We have made much progress, though, in combating impaired driving in the United States. Since the mid-1970s, and as a consequence of efforts spearheaded by NHTSA and numerous nonprofit organizations, including AAA, Mothers Against Drunk Driving, and the Foundation for Advancing Alcohol Responsibility (Responsibility.org), among many others dedicated to improving roadway safety, policy and legislative changes addressing multiple facets of driving under the influence, education, targeted enforcement efforts, and changing public attitudes have effectuated a 35 percent national decrease in alcohol-related fatalities. Awareness campaigns on the dangers of impaired driving dramatically shifted public attitudes from complacency and apathy about alcohol-impaired driving to one that finds drinking and driving to be socially unacceptable and dangerous. In a recent survey, 94 percent of drivers reported they perceive driving after drinking as very or extremely dangerous, yet 7 percent of drivers admitted driving under the influence of alcohol in the past 30 days. Drivers, though, express different perceptions of the dangers of driving under the influence of cannabis. In the same survey, only 70 percent of responding drivers believed operating a motor vehicle within an hour of using marijuana to be very or extremely dangerous, and 6 percent of the respondents reported engaging in marijuana use within an hour of driving in the past 30 days.
Despite all of the progress in reducing impaired-driving–related deaths, much work remains to be done, particularly in educating judges and other criminal justice professionals in evidence-based practices that prove successful in combating driving under the influence of alcohol or drugs. NHTSA reports that 13,524 people died in the United States in 2022 as a result of alcohol-impaired driving, representing 32 percent of total roadway fatalities. Those numbers equate to 32 fatalities every day on American roadways resulting from impaired driving—or one person every 45 minutes.
Recently, I attended a judicial education program where a national expert spoke on the dynamic of impaired driving and successful supervision and intervention strategies for individuals convicted of the offense. After the speaker presented data on the number of fatalities associated with driving under the influence, factors affecting recidivism, and information on evidence-based sentencing practices, a judge in attendance interrupted the speaker stating, “What’s the big deal? It’s just a traffic offense, no different from speeding! Why do you think they are so dangerous when they are just trying to have a good time and made one bad decision?”
I was struck by the judge’s uninformed comments. He clearly didn’t understand the danger presented by drivers who choose to use intoxicating substances and then get behind the wheel of a motor vehicle and travel on roadways, placing others and themselves in jeopardy. The judge’s comments certainly downplayed, or even outright ignored, the significant risks attendant with impaired driving and demonstrated a marked lack of appreciation for the facts about driving under the influence. But his comments also revealed that we have a long way to go in reaching universal understanding of the risks presented by impaired driving as well as acceptance of practices that will positively affect recidivism and thereby save lives. Despite over 50 years of efforts by NHTSA and other traffic safety partners to raise awareness about the dangers of driving under the influence and a robust body of research, many of those involved in the criminal justice system, including prosecutors, defense attorneys, probation officers, and judges, still treat the offense as a simple traffic case devoid of risk.
So, what do we know about impaired drivers? A robust body of research undertaken in the past 60-plus years provides a typical profile of those who drive under the influence: Alcohol-impaired driving is most common among men aged 20–45 and people who engage in other risky behaviors. Impaired drivers are different from traditional criminal offenders: They often lack an extensive criminal history, tend to be employed, and have a stable social network, but they also engage in a high degree of denial (drinking is legal, highly prevalent, and socially encouraged) and do not possess a self-view that they are engaging in criminal behavior.
Often individuals who choose to drive under the influence of an impairing substance display antisocial factors increasing the risk of offending, including aggression, thrill-seeking, impulsivity, and anti-authoritarian attitudes. About 45 percent of impaired drivers report experiencing a lifetime major mental health disorder, such as depression, bipolar disorder, conduct disorder, anxiety, antisocial personality, and post-traumatic stress disorder. Repeat DUI offenders generally report more extensive substance use and criminal histories though. Primarily as a result of employment status, lack of extensive criminal history, and the existence of a stable social network, those who drive under the influence often score low risk on traditional assessments, thereby likely masking the need for intervention, particularly because they continue to engage in dangerous behavior by driving while impaired.
