D e s e r t E x p o s u r e
February 2010
Behind Bars
Mandatory jail for all first-time DWI offenders misses the target.
Once the national poster child for drunk driving, New Mexico has made impressive progress in reducing alcohol-related fatalities. According to state DWI czar Rachel O'Connor, deaths from alcohol-related accidents in New Mexico have dropped from nearly one per day in 2004 to 143 in 2008. It goes without saying that even one death caused by a drunk driver is too many — but continued progress in battling drunk driving requires picking the right targets.
That's where Gov. Bill Richardson's well-intentioned proposal, unveiled last August and promised for this year's legislative session, to require jail time for first DWI offenders goes awry. The governor would slap all convicted first-time drunk drivers in jail for a mandatory three days and levy $2,500 in fines.
The plan presents two obvious practical hurdles. First, at a time when the state as well as local governments are strapped for cash, how will we pay for the extra jail time (and potentially for building bigger jails)? Richardson says added money from higher DWI fines will help cover the costs — but legislators should demand details. Second, the threat of mandatory jail time will cause many people arrested for DWI for the first time to fight the charges in court, instead of taking a plea deal. This will clog already-overburdened courts, pull law-enforcement officers off the streets to testify, spiral up expenses, and likely lead to fewer first-time DWI convictions.
The flaw in Richardson's plan is that it treats all first-time drunk drivers equally. To some neo-prohibitionist zealots, there's no difference between a social drinker who had an extra glass of wine before getting behind the wheel and a hard-core alcoholic who's knocked back eight beers in an hour. (Yes, that's what a typical-weight man would need to drink to reach the average .16 blood-alcohol content of drunk drivers involved in fatal crashes.) Obviously, driving with a BAC of .08 is not only illegal but reckless. But texting while driving, speeding or driving drowsy are all dumb and reckless, too — and don't automatically land you in jail.
Anti-DWI activists like to toss around a lot of lazy statistics about first-time offenders. Mothers Against Drunk Driving (MADD) cites a study that first-time offenders on average drive drunk a whopping 87 times before being caught. But that figure is based on rough estimates from self-reported data in a 13-year-old survey that even the study's authors characterize as "crude." DWI czar O'Connor has stated that first-time offenders account for 60% or 70% of all alcohol-related crashes that kill or injure people. Yet MADD says "frequent drunk drivers are responsible for almost 60% of alcohol-related fatalities."
Turned on its head, that O'Connor statistic still suggests that we've already identified those responsible for 30% to 40% of such crashes, and perhaps should concentrate on keeping them off the road. Indeed, a driver with one or more DWI convictions is 40% more likely to become involved in a fatal crash than someone never convicted. And, nationally, drivers with a BAC of .08 or higher involved in fatal crashes were eight times more likely than other drivers in such crashes to already have been caught and convicted at least once for DWI. So why is the Richardson administration going after first-time offenders instead of working harder to deter proven drunk drivers?
As we pointed out in our in-depth report on the questionable effectiveness of DWI checkpoints ("Taking the Fourth," February 2005), the battle against drunk driving has taken a troubling turn. "We've already deterred all the social drinkers," according to Chuck Hurley, a spokesman for the National Safety Council, which advocates tougher laws against drunk driving. "We're now down to the hard core of people who drink and drive in spite of public scorn." That was echoed by then-MADD President Katherine Prescott, who described the problem as "a hard core of alcoholics who do not respond to public appeal."
It's no mystery who these drunk drivers are. Overwhelmingly, they're young (often underage) and male, and beer is by far their beverage of choice. Much like the debate over "profiling" in airline safety, it's foolish to fail to distinguish between the young guy with a .16 BAC and the grandma who tippled too much at dinner. (Two glasses of wine can put a 120-pound woman at or over the limit.) Both are breaking the law, but both are not equally dangerous — or equally likely to drive drunk over and over again.
The state's DWI Resource Center says such thinking represents "a myth put out by the alcoholic-beverage industry, which would rather have people think the social drinker is not a risk on the road." But here are the facts: In New Mexico in 2008, 68% of traffic fatalities in which a driver had a BAC above zero involved drunks with a BAC of .15 or greater. Those are not "social drinkers," and putting the state's alcohol-serving restaurants out of business won't take them off the road.
Not surprisingly, Richardson was joined in announcing his jail-time proposal by Laura Dean-Mooney, the state president of Mothers Against Drunk Driving. Since its founding by Candy Lightner after her daughter was killed by a drunk driver in 1980, MADD has done the nation an incalculable service in raising awareness about the dangers of DWI. Much of the progress the US and New Mexico have made against drunk driving is owed to MADD.
Unfortunately, some in the organization have changed their target from drunk driving to alcohol itself. MADD founder Lightner cited this switch in breaking ties with the group, saying it "has become far more neo-Prohibitionist than I had ever wanted or envisioned. I didn't start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving."
Critics who believe MADD has taken a wrong turn, despite its estimable record, point to lobbying by the organization for funding of in-car alcohol sensors that would prevent drivers from starting a car after even one drink. Such ignition-interlocks, it's hoped, would be installed in all new automobiles as a manufacturing requirement. In 2004, MADD called for mandatory provisions in separation agreements and divorce decrees that would yank away parental rights if either parent drove with children in the vehicle after taking even a single drink. A glass of wine with dinner out? You lose your kid.
Most dedicated anti-DWI volunteers don't ascribe to such extreme views, of course. But the fogging of the difference between "drinking and driving" and "drunk driving" hurts the cause of highway safety by similarly blurring the target of government anti-DWI initiatives. When Gov. Richardson blusters, "You drink, you drive, you lose," he's misstating. It's legal in New Mexico to have a glass of wine or a cocktail and then drive. It's not legal to drink too much and drive — or to drive recklessly for any other reason.
Instead of sending all first-time offenders to the slammer for three days, we need a graduated system of penalties that increase with the severity and frequency of the offense. Frankly, three days in jail isn't harsh enough for a first-time offender with a BAC of .15.