efforts to prove its case beyond a reasonable doubt. Specifically, those presumptions can be overcome through the introduction of competent (relevant, believable, persuasive) evidence relating to whether the motorist was under the influence of intoxicating liquor. §66-8-102. For example, that evidence may include the signs of intoxication the driver exhibited, the manner in which the driver was observed operating his or her vehicle, any admissions made by the driver to alcohol consumption and performance on Field Sobriety Tests. As with all criminal offenses, evidence that is relevant to the elements of an offense can be admitted and considered in accordance with the Rules of Evidence

DWI Offenses - Generally

DWI offenses fall within the following general categories of behavior:

• driving while impaired by alcohol or drugs (also known as “impaired to the slightest degree,” “simple impairment,” or “simple” DWI); or

• driving with a specific statutorily prohibited level of alcohol regardless of demonstrable effect (also known as “per se” or “BAC” DWI); or

• driving while impaired by alcohol or drugs and committing certain additional actions (also known as “aggravated” DWI).

There are three “basic” (i.e. non-aggravated) DWI offenses and three aggravated DWI offenses. The aggravated offenses are based on the same elements as the basic DWI offenses, but involve additional behaviors or actions that are considered to be more egregious and hence subject to greater punishment. What specific DWI offense a motorist is charged with is determined by law enforcement and/or the prosecution based on the facts of the case, the DWI statute or ordinance and, on occasion, case law.

In cases where a motorist submits to either breath or blood testing, or both, the term “BAC” is commonly used by the judge, prosecution, defense and law enforcement as shorthand for the specific alcohol concentration either of those testing methods revealed. For example, the driver’s breath test revealed a BAC of .11. For breath tests, the alcohol concentration is determined by the testing equipment in grams of alcohol in 210 liters of breath, and for blood tests, the alcohol concentration is determined in the analysis by grams of alcohol in 100 milliliters of blood. §66-8-110(E).

The basic DWI offenses are:

• Driving under the influence of alcohol. §66-8-102(A).

• Driving under the influence of drugs. §66-8-102(B).

• Driving with a blood or breath alcohol level of .08 or higher, or .04 or higher when driving a commercial vehicle. §66-8-102(C).

The aggravated DWI offenses are:

• Driving with a blood or breath alcohol level of .16 or higher. §66-8-102(D)(1).

• Driving under the influence of alcohol or drugs and causing bodily injury to a human being as a result. §66-8-102(D)(2).

• Driving under the influence of alcohol or drugs and refusing to submit to chemical testing (breath and/or blood). §66-8-102(D)(3).

Overview

The crime of driving while intoxicated (DWI) involves operation of a vehicle by a person who has consumed a sufficient quantity of alcohol or drugs to affect the person’s ability to manage the vehicle safely, either demonstrably (by proof of impaired driving) or on a per se basis (by proof of a prohibited specific alcohol concentration level). §66-8-102. As the Supreme Court stated in State v. Johnson, 2001-NMSC-001, ¶ 17:

The purpose of our DWI legislation is to protect the public from the risk of harm posed by intoxicated drivers. … The policy underlying the DWI statute is to prevent individuals from driving or exercising actual physical control over a vehicle when they, either mentally or physically, or both, are unable to exercise the clear judgment and steady hand necessary to handle a vehicle with safety both to themselves and the public. In fact, the public interest and potential harm posed by intoxicated drivers is so compelling that the offense of DWI is a strict liability crime. (internal quotations and citations omitted)

Under the Implied Consent Act, §66-8-105 through §66-8-112, anyone who operates a motor vehicle in New Mexico is deemed to have given consent to breath and/or blood chemical tests if arrested for DWI. §66-8-107(A). The test results may then be introduced into evidence in any civil or criminal action arising out of the acts allegedly committed by the person tested. §66-8-110(A).

The Implied Consent Act is also the basis for revoking drivers’ licenses administratively in a separate non-judicial action. The Act provides a series of revocation penalties for refusing to take the chemical test(s) or for driving with a breath and/or blood alcohol level over the legal limit. §66-8-111. (See Chapter 3 for a more detailed explanation of the Implied Consent Act and Chapter 4 for a more detailed discussion on Implied Consent driver’s license revocation.)

Austin DWI Lawyer

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