Two years ago state Democratic Assembly reps issued a press release: “Assembly action shows drunken driving will no longer be tolerated in Wisconsin.”
Pretty big talk, but Rep. Jim Ott was underwhelmed.
“The stuff that was there was not what I would consider as strong as what I’d like to have done,” says the Mequon Republican.
The package, billed as a “comprehensive drunk driving reform package,” made first offense drunken driving a criminal offense, but only if you have a child in the car.
“I don’t know how many of those driving drunk at 2 a.m. have children with them,” says Ott. “So it probably didn’t have a big impact.”
Other parts of the package were “fine,” he says, like requiring interlock devices for all repeat drunken drivers and first offenders with blood-alcohol concentrations of .15 or higher. The bill also made a fourth offense a felony, but only if the third offense has occurred within five years. Previously, it took a fifth offense to become a felony, which with North Dakota and Washington tied for the highest felony benchmark in the nation.
But for all practical purposes, first offenders — while still subject to fines and suspensions — are still spared a criminal record, making Wisconsin an outlier among all other U.S. states.
Ott, along with state Sen. Alberta Darling, R-River Hills, want to take Wisconsin to the next step. They want to charge first-offense drunken drivers caught with a blood-alcohol level of .15 or higher with misdemeanors.
They also want to make third offenses felonies — they’re currently misdemeanors — and stiffen penalties for all subsequent offenses. And they want to allow for the seizure of any car used in a third or subsequent drunken driving offense. Other proposals would set mandatory minimum sentences: six months for first-offense bodily harm, a year for repeat offenders; two years for substantial bodily harm, three years for repeat offenders; and 10 years for any intoxicated driver who causes death, unless the dead person is a passenger in the drunken driver’s car.
These proposals come with a significant cost — more than $200 million in new correctional treatment facilities alone — that could sink them before they get any serious consideration. But Ott is optimistic.
“It is going to cost more money,” he says. “One of the ways we’re dealing with that is the implementation date is going to be somewhat down the road.”
By setting the implementation date a year or a year and a half after the passage of the measures, he says, the state can plan for the increased costs. Additionally, he says, “there would be plenty of time to publicize the fact that the laws are getting tougher in Wisconsin, and maybe some people could be convinced to change their behavior.”
It’s still unclear what kind of support these measures have, but Ott says the issue is bipartisan.
“I think there’s bipartisan support, and I think there’s bipartisan opposition,” he says.
Assembly Speaker Robin Vos, R-Rochester, expressed tepid support last week.
“I plan to thoroughly review these proposals,” he told the Milwaukee Journal Sentinel. “While we all want to get drunk drivers off our roads, we also need to find agreement on how our resources can best be utilized to fight drunken driving.”
The introduction of proposals to crack down on drunken driving has become something of a tradition. But opposition from lawmakers who have been known to hoist a few and from the powerful Tavern League has typically left any significant measures dead from neglect at the end of legislative sessions. The 2009 legislation that passed was carefully crafted to target repeat offenders, a group that even the Tavern League won’t abide. But target first offenders and you chip away at the bread and butter of the state’s tavern industry: social drinkers who might tip one too many on occasion.
The Tavern League’s lobbyist, Scott Stenger, didn’t return requests for comment. But he recently told Bill Lueders of the Wisconsin Center for Investigative Journalism that the league isn’t likely to support any proposal that goes after first offenders. And targeting those who are caught with a .15 blood-alcohol level or above would go after most of them.
According to Donald Lyden, a research analyst with the state Bureau of Transportation Safety, of the 16,809 first-offense OWI (operating while intoxicated) arrests in 2011, 9,300 of the drivers, or 55 percent, were at or above .15.
But despite the fact that Wisconsin is among the few states in which first offenders cause most of the fatal alcohol-related crashes, no one wants to go after them.
“Nationwide it’s the exact opposite,” former state Rep. Tony Staskunas, who sat on a special council on impaired driving, told me four years ago. “Repeat drunk drivers are the ones who cause the most accidents and cause the most fatalities. Here in Wisconsin, we’re sort of an anomaly.”
In more ways than one.
