Wisconsin eyes joining other states in criminalizing first-time drunken driving

2013-02-20T11:45:00Z Wisconsin eyes joining other states in criminalizing first-time drunken drivingSTEVEN ELBOW | The Capital Times | selbow@madison.com madison.com

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.”

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(30) Comments

  1. classic
    Report Abuse
    classic - February 20, 2013 7:26 pm
    So how do you take into account the person that goes from bar to bar and only has a few at each. The servers have no way of knowing.
  2. classic
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    classic - February 20, 2013 7:25 pm
    And lets raise The price of what you enjoy, more than double it. More idiotic ideas out of the Madhat area.
  3. kjsdaddio
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    kjsdaddio - February 20, 2013 6:43 pm
    What ever happened to your so-called god of second chance? You create a culture of drinking, just to stop on a dime and say that they are criminals. I believe in second chances, but anything after that is open season for criminality. I don't drink, and I understand the need for harsher laws, but no law is going to change the habitual drinker's habits, and I don't care how many times they've been arrested for dui, they will do it all over again. They have the "I have nothing to lose " mentality. You give these statistics like they pertain to everybody, well, maybe they don't. It's like putting someone to death and then find out they were innocent. If it's the first time, hopefully it's the last time, it's pretty traumatic to the normal thinking person. Don't ruin a career for someone's first mistake. Good thing none of you have ever, ever made a mistake. We will put you all up for saint-hood,,,,,,,,,glass houses
  4. Victor Zeller
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    Victor Zeller - February 20, 2013 5:45 pm
    It should be a criminal offense. In fact there should be tougher laws to get the drunks off the streets. The beer tax needs to be raised as it hasn't been raised since 1969, 44 years. I say raise it a dollar a bottle and can. Use that money to fix the roads, put up police drunk driving check points to get even more of them off the streets.
    This has got to stop. I don't care that the people of Wisconsin love their beer, they need to learn not to drink and drive, not even ONE BEER.
  5. 504law
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    504law - February 20, 2013 5:24 pm
    It's relatively random chance that a person with 0.15 is going to be observed by law enforcement. But servers of alcohol have a fairly good idea of who is over the limit as they are serving. And, after serving 4+ drinks, the server also has the opportunity to learn whether that person will be driving after leaving the establishment.
    I think it would be a good idea for the licensing board to be informed of every arrest of persons with BAC above 0.15. Nothing further regarding fines or penalties, but the licensing board might be able to use that information to see if a relatively small percentage of servers account for a substantially high percentage of the OWIs.
  6. Hogzilla
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    Hogzilla - February 20, 2013 4:06 pm
    There are simple things you can use to determine roughly where you are at. They have one thing that I call the booze wheel that allows you to line up your weight, how many drink you have had and the amount of time spent drinking. I keep one in my glovebox. You would be surprised at how little it takes to be over the limit. You can buy electronic breathalyzers on Amazon for less than $20. I would be wary of the cheap ones though, my friends and I tried out a cheap one a few years ago after running a controlled experiment with whiskey. The results were all over the place even though we all weigh about the same and we had the same number of shots. I think the booze wheel is a better method, if you are close, call a cab.
  7. dante
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    dante - February 20, 2013 2:35 pm
    Adding a tiny tax to something is *not* enough to cause someone to stop doing it. All it does is punish *everyone*, including those who are doing it responsibly. If I buy a 6-pack to drink at home, why should I be paying for the idiot who's drinking those 6 (or 12) beers at the local bar before trying to drive home? Or if I walk to the local bar? Or if I ride my bike to the local bar?

    If the state needs money to implement this, double the fines for drinking and driving. Triple them. Raise them to $5,000+, whatever is necessary. Have the people who are CAUSING the problem PAY for the solution.
  8. Big_Joe
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    Big_Joe - February 20, 2013 2:32 pm
    Call me naive, but I wonder how many people out there drive a vehicle after a few drinks not even knowing if in fact their blood alcohol exceeds the limit. Is there a cheap breathalyzer available? Or could the Tavern League defend its position by offering sobriety testing on the premises? I like a toddy or two (possibly three ;>) but I couldn't guess what my BA level would be, especially considering all the variables such as type, amount, and time period over which the alcohol was consumed.

