Learning From DWI Court Research

According to All Rise, “(i)mpaired driving treatment courts (also known as DWI courts) make our roads safer by treating the underlying alcohol or polysubstance use disorders fueling dangerous behavior by repeat impaired drivers.” Unless the court operates separate tracks for low risk/low need participants, DWI courts focus only on drivers presenting high risks and high needs. All Rise identifies candidates for a high risk/need track as individuals with significant risk for committing a new crime or failing to complete less intensive dispositions like probation, along with a moderate to severe substance use disorder that includes a substantial inability to reduce or control their substance use.

Since about two-thirds of impaired drivers arrested for the first time self-correct and do not recidivate, the admission requirements for a DWI treatment court participant may not include those on probation for a first or, even, a second offense. Early findings in the development of treatment courts suggest that overtreating offenders with lower risk or needs may exacerbate concerns. Studies of DWI courts found that some programs increased recidivism by mixing the high needs/high risk participants with those presenting with lower needs and/or risk. An extensive discussion on the cost of mixing populations, as well as overtreating can be found in the commentary sections of All Rise Adult Treatment Court Best Practices Standards.

The treatment court expectation that programs evaluate outcomes from supervision can also serve as a model for courts monitoring DWI offenders. In other words, courts should utilize evidence-based practices to reduce recidivism, rather than resorting to an appealing argument to craft expectations from offenders. Pursuant to the best practices promulgated by All Rise, treatment courts must review results annually, including participants’ validly assessed risk and need levels, the timeliness of admission procedures and treatment delivery, team member involvement in pre-court staff meetings, and the services that were delivered, including court status hearings, treatment sessions, community supervision services, needed medications, and drug and alcohol testing.

Many jurisdictions lack treatment programs for impaired driving. Some courts must rely on private treatment vendors to provide treatment and/or supervision akin to traffic schools. The typical probation program enforces the sanctions required by state laws, including good behavior, community service, alcohol treatment and ignition interlock sanctions, but fail to incorporate extended terms of supervision or the extensive screening and assessment of progress deeper seated problems of impaired drivers.

While about two-thirds of impaired drivers change their behavior after the first arrest without extensive court supervision, that first arrest or conviction certainly does not represent the first time the individual drove a motor vehicle while impaired. According to the Federal Bureau of Investigation, the average impaired driver operates a motor vehicle under the influence more than 80 times before their first arrest, while other research suggests the number is significantly higher. In 2021, an estimated 127 million episodes of impaired driving occurred in the United States, but only about 1 million drivers were actually arrested for the offense in the same year. The remaining one-third of drivers who do not self-correct pose a serious threat to other road users and the public.

Trial court judges are required to respond to many demands in the course of their duties. Making the most effective use of their sentencing authority is a major struggle for judges. The last fifty years have produced many divergent approaches to corrections and rehabilitation including “just say no,” shock probation, “zero tolerance” and mandatory minimum sentences. There are many objectives to sentencing but if the emphasis is to reduce recidivism or change behavior, the research focusing on the implementation of DWI courts offers hope for better results. The original “Key Components” of drug courts, promulgated in 1994, developed the expectations for treatment courts to monitor and evaluate the achievement of program goals and gauge effectiveness and continuing interdisciplinary education to promote effective treatment court planning, implementation, and operations. The effect of implementing the “Key Components” of treatment courts focuses on outcomes and what works, rather than what we simply believe should result in behavior change.

The practice of evaluating impaired driving programs for their effectiveness precipitated an extensive analysis by the National Highway Safety Administration (NHTSA), resulting in thorough guidance on what works to reduce impaired driving in its publication entitled “Countermeasures That Work.” The NHTSA publication makes the following observations:

Fines - Available evidence suggests that fines have little effect on reducing alcohol-impaired driving. Even though fines may not reduce alcohol-impaired driving, they do help support the system financially.

Jail - Research on the effectiveness of jail is equivocal. Short (48-hour) jail sentences for first offenders may be effective and the threat of jail may be effective as a deterrent (as is done in DWI and drug courts), but other jail policies have little effect. “The balance of the evidence clearly suggests the ineffectiveness of mandatory jail sentence policies.” Numerous studies even indicate that mandatory jail might increase alcohol-related crashes.

Community service - Community service can provide benefits to society if offenders perform useful work, but the effects of community service programs on alcohol-impaired driving have not been evaluated.

Victim Impact Panels - DWI offenders are often required to attend a victim impact panel, in which offenders hear from people whose lives have been permanently altered by an impaired driver. Each year, an estimated 400,000 offenders attend victim impact panels. Although victim impact panels are intuitively appealing, most studies suggest they do not reduce recidivism.

Ignition Interlock Devices - All 50 States and the District of Columbia mandate or allow interlocks for some DWI offenders. Unfortunately only a small percentage of eligible offenders have an interlock installed. First and repeat offenders who had interlocks installed in their vehicles had arrest recidivism rates that were 75% lower than drivers who did not have interlocks. After interlocks were removed, however, the effects disappear. States that require interlocks for all DWI offenders had 26% fewer alcohol-involved fatal crashes than states with no interlock laws. Similarly, States that require interlocks for repeat offenders and high-BAC offenders had 20% fewer alcohol-involved fatal crashes.

Screening and Assessment of Alcohol Dependence or Misuse on Entry to Probation - A DWI arrest provides an opportunity to identify offenders with alcohol misuse problems and to refer them to treatment as appropriate. The assessment can take many forms, from a brief paper-and-pencil questionnaire to a detailed interview with a treatment professional. Alcohol treatment can be even more varied, ranging from classroom alcohol education programs to long-term inpatient facilities. However, one study found that none of the assessment instruments studied correctly identified more than 70% of offenders who were likely to recidivate.

The All Rise Best Practice Standards make several suggestions for encouraging positive results in dealing with DWI offenders:

MORE IS NOT NECCESARILY BETTER - A follow up of some early DWI court program graduates found that some defendants who participated in the program returned to the court sooner and more often than those who did not. According to All Rise’s Best Practice Standards, “Underserving individuals with high treatment needs can allow unaddressed problems to become more severe, whereas overburdening individuals with low treatment needs can create new problems, including interfering with their ability to engage in productive activities like work, education, or childcare.“ Problems also arise when less needy offenders are grouped with higher needs and risks. Screening for appropriate admission to a program and follow up assessment of progress by professionals address this issue.

ESTABLISHING A CONNECTION WITH THE JUDGE –Fleeting attention from the judge can give the unwarranted and counterproductive impression that the court gives minimal thought to their case or welfare. A study of 69 drug courts found that reductions in criminal recidivism were two to three times greater when the judge spent an average of 3 to 7 minutes communicating with participants in court.

JUDICIAL EDUCATION – Dealing with addiction or mental health issues was never covered in law school. While there are presentations at mandatory conferences, a fuller understanding can only be accomplished through self-study and online or in person programs.

Finally, sentencing and probation should positively affect the driver’s behavior while also contributing to public safety. Relying on evidence-based practices will effectively support the interests of the public in reducing impaired driving and safety of others on the roads.