“We’re not normal,” says Nina Emerson, director of the UW Law School’s Resource Center on Impaired Driving. “Wisconsin is not normal.”
Emerson points out that Colorado has a similar population to Wisconsin, but has a significantly lower rate of binge drinking — 17.2 percent versus 21.8 percent in Wisconsin, which earns the Badger State the top ranking nationally.
In 2010, Colorado had 127 traffic fatalities in which drivers had a blood-alcohol content (BAC) at or between .08 and .14, and 90 in which drivers had a blood-alcohol content of .15 or higher. Meanwhile, Wisconsin saw 205 fatalities in which drivers were at or between .08 and .14, and 161 with .15 or higher. This is despite the fact that Colorado treats all drunken driving incidents as misdemeanors. Colorado police can also issue traffic forfeitures for impaired driving for drivers with a BAC between .05 and .08.
Colorado also uses sobriety checkpoints, where police set up roadblocks to check for intoxicated drivers. Checkpoints, which studies have shown can reduce alcohol-related crashes by 20 percent, are used in 38 states, plus the District of Columbia, but they’re not permitted in Wisconsin.
In other words, Colorado, which discourages even small blood-alcohol rates, has significantly fewer alcohol-related fatalities.
“They just don’t have the scope of the problem that Wisconsin does,” Emerson says.
Yet Wisconsin lawmakers continually target those who pile up three or more offenses, which Emerson puts at 19.9 percent of total offenders, rather than first-timers, who appear to cause the most havoc.
I asked Ott why he didn’t just propose making all first offenses a misdemeanor, bringing us in line with every other state.
“The first reason is I don’t think that bill would ever pass,” he says. “I don’t think there would be support for something like that in the Legislature. I don’t think there would be support for something like that in the public.”
He adds that setting the benchmark at .15 would target those who are excessively drunk while weeding out those who mistakenly take that one extra drink, never realizing that it put them over the current legal limit of .08.
“I don’t know that giving a person like that a criminal record would necessarily be good public policy,” he says.
But he concedes that getting to .08 is no mean feat. For a 190-pound man it would require the consumption of six beers in two hours, according to the DOT’s blood-alcohol calculator.
“Even at .08 people are impaired,” he says. “At .15 they’re really impaired.”
Wisconsin’s tolerance for all things alcohol-related is legendary. We consistently lead the nation in binge-drinking. We’re one of the few states where you can take your kid into a bar and buy him a beer. Miller Park, home to the Milwaukee Brewers, is arguably the biggest tailgating boozefest in major league baseball. The University of Wisconsin has consistently been rated at or near the top for party schools. We lead the nation in brandy consumption and are near the top for swilling beer.
And we lead the nation in drunken driving.
In a 2009 survey by the U.S. Department of Health and Human Services, more than 26 percent of those surveyed admitted driving under the influence in the previous 12 months.
Our predilection for alcohol has become a national joke. Take this bit from a 2008 Wisconsin performance by comedian Lewis Black:
“How do you know when it’s New Year’s? That’s the big mystery to me. What’s the difference? I’ve been in bars here, and it’s like New Year’s every f------ night. ‘Oh, New Year’s, that’s when we drink with hats on.’ … You are not alcoholics. You, and my hat is off to you, you are professionals.”
Drinking in Wisconsin may provide fodder for jokes, but when it comes to driving the statistics are sobering. According to the state Department of Transportation, about 500,000 people have been convicted of drunken driving since 1989. In 2011, 267 people were killed in alcohol-related crashes. That’s 42 percent of total traffic deaths that year, one of the highest rates in the nation. Injuries from crashes involving intoxicated drivers numbered 4,566 — 10 percent of the total.
But Dane County Sheriff Dave Mahoney doesn’t think stiffening penalties is the way bring those statistics down.
“I believe that something needs to be done about drunk driving,” he says. “I’m not sure that increasing the penalties is going to do anything to address our OWI problems, mainly because I think the evidence shows that after the first-offense drunk driving arrest the vast majority of people stop driving drunk.”
Despite the fact that Wisconsin is the only state that doesn’t treat first-time drunken driving offenses in criminal court, Mahoney says the state needs to continue to focus on repeat offenders.
