SENTENCING; DRUNK DRIVING; ALCOHOL/DRUG EDUCATION;

SENTENCING - ALTERNATIVE SANCTIONS; DRUNK DRIVING;

You asked the following questions about Connecticut’s pre-trial alcohol education program for drunk driving offenders:

1. who is responsible for administering the program?

2. is there any mechanism for evaluating its effectiveness? and

3. which agency is responsible for monitoring the program’s effectiveness and making recommendations to improve it?

You also asked (1) whether other states have similar programs, and if so, what are their recidivism rates and (2) have there been any proposals in Connecticut to increase the penalty for refusing to submit to an alcohol test in the case of repeat offenders. Your questions were in part based on a recent article in the Waterbury Republican American.

SUMMARY

The pre-trial alcohol education program is administered by the Department of Mental Health and Addiction Services (DMHAS) and is delivered by 12 providers under contract to the department. The court system and the Department of Motor Vehicles (DMV) are also involved. There is currently no mechanism for evaluating the program’s

effectiveness, and there are not readily available data that would permit a determination of the recidivism rate of drivers who participate in the program. No agency is charged with monitoring the program’s effectiveness and making recommendations to improve it.

While most states have alcohol education programs for people arrested for driving while intoxicated (DWI), in most cases these programs are fundamentally different than Connecticut’s program. Connecticut is unusual in allowing drivers who successfully complete the program to avoid all criminal sanctions. In other states, successful program completion generally reduces, but does not eliminate, the sanctions that apply to a driver. According to the National Highway Traffic Safety Administration, the states whose programs are most similar to Connecticut’s are Indiana and New Mexico, but even these programs have significant differences with Connecticut’s program. In New Mexico, approximately 45% of all DWI arrests are for second or subsequent offenses. We were unable to find any recidivism data for Indiana, or any recidivism data from any jurisdiction that could be used to determine the effectiveness of alcohol education programs.

The legislature has passed three acts since 1990 increasing penalties for people who refuse to submit to alcohol tests, most notably PA 99-255, which increased penalties for second and subsequent refusals.

CONNECTICUT’S PRE-TRIAL ALCOHOL EDUCATION PROGRAM

Eligibility Standards

By law, persons charged with driving under the influence (CGS § 14-227a) or, in the case of a person under age 21, driving with a blood alcohol content (BAC) over . 02% (CGS § 14-227g) can apply for the program. A person charged with violating CGS § 14-227a is ineligible to participate in the program if he has participated in the program in the past 10 years. A person charged with violating CGS § 14-227g is ineligible if he has ever participated in the program.

A person charged with either crime is ineligible if he has ever been convicted of a prior DWI charge, manslaughter in the second degree with a motor vehicle, or assault in the second degree with a motor vehicle, or comparable crimes in other states. He is also ineligible, except for good cause shown, if his alleged violation of the drunk driving laws caused a serious physical injury to another person.

Program Requirements

The court, after considering the recommendation of the state’s attorney’s office, can grant the application. Applications are granted in approximately 90% of the cases according to DMHAS staff. If the court grants the application, it must consult with the Court Support Services Division, which must verify that the driver is eligible for the program. The court must refer the driver to DMHAS for evaluation. The evaluation is conducted by one of 12 provider agencies under contract with DMHAS. The provider recommends that the driver participate in the level 1 program (15 hours over 10 weeks) of level 2 program (22. 5 hours over 15 weeks), based on the driver’s history and other factors. The court is not bound by the provider’s recommendation, and can order additional measures, such as participation in a detoxification program. The Court Support Services Division must retain a record of participation in the program for seven years from the date of application.

Results of Program Completion or Non-completion

If the driver successfully completes the program, he can apply for a dismissal of charges and the court, upon finding that he has successfully completed the course must dismiss the charges. The court can also dismiss the charges on its own initiative if the driver successfully completes the course but does not apply for dismissal. The Court Support Services Division must transmit a record of successful completion to DMV, which must retain the record for seven years as part of the person’s driving record.

If the Court Support Services Division determines that a driver is ineligible to participate in the program or the driver does not successfully complete the course, a plea of not guilty is entered on his behalf and the case is placed on the trial list.

As a result of these provisions, under Connecticut law a first DWI conviction can be for someone who (1) was previously arrested for DWI who successfully completed the pre-trial program but then is subsequently re-arrested for another DWI offense or (2) is arrested for the first time but is ineligible for or does not complete the program.

Program Effectiveness

The law does not provide any mechanism to determine the program’s effectiveness. Nor does the law require any agency to monitor the program’s effectiveness and make recommendations to improve it.

Prior to the mid 1990s, DMHAS was able to calculate recidivism rates for program participants by merging its database with DMV driving history computer files, using the participant’s driver’s license number as a link. However, in the late 1990s, relevant DMHAS and DMV staff retired and were not replaced and software changes made it impossible to merge the current and historical files. The driver history files do indicate prior participation in the program as well as subsequent DWI arrests and convictions, but new programs would have to be written to determine recidivism rates. As a result, it is not possible at this time to determine what proportion of drivers who participate in the program who are subsequently arrested for or convicted of DWI.

The article in the Republican-American presents data on participation in the program and DWI convictions, but these data cannot be used to estimate the recidivism rate for program graduates. The article notes between 1999 and 2002 there were 24,725 people accepted into the program and 20,578 total DWI convictions. It also notes that about 85% of total DWI convictions were first convictions, which would mean that there were approximately 18,500 first convictions between 1999 and 2002. The data indicate while the number of people accepted into the program and the number of people each year have varied over the past four years, the ratio between these numbers has been fairly constant.

