Do DWI laws work?


ANGELA WAS ARRESTED for waiting in her car.

It was a hot night last summer, and she had gone out drinking in New Hope with two of her friends. She'd driven to the bar, but by the end of the night, she knew she'd had too much to drink. After racking up three DWI offenses in her early 20s, Angela was on the straight and narrow. She didn't want to get another. She wanted to be responsible.

Angela isn't her real name, but she doesn't want to reveal her identity because admitting to drunk driving is embarrassing. "There's a stigma to it," she says. "I don't want people at work to know that about me."

So instead of driving home, Angela and her friends called a taxi. While they were waiting, they sat in her parked car, smoking cigarettes and talking about music.

Big mistake. Within a few minutes, a policeman was rapping at her window, asking her to step out of the car and take a field sobriety test. She failed. She took the breath test, and failed that too, blowing a .10.

"I kept explaining, 'I'm not driving, we're not going anywhere, we're waiting for a taxi, he'll be here any minute,'" Angela says.

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

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

But it didn't matter. She was over the legal limit while behind the wheel. Under the "physical control" provision of Minnesota's DWI law, she was guilty. As the cab pulled up to take her friends home, she was hauled away to be booked for her fourth DWI, a felony offense that can carry up to seven years in prison.

Welcome to the world of drunk driving enforcement in Minnesota. In the state law books, the first-degree murder statute takes up three quarters of a page; the section on drunk driving takes up 40 pages. With more than 100 people killed and thousands injured by drunk driving every year in the state, no one feels sorry for the reckless people who get behind the wheel when they shouldn't.

But there are reasons to question whether the current strategy of busting as many people as possible and piling on the punishment is working. The legal system is choked with impaired driving cases. Advocates for the poor say the system hits them especially hard. More and more Minnesotans are carrying a scarlet DWI in their files, paying several times the normal insurance premiums, and struggling to figure out how they're going to get to work without a license.

The costs of the war on drunk driving are real. So is it working?

DWI activists say it is, and point to a 38 percent drop in the number of alcohol-related fatalities on Minnesota roads in the last 25 years. But that statistic doesn't tell the whole story. Non-alcohol-related fatalities have also been steadily dropping for years, the result of improved road conditions, safer cars, and the adoption of seatbelts and airbags. Twenty-five years ago, more than 600 people died in crashes in Minnesota. In 2008, the last year for which figures are available, that number was down to 455—a 25 percent drop. The fact is, when you look at the proportion of traffic deaths and injuries in the state that can be blamed on alcohol, the numbers have hardly budged in the last 10 years, stubbornly sticking between 30 and 40 percent. By this measurement, drunk driving is as much of a problem as ever.

For those who do get caught, the consequences are severe. First-time offenders lose their licenses for 90 days. In the metro area, taxis and public transportation make this an inconvenience at worst. But in most of the state, getting to work, to the grocery store, or to pick up the kids at preschool is impossible if you don't have a car. After the suspension is over, drivers have to pay a $700 reinstatement fee. Then they can also expect their insurance premiums to go up by a factor of three or four.

For more than a decade, Minnesota cops have been handing out DWIs at the rate of more than 30,000 a year. Over time, all those write-ups pile up. Nearly one in seven drivers in Minnesota has a DWI on his or her record. In our effort to make drunk driving unacceptable, we may be in danger of doing the opposite. If nearly everyone knows someone with a DWI, how much stigma does it carry?

NOT SO LONG ago, Minnesota was a drunk driver's paradise. As late as 1959, it was perfectly legal to keep an open handle of vodka between your legs as you drove down the highway. Even if you were pulled over on suspicion of being drunk, you could refuse to take a blood-alcohol test, effectively denying the cops the evidence they would need to charge you.

The result, as you might expect, was a bloodbath of alcohol-related crashes.

"We were literally killing 300 people a year in Minnesota. And for every person killed, there were about 20 injured," says Steve Simon, a professor at the University of Minnesota Law School and an anti-drunk-driving crusader. "It was a serious, serious public health problem."

In the 1960s, the state decided it needed to get tough on drunk driving. It passed the Implied Consent Law, which said that when you get your license and drive on Minnesota roads, you've implicitly agreed to be tested if the police think it's warranted. If you refused a test, you lost your license for six months. The Legislature also made it much easier to prove drunkenness, with a law decreeing that if your blood alcohol concentration was over .10 percent you were intoxicated, even if you weren't obviously impaired.

The laws continued to tighten in the 1970s. Driving with a concentration of .10 percent went from being evidence of intoxication to being outright illegal, a misdemeanor on its own.

Minnesota also pioneered a new strategy, becoming the first state to set up a parallel civil penalty alongside the criminal penalties: If you tested over the limit, the commissioner of public safety would revoke your license for 90 days. Eventually, this new administrative process was streamlined to the point that police could revoke your license on the spot, without having to first file paperwork with the commissioner, and before you ever saw the inside of a courtroom. At first you could delay the instant revocation by asking for a hearing to challenge it, but in 1982 that loophole was closed as well. You could still fight to get your license back in a judicial hearing, but while you were waiting you wouldn't be able to drive.

In 2004, the legal alcohol limit was dropped to .08 percent. And the movement to get stricter is far from over: Nearly every year, the Legislature considers a raft of new provisions to tighten the screws.