    @dante: Thanks for the analysis, but that's too many moving parts for me.
  9. BananaSplitz
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    BananaSplitz - February 20, 2013 2:21 pm
    I agree with you on that one, PapaLorax.
  10. BananaSplitz
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    BananaSplitz - February 20, 2013 2:21 pm
    Raise the beer tax. It's been way too long.
  11. BananaSplitz
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    BananaSplitz - February 20, 2013 2:19 pm
    Amen.
  12. commentary1
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    commentary1 - February 20, 2013 1:31 pm
    How about focusing on the3rd and up owi's. If you can't enforce them at more than once, don't both putting any more laws into effect
  13. midwestguy
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    midwestguy - February 20, 2013 1:04 pm
    We all know that Wisconsin's beer tax is one of the lowest in nation. We all know that Wisconsin has been a pro-drinking culture state since it was first put on the map. As with the national gun debate, this is a "culture" issue. When you consider that it took 75 years to get people to wake up about smoking, it will take at least that long for attitudes about alcohol to change, with or without legislative intervention.
  14. pojo440
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    pojo440 - February 20, 2013 12:51 pm
    According to WI Crash data, of the 562 persons killed in Wisconsin in 2010, 39% died in alcohol-related crashes, 30% died in speed related crashes and 16% died in crashes that involved both speed and alcohol. I agree driver inattention is a problem, but alcohol is a huge factor in driver related deaths. The numbers cannot be ignored. This talks about only the deaths, and not the injuries.

  15. pojo440
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    pojo440 - February 20, 2013 12:38 pm
    According to WI Crash data, of the 562 persons killed in Wisconsin in 2010, 39% died in alcohol-related crashes, 30% died in speed related crashes and 16% died in crashes that involved both speed and alcohol. I agree driver inattention is a problem, but alcohol is a huge factor in driver related deaths. The numbers cannot be ignored. This talks about only the deaths, and not the injuries.
  16. BigByger
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    BigByger - February 20, 2013 12:23 pm
    All of the individuals quoted in this article who oppose tougher standards, sobriety tests (which they use in Illinois among other states) and tougher sentencing either choose to ignore that they work in other states--like Colorado--or choose not to care. Bottom line: Colorado residents are safer from drunks behind the wheel than Wisconsin drivers, pedestrians, bicyclists and operators of horse-drawn conveyances. Anyone who by state law has to share the road with them. And don't tell me the drunks are only out at 2:30 AM! Baloney!

    Lets all thank the Wisconsin Tavern League and their representatives in the state legislature for that!
  17. pojo440
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    pojo440 - February 20, 2013 12:16 pm
    Not being a crime sends the message that this is not an important issue until you get your first DUI. Alcoholism is ha huge problem in WI, for the safety for that person and other motorists on he road we need to make sure people are not driving when they drink.
  18. dante
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    dante - February 20, 2013 12:14 pm
    Can the paper be a bit more clear on the "it takes 6 beers to get to .08" statistic?

    1) Using the calculator, for a 190lb man 5 drinks over 2 hours (what the paper used) gets you to 0.077%. So it's not "6 beers", it's more like "you can drink 5 before you're over the limit". To have 6 beers in 2 hours would leave you at 0.098, quite a bit over the limit. To note, using the same 190lb man drinking 6 beers over THREE hours still means your at 0.084%. I'm guessing that the CT manipulated the numbers to get the most outrageous combination that they could?

    2) That's 12oz, 5% beer. When you consider something like a pint (16oz) of Ale Asylum's Ballistic (7.5%), you'll hit that 0.098 limit in approximately 3 pints:

    50% more alcoholic than the traditional Bud/Coors/etc (so down to 4 12oz beers).
    25% more beer per serving (16oz vs 12oz, so down to 3 pints).

    3 pints in 2 hours of yummy, yummy, Ale Asylum IPA. That's *really* easy to do. Same with Capital's dopplebock's, or New Glarus's Dancing Man Wheat (7.2%), or Tyranena's Hop Whore (7.5%), or Central Water's Satin Solstice (7.5%), and so on.

    3) For someone a bit smaller than 190lbs, that limit comes up even faster. A skinny 160lb guy drinking for 2 hours will hit that same 0.096% level in just five 5%, 12oz beers, or 3.3 7.5% 12oz beers, or 2.64 pints of 7.5% beer.

    Start from that 0.072% (ie, what you can have before you'd be over the limit), and the amount goes down even more:

    Start with 4 12oz 5% beer (Bud/Coors/etc)
    That equals 2.67 higher alcoholic 7.5% 12oz bottles
    Or 2.13 16oz pints of 7.5% beer

    So for a 160lb guy, you can have 2 pints of craft beer* over 2 hours before you're drunk. How is that not REALLY EASY to do?