“I have no problem using the hammer of the criminal justice system on multiple-offense drunk drivers,” he says. “No problem whatsoever. If people want to continue to drive drunk and put citizens at risk, then we should be locking them up. But from a fiscal standpoint we’re better served by addressing addictions issues.” Indeed, the law-and-order approach costs a lot of money.
The proposals from Ott and Darling are nothing new. The same bills were proposed last session. A Department of Corrections fiscal analysis attached to the 2011 proposal to make third-offense and fourth-offense drunken driving a felony and impose stiffer penalties for subsequent offenses detailed a whopping cost estimate: $208 million for new treatment facilities, plus annual operating costs of $157 million; $38.6 million a year for new treatment programs; $82.6 million a year for additional contract beds; $36.9 million a year for new probation and parole agents. County jails could see increased costs as well.
The cost of making first offenses a misdemeanor for those at or above .15 percent blood-alcohol level would cost over $4 million for new prosecutors, according to the state Prosecutors Office. The state Public Defender’s Office puts the cost of the proposals at $2.5 million, says the office’s spokesman Randy Kraft.
Dane County District Attorney Ismael Ozanne — whose office is already about 16 prosecutors down from what the state Prosecutors Office says it should be — predicts that the proposals will further burden DA offices with stepped-up litigation as defendants try to stave off felony status.
He notes that Wisconsin is a hunting state, and a state that bars felons from owning guns.
“I’m assuming that in Wisconsin many of them like to hunt,” he says of those who would become felons under the proposals. “I don’t know if all of them are hunters, but a good portion might be and they’re no longer going to be able to possess a firearm, which is going to be another issue as to why they’re going to want to fight these, or fight harder.”
Not only that, he says, those facing a third offense might well be inspired to go back and challenge their first or second offenses to lower the total number of offenses, requiring prosecutors to undertake searches for old files that may be missing or incomplete. That strategy may or may not be successful, but, he says, but “we still have to put the time into research. We still have to go to a hearing. That’s an added workload that isn’t calculated in the numbers.”
At a minimum, he says, his office would need three more prosecutors to deal with the new cases flowing into his office.
Ozanne notes that according to Mothers Against Drunk Driving, drivers hit the road while intoxicated more than 80 times before they’re caught. So if police step up enforcement, the number of people flowing into criminal court “doubles or triples.”
Add to that the proposal to seize the vehicles of those convicted of a third or subsequent offense. That law was eliminated in 2009, and Ott and Darling want to bring it back. So if a judge orders the seizure of a vehicle, prosecutors will have to initiate civil proceedings to obtain it.
Most of the money from the seized car being auctioned off would go to the state’s school fund. But Ozanne says those who commit multiple drunken driving offenses rarely drive vehicles worth seizing. And even if the vehicle was worth something, the driver probably wouldn’t own it outright.
“In most cases there’s probably a lien holder ahead of you on a car that’s worth something,” he says. “I think in most cases seizures of vehicles were probably more hassle than they paid off on.”
And Mahoney questions whether seizing the vehicle of a drunken driver punishes family members who have done nothing wrong.
“If the offender happens to have a family, there’s the potential that you’re now going to impact their ability to go to work, meet the financial needs of the family or have a vehicle available for emergencies,” he says.
Mahoney contends that Wisconsin is already making progress on the permissive drinking and driving culture.
“I think the view of drunk driving has changed from years ago,” he says. “It was kind of a wink and a nod. Today I think drunk driving, even first offense, is taken seriously.”
Veteran OWI attorney Tracey Wood agrees.
“People don’t joke around about driving drunk anymore,” she says. “I think people are policing themselves more and getting help earlier.”
If the measures proposed by Darling and Ott pass into law, Wood says, there’s only one group that will benefit: lawyers.
“In general, every time they increase the penalties it doesn’t deter drunk driving,” she says. “The people who are celebrating are lawyers like me. We get so much more business every time this happens. But the reality is nothing has ever shown this to be any kind of deterrent value. Obviously treatment, that type of thing, has been shown to be the most beneficial.”