THE DRIVING FORCE behind this escalating war on drunk drivers has been the state chapter of Mothers Against Drunk Driving, the national organization founded in 1980. Any group fighting for stiffer DWI penalties has an advantage out of the gate—who's going to stand up for going easy on drunk drivers?—but the Mothers carry a moral trump card. Their founder and much of their membership are mothers whose children have been killed by drunk drivers.

Jeff Sheridan, a DWI defense lawyer, says Minnesota’s drunk driving laws are out of control

Jeff Sheridan, a DWI defense lawyer, says Minnesota’s drunk driving laws are out of control

Leveraging this high ground, MADD successfully pushed to lower the blood alcohol limit to .08 percent in every state in the union. They fight for random roadblock checkpoints, higher beer taxes, and keeping the legal drinking age at 21.

In Minnesota, much of MADD's lobbying muscle has been flexed through the DWI Task Force, a group of law enforcement officials and activists that proposes new laws to combat drunk driving.

A 2006 report by the task force sums up the group's philosophy: "The most effective general deterrent action a state can take is to maintain a high level of DWI arrests."

Of course, with law enforcement budgets threadbare, there are hardly enough cops on the road to offer a credible challenge to all the state's drunk drivers. Chances are, if you try to make it home from the bar, you're not going to be stopped.

"Statistically, you have to drive about 100 times in this state to be arrested once for DWI," says Steve Simon, the law professor who founded the DWI Task Force. "That's why the penalty needs to be substantial. The consequences need to be so great that people think twice about driving even if they're unlikely to be caught."

But Jeffrey Sheridan, a DWI defense lawyer who attends the Task Force meetings, says the group's quest for arrests and stiff penalties has gotten out of control. Tall, with well-coifed white hair and blue eyes, Sheridan moves and talks with the self-assurance of a trial lawyer. As one of the state's top DWI defense attorneys, he has made a career charging clients top dollar to beat their drunk-driving raps.

"For many years, I was very cynical about it," Sheridan says. "I watched the penalties pile up and the laws become more byzantine, and every time the Legislature changed the law it was more work for me. This business has been very good to me."

But more recently, Sheridan has started to push back against MADD.

"I call them the Mad Mothers," Sheridan says. "They've got enormous political capital with no real counterweight. They just keep pushing laws through, ratcheting up the penalties, to the point where they've done an end-run around our Constitutional rights."

IF YOU WANT to understand why nearly one in seven Minnesotan drivers has a DWI, a good place to start is the Implied Consent law. Every year, Minnesota police revoke between 30,000 and 40,000 licenses by the side of the road, before the drivers can even talk to a lawyer, let alone plead their case to a judge or a jury of their peers. Even if the suspect can prove he wasn't intoxicated, he may still wind up with a DWI on his record.

You can challenge your license revocation, but unless you read the fine print legalese on the back of the form the police make you sign, you won't know that you only have 30 days to do it. And since the court dates for the criminal charges often aren't set until after that period, by the time many people are talking to a lawyer, it's already too late. Once the deadline has passed, you've got a DWI on your record, even if you beat the criminal charges.

"It's a crazy system," Sheridan says. "A DWI is a criminal offense, and in this country, when you're [charged with] a crime, you're supposed to get your day in court."

But what some people find even more troubling is that the two-track system of parallel criminal and civil penalties appears to be stacked against the poor and indigent. It's hard to find a lawyer in Minnesota who'll represent a DWI case for less than $500. Those who can't afford a lawyer for their criminal case get assigned a public defender. But public defenders, by law, can only represent their clients in criminal cases. Since the implied consent hearing is civil, if you can't afford a lawyer, you'll be going head-to-head with the state with no one to represent you. And implied consent hearings aren't the kind of thing you want to muddle through on your own.

"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."

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.

"The Intoxilyzer case shows the problems with relying too much on technology," Sheridan says. "It's not a silver bullet."

PRETTY MUCH EVERYONE in the DWI debate agrees that the problem with attacking drunk driving is that drunk driving isn't the real problem. The real problem is drinking.

"To really address drunk driving, you have to address drinking," says Simon. "And that's something that's deeply ingrained in our culture. Western society has been using alcohol for 7,000 years. It's something we're very resistant to changing."

Simon thinks the best way to put a dent in drunk driving and all the other alcohol-related ills is to jack up the taxes on alcohol and make the industry and consumers pay for all the social services their drinks necessitate. But resistance to that plan—from the alcohol industry, from liquor stores, from bars, and from Minnesotans who like to drink—will be substantial. Change will be incremental.

"It's something we can effect, bit by bit, through education," says Jean Mulvey, the executive director of MADD in Minnesota. "Look at what happened with cigarettes. These things can change."

In the meantime, though, people like Angela will keep getting arrested. Thousands of Minnesotans a year will get DWIs on their records without ever being convicted of a crime. And the poor will face the legal maze alone.

"Drunk driving is horrible, everyone wants to get rid of it," says Travis Schwantes, the public defender. "But in doing that, we have to make sure that our process is fair. Everybody in MADD, every law enforcement officer, has a friend or relative that's been picked up on a DWI. We want our friends and family to be treated fairly. It isn't just the people who are habitually driving drunk, it's our friends and relatives. It's us."