    *Yes, I realize that I was picking higher ABV craft beers as opposed to Moon Man (5%), but in general much of craft beer is higher than 5% ABV. Even the macro's are jumping on this trend, with Bud Light Platinum (6%) and Budweiser Black Crown (6%) coming in at higher alcohol limits.

  19. jcboo
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    jcboo - February 20, 2013 11:43 am
    This whole DWI issue is a red herring. The REAL and INCREASING problem on Wisconsin roads is the (usually young) drivers texting and otherwise using their "smart" phones. Statistics could well prove more accidents and more deaths attributed to this threat than DWI or all other car crashes combined.
    Let's get with it, people in the legislature!!
  20. Farmdog
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    Farmdog - February 20, 2013 10:06 am
    The Dane County DA’s Office is at critically low 1985 staffing levels now. The pay is poor given there is no pay progression commensurate with experience. Many staff members work for free or full time for part time wages. Some are not paid for months or even a year by the state. This causes high turnover and hence inexperience. This critical staffing situation exists in other counties as well. So what does the legislature propose: criminalization of first offense drunk driving which means hundreds of new cases will be transferred from the City Attorney’s office, where attorneys are paid far more, to the already overworked District Attorney’s Office. Sound fair? Sound smart? Look, if the state really wants to solve the drunk driving problem, it should require ignition interlock devices on all vehicles registered in Wisconsin much the same as mandatory seat belts, make tampering with or circumventing such devices a serious felony, and increase funding for alcohol treatment programs and OWI courts. You will never solve the drunk driving problem in this state by putting people in jail and prison. Period, end of story. You are better off spending that same money on prevention, education and treatment.
  21. ryoose
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    ryoose - February 20, 2013 9:09 am
    Not really much different.

    If a drunk person were to build a nuclear weapon and detonate it in a school zone, that's not really much different than driving a car after having 4 beers. Lock 'em up!
  22. PapaLorax
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    PapaLorax - February 20, 2013 8:56 am
    To have an argument whether the third or fourth offense is when felonies kick in seems tragically sad.
  23. TRYIN2C
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    TRYIN2C - February 20, 2013 8:39 am
    If a drunk waves a loaded pistol in the air, it does not matter if the pistol is fired or not, loaded or not, that person will be hauled off to jail.

    A loaded pistol in the hands of a drunk are not really much different in nature than a drunk behind the wheel of a running/operational automobile with gas in and the motor running.

    The penalities for both should be equal, even if it does not deter, it will put the diseased mind behind bars long enough so that he/she can get help.
  24. ginrummy
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    ginrummy - February 20, 2013 8:13 am
    Alcohol-related crashes is misleading. It doesn't mean that alcohol caused the crash. I would say that almost all crashes are radio-related. A person could have been drinking and then get rear ended by some old person. It would be reported as an alcohol-related crash, not a crash due to impared driving by an old person. I agree that some crashes may be caused by alcohol impairment, but the statistics are misleading in how many.
  25. tututalak
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    tututalak - February 20, 2013 8:12 am
    ". . .maybe some people could be convinced to change their behavior.” Rep. Ott says that as an afterthought. Shouldn't that kind of be the main point of changing a law that is forecast to be so expensive? If it does change behavior, I'm all for it. But if that's not his main objective, what is?
  26. ginrummy
    Report Abuse
    ginrummy - February 20, 2013 8:09 am
    I don't get what a felony would solve. When I had a choice of going through a long court battle to fight a felony charge I asked myself what a "felony" meant. Basically, it just meant I couldn't legally own a gun and I couldn't vote during my sentence. Since there were no elections coming up, I decided to just take the felony. No big deal.
  27. ginrummy
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    ginrummy - February 20, 2013 8:06 am
    But, like voter fraud, if we don't catch it then it doesn't exist. So those 80 times are non-existent.
  28. tomtom666
    Report Abuse
    tomtom666 - February 20, 2013 7:07 am
    Mike, Do you disagree with the Mothers Against Drunk Driving estimate from this story that the average first offender has driven drunk 80 times before being caught. That number seems about right to me.

  29. Ballblaster
    Report Abuse
    Ballblaster - February 20, 2013 6:53 am
    You get ONE....second Offense becomes Felony. That will slow things down.
  30. Mike123
    Report Abuse
    Mike123 - February 20, 2013 6:37 am
    Most first time offenders are not repeat offenders. Most repeat offenders are not deterred by criminalization, classes, rehabilitation...

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