Despite a historical profile of men as the predominant impaired drivers, women make up an elevating number of those who operate a vehicle while intoxicated. Arrests for driving under the influence by women increased by 92.6 percent between 1998 and 2012, while arrests for men increased just 8.6 percent during the same period. By 2019, women made up 25 percent of the alcohol-impaired drivers involved in fatal crashes. Particularly in arrests occurring in rural areas, prescription medications, including opioids, and illegal drugs are the most prevalent substances involved in impaired-driving episodes among women rather than alcohol.
The judge’s arguments to the national expert and his colleagues on the bench reflect a common misunderstanding that those arrested for the first time for an impaired-driving offense simply made a bad choice to drink and get behind the wheel. Perhaps a more significant misperception lies in the suggestion that a first offense is really a first offense. Research estimates that a person drives while intoxicated between 300 and 1,200 times before a first arrest for an impaired-driving offense. Those who drink and drive often have a perception of low risk of apprehension. The perception is reality though: Because the driver will be treated as a first-time offender, irrespective of the number of prior incidents of impaired driving for which the driver was not arrested, the sanctions will be minimal and thus relatively meaningless in discouraging future similar behavior. Yet, many so-called first offenders are actually problem drinkers for whom intervention, monitoring, and treatment could assist in reducing recidivism. Drivers who operate a vehicle while under the influence do so an alarming number of times without being stopped by law enforcement. In 2020, drivers reported 127 million episodes of operating a vehicle while impaired by alcohol, but only about 1 million arrests for driving while intoxicated occurred during the same year. While about two-thirds of those arrested for the first time for impaired driving self-correct, one-third of all impaired-driving arrests involve persons with a prior conviction for DUI.
Those who drive under the influence of alcohol are more likely to engage in other high-risk driving behaviors, including speeding and failing to wear a restraint, both of which increase crash outcome severity. For example, in fatal traffic crashes in 2022, more than half (52 percent) of speeding drivers of passenger vehicles were unrestrained at the time of crashes. Drivers who were speeding when involved in fatal traffic crashes had blood alcohol concentrations (BAC) of 0.08 or greater (38 percent versus 18 percent) or even higher BACs of 0.15 or greater (26 percent versus 11 percent)—more frequently than those drivers who were not speeding. In 2022, 12,151 deaths on the roadways occurred as a result of speed-related crashes, representing 29 percent of total traffic fatalities for the year.
We now recognize that the critical driving behaviors associated with impairment include maintaining proper lane position, speed and braking problems, lack of vigilance, and judgment impairment. Research relates alcohol use with consistently elevated motor vehicle crash risk. Impaired driving, though, involves more than alcohol use or abuse. Daily or near-daily cannabis use in the United States now exceeds similar alcohol use among individuals 12 and older. And cannabis is the second most common substance detected in impaired-driving incidents after alcohol. While cannabis use, without the influence of other drugs or alcohol, fails to appreciably increase crash risk, simultaneous alcohol and marijuana use, at any level, results in a significantly elevated risk of a motor vehicle crash and driving under the influence. Acute cannabis use, though, markedly impairs critical cognitive and psychomotor skills necessary for safe driving performance, including attention and concentration, vigilance and signal detection, visual search, information processing, motor pursuit and tracking performance, fine motor coordination, time estimation and reaction time, visual acuity, depth perception, and focusing qualities. Diminished danger perception and risk also occur with acute cannabis intoxication among drivers.
Judicial officers often feel limited in their ability to employ evidence-based practices when sentencing DUI offenders, resulting from punitive legislative mandates for impaired drivers, which are often unrelated to public safety. Legislatures routinely restrict a judge’s ability to employ evidence-based practices that have been shown to reduce recidivism among those who drive under the influence by imposing increasingly punitive and nondiscretionary sentencing demands on judges—a one-size-fits-all approach to sentencing—in impaired-driving cases.