However, this does not imply that the recidivism rate is approximately the same as this ratio, i. e. , 75% for the four-year period (18,500 divided by 24,725). The two sets of numbers discussed in the article refer to two different sets of people, and it is methodologically inappropriate to calculate a ratio based on these different populations. During any period, some graduates of the program will move out of state, die, or give up their driver’s licenses. Similarly, during the same period a certain number of people, who had not participated in the program, will move into the state or be newly licensed and subsequently be convicted of DWI. The longer the period of time being considered, the greater the disjuncture between the two populations will be.

In addition, the two sets of data discussed above do not include other key variables. The most important of these is average number of subsequent DWI convictions for people who graduate from the pre-trial program. For example, the following two scenarios will produce the same number of convictions but very different recidivism rates. In the first scenario, two thirds of program graduates are subsequently convicted once of DWI. In the second scenario, only one-third of graduates re-offend, but they have an average of two subsequent convictions. Even though the number of total convictions is the same, the recidivism rate in the first scenario is twice as high as the second.

SIMILAR PROGRAMS IN OTHER STATES

While most states have alcohol education programs for people arrested for DWI, most of these programs differ fundamentally from Connecticut’s. In many states, the program is only offered to drivers who plead guilty to DWI and thus are subject to criminal penalties. In many cases, successful completion of the program will reduce, but not eliminate the penalty. Even in states where a driver can enter the program without pleading guilty, there are often significant differences with Connecticut law. For example, in Massachusetts the court is not required to dismiss DWI charges of a driver who successfully completes the program while in Connecticut dismissal is mandatory. OLR memo 2002-R-0844 provides a detailed comparison of DWI law in Massachusetts and Connecticut.

According to a 2002 compendium produced by the National Highway Traffic Safety Administration (NHTSA), it appears that Indiana and New Mexico have alcohol education program provisions that are most comparable to Connecticut’s. But even these states’ programs have significant differences with Connecticut’s program. In Indiana, the courts must suspend the license of any person who participates in the program, even if he successfully completes it. (In Indiana, as well as Connecticut and most other states, drivers arrested for DWI face administrative license suspensions, as well as suspensions imposed following court proceedings. ) In New Mexico, unlike Connecticut, a person who completes the program but is subsequently convicted of DWI faces the penalties of a DWI second conviction.

In New Mexico, approximately 45% of all DWI arrests were for second or subsequent offenses in 2001, and this proportion has held relatively steady since at least 1994. We were unable to find recidivism data for Indiana.

Even if data were available, it would be problematic to compare recidivism rates or other indicators of program success across states. Each state has its own: (1) definition of what constitutes DWI, (2) requirements on how the charge must be proved, (3) sanctions that apply to people charged with DWI, and (4) eligibility requirements for participating in alcohol education programs. A 1999 NHTSA study found that there is “great diversity among and within jurisdictions in what is reported as their DWI conviction rate” and that “when comparisons are made between jurisdictions on this important issue, it may well be like comparing apples to oranges. ” The report is available on a NHTSA Website, http: //www. nhtsa. dot. gov/people/injury/research/dwiconviction/dwiconvictions. htm. Even if recidivism data were available, it would be difficult to determine how differences in alcohol education programs affect recidivism rates because of all of these other variables.

It is particularly difficult to compare recidivism rates between states over a period of several years. Most states, including Connecticut, have frequently amended their DWI laws. Among the most common changes were increased criminal and administrative penalties for DWI and reduced BAC standards for DWI offenses. While several of these measures, e. g. , lowering the DWI threshold to . 08% BAC, have been adopted in most states, states have adopted these measures at different times. This makes it difficult to disentangle the effect of these statutory changes from the effect of alcohol education programs on recidivism rates.

CONNECTICUT LEGISLATIVE PROPOSALS

PA 99-255 increased the penalty, under the state’s administrative per se law, for second and subsequent refusals to submit to an alcohol test. Under this law, a driver’s license must be suspended for refusing to take a test or taking the test and having a result that exceeds a certain level. The suspension is independent of any suspension imposed by the courts as a result of a DWI conviction. Prior to 1999, a driver who refused to take a test was subject to a six-month administrative suspension. Under the act, if a driver refused to take the test after previously having had his license suspended (either for refusing to take the test or exceeding the maximum allowed BAC), his license must be suspended for one year. A driver who refuses to take the test after two or more previous administrative suspensions is subject to a three-year license suspension.

PA 95-314 prohibited DMV from issuing a special "work only" driver's license to someone whose license has been suspended for refusing to take a test until at least 90 days of the mandatory six-month suspension have passed.

PA 90-233 established various licensing provisions affecting drivers of commercial vehicles, which include trucks with a registered weight over 26,000 pounds, vehicles carrying hazardous materials, and school buses. Under the act, a person is disqualified from driving such vehicles for one year if the DMV commissioner determines that he refused to take a blood alcohol test while driving such a vehicle. If he was driving a vehicle carrying hazardous materials, the disqualification is three years. A driver of any commercial vehicle who refuses to take the test two or more times must be disqualified from driving commercial vehicles for life.

While there have been many other bills dealing with DWI since 1990, it appears that none of them specifically addressed the issue of penalties for second or subsequent refusals to take a blood alcohol test.

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