Still driving drunk: strict drunk driving laws don't do much good unless they are vigorously enforced.

In the time it takes to read this article, one person will be killed and 15 injured by drunk drivers. Impaired drivers killed more than 17,000 and injured more than 258,000 people in the United States in 2002, and the problem is getting worse.

After years of steady decline in the percentage of traffic deaths attributable to alcohol, fatalities have increased for the third year in a row, up from a low of 38 percent in 1999 to nearly 42 percent in 2002. Over their lifetime, one in four families will be affected by a drunk driver.

One of those families is Bill Elliott's. His son John, a new graduate of the U.S. Naval Academy, was on his way home to celebrate his mother's birthday when he was killed by a drunk driver. Michael Pangle had already been arrested for drunk driving that night and released to the custody of a friend. Instead of taking Pangle home, the "friend" returned him to his car. Pangle drove to another bar, drank some more and got behind the wheel again. He hadn't gone far when he hit John Elliott's car. Both were killed.

TURNING GRIEF TO ACTION

Bill Elliott's family turned their sorrow into action, working with the New Jersey Legislature to pass laws in 2001 and again this year. Under "John's Law," police are required to impound the vehicle of arrested drunk drivers for as long as 12 hours or until they are sober enough to drive. Officers must warn anyone coming to pick up a drunk driver that they have a potential liability if their friend gets back behind the wheel.

Though the Elliotts were gratified to get that much into law, they continued to fight for a stronger measure, one that would require police to detain arrested drunk drivers, not just their cars.

"John's Law II," signed by the governor in August, permits local governments to require that arrested drunk drivers be held in protective custody for eight hours or until their blood alcohol content (BAC) level has dropped below .05.

"This is a common sense step municipalities can take to save more people from tragically losing their lives at the hands of drunk drivers," says Assemblyman John Burzichelli.

Bill Elliott says John's Law II fulfills "the promise we made to our son when we said our final good-byes."

New Jersey joins eight other states with detainment laws, but it is the only one to give authority to local governments. Whether done at the state or local level, any law that gives police the ability they need to keep drunk drivers off the road while they are still a threat will save lives and make the system work better.

IT'S TIME FOR A NEW FOCUS

Drunk driving laws have never been stricter. Almost every state has already adopted basic drunk driving laws: .08 BAC, administrative license revocation, implied consent, open container, repeat offender and zero tolerance for underage drunk driving. Many have gone further, creating high BAC offenses, enhancing penalties for those who drive drunk with kids in the car or requiring ignition interlocks. But how those laws are implemented through arrest, prosecution, adjudication and punishment is what makes the difference.

TOO MANY BREATH TEST REFUSALS

All states have adopted implied consent, which requires a person pulled over on suspicion of drunk driving to submit to a BAC test. Drivers who fail the test are charged with drunk driving; those who refuse have their license suspended. Police and prosecutors get the evidence they need to determine if a driver is impaired. In theory, it's a good law. In practice, it's not working so well.

Refusal rates vary, but on average, close to one-third of drivers pulled over decline to be tested. Why? Because in most states, refusing the test results only in a suspended license. Failing the test means offenders not only lose their license, they also face a drunk driving conviction, fines and potential jail time. Their auto insurance jumps, their job can be in jeopardy, and they will now have a prior offense if they are ever picked up for drunk driving again. Of course they refuse.

Even if the driver is arrested on other evidence, such as failing standard field sobriety tests, the single most important piece of evidence is missing. That makes it harder for police to charge the driver and more difficult for a prosecutor to convict, because juries want to know how drunk the person was. Without BAC test results, offenders are more likely to be charged with lesser offenses, receive plea bargains, see charges dropped or even be acquitted. And the incident will never show up on their driver's record as a prior drunk driving offense.

Implied consent laws are good, but it's how the penalties have been imposed that makes them less effective. How do states fix that? At least 11 have created a separate criminal offense for refusing to take a breath test or have penalties equal to a drunk driving conviction. By removing the incentive to refuse, lawmakers help police and prosecutors gather the necessary evidence to make arrests and convict drunk drivers.

DEFENDANTS DISAPPEAR

The system also breaks down at the trial and sentencing phases. If offenders don't show up for trial, a warrant is issued for failure to appear. But people on warrants are seldom tracked down. Unless a drunk driver is involved in another crime, he can avoid prosecution almost indefinitely. Offenders avoid trial, conviction, punishment and treatment because the system is simply too complex and overloaded to find them. And many offenders know that.

Repeat offenders in particular work the system. Dealing with them is particularly vexing. At least a third of all drunk drivers have been arrested before. And unless their underlying substance abuse problems are addressed, punishment alone is often ineffective. At least 36 states require treatment for convicted drunk drivers, but there is no guarantee that they actually participate or that the treatment is effective.