Those legislative mandates not only lack evidence-based support that the sanctions reduce recidivism but actually may do more harm than good. For instance, in most states, legislation imposes mandatory fines and incarceration on all or most convicted of driving while impaired, yet research on the use of fines and jail sentences has failed to demonstrate any deterrent effect associated with those sanctions in decreasing impaired driving. There is also no evidence of a specific deterrent effect resulting from mandatory minimum fines, yet legislatures continue to impose increasing fines on impaired drivers. The high price of fines and fees, though, can severely impact the ability of a driver to be successful while on supervision.
As with other offenses and offenders, judges should be free to sentence impaired drivers so as to both contribute to public safety and aid in the rehabilitation of the offender through the use of evidence-based practices. Evidence-based practices represent those strategies that research demonstrates have a positive effect on reducing recidivism. Interventions must match the driver’s current status and readiness to change rather than merely assuaging the justifiable public outrage associated with the risks of driving under the influence. Sanctions for all criminal offenders, including impaired drivers, should coincide with the nature of the offense and should represent therapeutic rather than solely punitive measures.
Individuals diagnosed with alcohol use disorder are more likely to drive while impaired, yet legislative requirements rarely demand universal screening and assessment of those convicted of driving under the influence. Judges must recognize the need to determine those impaired drivers more likely to reoffend through an adequate screening and assessment process utilizing instruments validated for impaired drivers. Becuase those who drive under the influence typically score as low risk on traditional risk assessment tools, judges must implement the use of screening and assessment tools validated for those who drive under the influence.
Screening provides an opportunity to identify those drivers with immediate and current treatment needs and thus in need of further assessment; a comprehensive assessment, though, targets information necessary for diagnosis and development of a treatment plan. Drivers experiencing alcohol use disorder comorbid with substance use disorder are at a high risk for alcohol-impaired driving. Without universal screening and assessment, those in need of higher levels of intervention may be overlooked or, on the other hand, drivers who are not at high risk to reoffend may be subjected to unneeded treatment or intervention. Providing substance abuse treatment to nonaddicted substance abusers actually increases rates of criminal recidivism and substance abuse, and treating participants with different risk or need levels together in treatment programs can make outcomes worse for the low-risk and low-need participants by exposing them to antisocial peers or interfering with their engagement in productive activities, such as work or school. Therefore, obtaining a screening to evaluate the need for further assessment of all impaired drivers represents a critical step in employing evidence-based practices to reduce impaired-driving recidivism.
High caseloads and the demands of traffic court often render it difficult to thoroughly or even adequately address impaired-driving cases. In many jurisdictions, impaired-driving cases remain pending before the court without disposition, often for many months or even years, even though up to 80 percent of driving-under-the-influence cases eventually result in a negotiated plea agreement. Two difficulties result: a disconnect between impaired driving and eventual intervention and a lack of important information in the hands of the judge critical to effective evidence-based sentencing. Expediting impaired-driving cases, rather than prolonging them, has a clear deterrent effect, even when the sanctions applied are modest.
A systemic commitment to prioritizing impaired-driving cases, whether in processing or setting trials and sentencing following a plea or conviction, represents a practice that can reduce recidivism. Because of the high case volume in courts with jurisdiction over impaired-driving cases, judges often proceed to cookie-cutter sentencing without obtaining critical information necessary to effectively respond to the individual driver’s treatment and intervention needs. In order to sentence impaired drivers in a manner that meets the individual risks and needs of the offender that contribute to recidivism and thus support public safety, judges must demand from all involved in the process—whether it is law enforcement officers, prosecutors, defense attorneys, pre-trial and probation staff, or treatment professionals—thorough and complete information regarding offense details; criminal history; driving history including speeding, seat belt usage, and distracted driving; and the results of screening and assessment in order to then employ the evidence-based practices most appropriate for that driver.
Judges hold a unique position in the criminal justice system with the power to significantly affect public safety while also aiding offenders in their rehabilitation. In overcoming the common misperceptions about driving under the influence and employing the evidence-based practices that research has proven to work in reducing the potential for repeat impaired driving, judges can be agents of change in the continuing efforts to reduce the number of preventable deaths associated with impaired driving.