Do DWI laws work?

One in seven Minnesotans has a drunk driving conviction. Are we any safer?

"If you don't have a lawyer, you're going to lose," Sheridan says. "There are a few cases where someone wins representing themselves, but it almost never happens."

Between the quick deadline and the long odds for people without counsel, it's not surprising that about nine out of every ten drivers never even challenge their license revocation in an implied consent hearing.

"The system is entirely unfair to the people who can't afford counsel," says Travis Schwantes, the chief public defender for the 10th Judicial District. "We're always trying to persuade our clients that the system is fair, that win or lose, justice is being done. But when I explain to clients that it's too late, or that we can't represent them on the civil side, they walk away feeling tricked and cheated."

Stephen Simon, founder of the DWI Task Force, says the state needs more enforcement
Nick Vlcek
Stephen Simon, founder of the DWI Task Force, says the state needs more enforcement

Defense attorneys and civil liberties activists aren't the only ones who question the wisdom of Minnesota's civil DWI penalties. The program has also drawn criticism from within the criminal justice system. With crippling state budget cuts and the judiciary fighting to keep every penny of funding it can, some say running suspected drunk drivers through criminal and civil courts to get a DWI on their records doesn't make financial sense.

"It's a big waste of money. We're basically paying for two separate legal systems where one will do," says a lawyer who didn't want to be named because of his ongoing work as a city attorney. "You have city and county attorneys trying the criminal cases, and then there's this completely duplicative civil process run out of the Attorney General's Office."

In the last legislative session, Rep. Tom Emmer (R-Delano) introduced a bill to eliminate all the pretrial civil penalties for accused drunk drivers. But the Legislature had no appetite to take on MADD. The bill bounced between committees and never made it to the floor. (Emmer, whose own DWIs became an issue in the run-up to his endorsement as the GOP candidate for governor, declined to talk about the issue.)

ON MAY 18, Governor Pawlenty signed a bill to install ignition interlock systems in the cars of some DWI offenders, radically reshaping the debate. The technology requires drivers to pass one breath test before they can start their car, and another five minutes later to make sure drivers aren't enlisting sober friends to get the car rolling.

Under the new law, which goes into effect next July, ignition interlocks will be mandatory in the cars of repeat drunk drivers and first-time offenders caught with a blood alcohol level over .16 percent.

The adoption of the ignition interlock devices was remarkable because it scrambled the familiar battle lines. Everyone liked it. MADD supported it because it keeps drunk drivers off the road. Critics of the punishment-heavy model liked it because it lets people who have made a mistake keep driving legally.

"It was a paradigm shift," says Jean Ryan, the alcohol programs coordinator at the Department of Public Safety. "Technology gave us a tool we didn't have before, and it's changing how we approach the problem."

Of course, the ignition interlock program has some familiar vulnerabilities. Just as someone with a suspended license can decide to drive anyway, DWI offenders under the new regime can still break the law and hop in a car that doesn't have a device installed.

But experts are optimistic that scientific innovations are going to keep changing how the state fights drunk driving.

"I think it's just a matter of time before we see this and other technologies coming standard on every vehicle," Sheridan says. "We're going to see the same adoption process that happened with seat belts and air bags."

But those developments are still a long way off, and there are other reasons to be wary of leaning on fancy gear as a panacea. You don't have to look any further than the state's ongoing battle over the Intoxilyzer 5000 to see the potential pitfalls.

Ever since the law started emphasizing blood alcohol content as the critical factor in judging intoxication, law enforcement has looked for reliable ways to test it. The most accurate method, of course, is to test the blood itself, but getting a rowdy drunk to submit to a finger prick is asking for trouble, so over the years police have relied on breath and urine tests. Most states have stopped allowing urine tests, since drivers can piss positive long after they're sober. Since 1997, Minnesota police have been using a breath-test machine manufactured by Kentucky-based CMI Inc.

The problem with CMI's Intoxilyzer 5000 is that it's a black box: You blow into it and a reading comes out, but what happens in between is a secret. The technology has never had a full validation study, and CMI won't disclose how the Intoxilyzer works.

In 2006 and 2007, two Minnesotans charged with drunk driving challenged the Intoxilyzer. If they were going to suffer the penalty for drunk driving, they argued in court, they should at least be able to examine the software that was sealing their fate. The courts agreed, and the state ordered CMI to turn over its source code for evaluation. CMI balked, resulting in a stalemate that persists to this day. In the meantime, hundreds of Minnesotans have used the same argument, creating a massive backlog of unresolved DWI cases that continues to grow.

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