MAJOR PROBLEMS IN THE DRUNK DRIVING SYSTEM

Police, prosecutors, judges and corrections officers encounter common
problems in dealing effectively with drunk drivers:

Problem                         Police    Prosecutors

Excessive paperwork               *
Excessive caseload
Test refusal                      *            *
Inadequate access to records      *            *
Incomplete evidence               *            *
Failure to appear                 *            *
Trial delays                                   *
Disparity in sentences                         *
Inadequate training               *            *
Defying sanctions/orders
Inadequate resources              *

Problem                         Judges    Corrections

Excessive paperwork                            *
Excessive caseload                *            *
Test refusal
Inadequate access to records      *            *
Incomplete evidence
Failure to appear                 *
Trial delays                      *
Disparity in sentences            *            *
Inadequate training
Defying sanctions/orders          *            *
Inadequate resources                           *

Source: DWI System Improvements for Dealing with Hard Core Drinking
Drivers, a four-part study conducted by the Traffic Injury Research
Foundation. For the complete study in which police, prosecutors, judges
and corrections officers ranked problems in order of priority, call
[phone] or go to www.trafficinjuryresearch.com/index.cfm.

DRUNK DRIVING COURTS PROMISING

A small number of jurisdictions are using specialized drunk driving courts to address chronic alcohol problems more effectively and cut down on recidivism. These courts are similar to drug courts and ensure that offenders complete their sentences and treatment. Offenders meet regularly with their probation officer, participate in substance abuse or alcohol counseling, submit to tests, make regular court appearances and attend meetings with victims.

Many of those sanctions are similar to the sentences handed out by regular courts; the difference lies in the close supervision, regular contact, random testing, life skills support and job placement services provided by the specialized courts. Those who wash out of the programs face additional punishment--often jail time--if all terms of the sentence are not fulfilled.

Specialized drunk driving courts are in use in at least seven states--Arizona, California, Indiana, New Mexico, North Carolina, Oklahoma and Virginia.

UNDERSTAND AND FIX THE SYSTEM

The day-to-day problems police, prosecutors, judges and corrections officers face in dealing with drunk drivers are covered in detail in a recent study, "DWI System Improvements for Dealing with Hard Core Drinking Drivers," conducted by the Traffic Injury Research Foundation through a grant from the Anheuser-Busch Corporation.

The four-part report looks at how the drunk driving process works, from enforcement to adjudication to sentencing; it is an excellent resource for state lawmakers. "It's time for a new era" in combating drunk driving, says Herb Simpson, who heads the Canadian-based foundation. "We need to do a better job of providing police, prosecutors, judges and probation officers with the tools and techniques to make the system perform as it should."

States have done a good job in adopting basic drunk driving standards and some have gone beyond the basics to adopt truly innovative and aggressive laws. Now it's time to make sure that the system works smoothly and effectively in implementing those laws. To do that, some states are involving police, prosecutors, judges, corrections and treatment officers to better understand how the process works and what is needed to make it work better.

Drunk driving courts

A good example of a drunk driving court is in Bernalillo County, N.M. The program is designed to reduce recidivism by combining traditional drunk driving penalties with treatment and life skills training. Highlights include:

* Regular contact with a probation officer.

* Frequent court appearances before the drunk driving court judge.

* Subsidized treatment.

* Individual and group counseling.

* Random drug and alcohol tests.

* Education assistance.

* Employment skills training.

* Job placement assistance.

The program is voluntary. But an offender who fails to comply with any aspect of the program faces jail time and increased treatment and must start over in the program. The Bernalillo County Metropolitan DWI/Drug Court is supported by funding from the National Highway Traffic Safety Association. For more information, visit www.aca-usa.org/ bernalillo.htm and www.nhtsa.dot.gov/people/ outreach/safedige/Spring2001/sp01-17.html

FEDERAL GRANTS

There may be money for state drunk driving programs in the re-authorization of TEA-21, now being debated in Congress. The Bush administration's plan for the new SAFETEA (Safe, Accountable, Flexible and Efficient Transportation Equity Act of 2003) contains $150 million in grants to prevent impaired driving. The best news--there are no strings attached. The bad news--states that have done a good job in reducing fatalities aren't eligible for the money.

If Congress approves, the money will be made available from 2004 to 2009 to states with the highest percentages of drunk driving fatalities.

The funds can be used for:

* Identifying sources of the problem.

* Developing programs to address the problem.

* Carrying out programs and evaluating the results.

For more information, visit www.fhwa.dot.gov/reauthorization/ safetkeyinfo.htm#ast

STATE DRUNK DRIVING LAWS

State drunk driving laws are a complex series of standards, procedures and penalties that include:

* Illegal per se (.08).

* Drug use in the per se offense.

* Revoking licenses.

* Higher BAC offense or penalties.

* Sobriety checklanes.

* License suspension for refusing breath test.

* Penalties including jail, fines and license suspension.

* Stricter penalties for repeat offenders.

* Mandatory alcohol assessment and treatment.

* Vehicle impoundment and forfeiture.

* Ignition interlocks.

* Enhanced penalties for causing death or injury.

* Mandatory BAC tests in accidents.

* Stiffer penalties for driving drunk with a child in the car.

Jeanne Mejeur is NCSL's expert on drunk driving laws.