Judges wrestle with options for handling drunk drivers
Sentencing repeat drunk drivers is a challenge, say local judges, partly because they can't be sure which penalty will work and partly because they'd like to use some alternatives sooner.
"For the most part, you're making a lot of these decisions, and there's no way of knowing if you're making the right one," said Robert Wing, who has been Pierce County judge for 24 years.
Wing knows the anguish of sentencing a drunk driver responsible for taking a life.
With the family of the victim on one side of the courtroom and family and friends of the offender on the other, the atmosphere is emotional.
"It's like the opposite of a wedding," said Wing. "It's a disaster."
He said he's thought of telling the grieving family, "If it would make you feel better, I'd sentence him to life (in prison), but I know it won't."
"There are people who come in and you know by how they're acting, they're terribly embarrassed by what happened," said St. Croix County Judge Edward Vlack. Others, he said, just shrug off drunk driving charges.
Vlack said before sentencing a person on a second or third operating while under the influence offense, he wants to know what preceded the arrest, the results of the breath or blood test and whether the person has gone for a drug and alcohol assessment before the sentencing hearing.
"(Some offenders) know they've got a problem," said Vlack, who has been a county judge for over seven years. "Some people don't."
Once someone has been arrested three times, it's obvious he has an alcohol problem, said Vlack. "It's more than just 'don't drink and drive.'"
A first offense results in a fine. Second through fourth are misdemeanors and could result in terms in county jail. A fifth or higher offense is a felony, and a conviction can mean prison.
Some advocate coming down even harder than the stiff fines already assessed on first-time drunk drivers.
"The trouble with (that) is there are some people who are never going to do it again," said Wing. Wisconsin Department of Transportation statistics back him up. In 2007, 66 percent of those arrested for OWI were first offenders.
While social stigma and the financial cost can convince most people to avoid drinking and driving, those who are caught more than once are another story, said Wing.
"How often do you need to drive drunk to get caught twice?" he wondered. "We're probably dealing with a person whose behavior is hard to change."
Wing said about 95 percent of repeat OWI offenders plead guilty. Those cases come to him with a sentencing recommendation endorsed by both the district attorney and the defense attorney.
"It would be a rare circumstance that you'd differ from that," said Wing of his choices as judge. If defense attorneys don't feel they can rely on the judge to accept a sentencing agreement, defendants will take their chances at trial or ask for another judge, said Wing.
Still, he said, "I have myself rejected agreements and sentenced people differently than they'd agreed to be."
A few years ago Wisconsin lowered its blood alcohol concentration standard for legal intoxication to .08.
"The tests really are coming in so high that for the most part there's nothing to fight about," said Pierce County DA John O'Boyle of reaching sentencing agreements with defense attorneys.
He said he'll often agree to deviate down from guidelines if the defendant goes through an alcohol assessment and starts treatment before sentencing.
On a fifth OWI, that could mean a long probation with a year in county jail as a condition of probation.
O'Boyle said an offender convicted a sixth, seventh or eighth time can expect a prison term -- unless he is accepted into drug court.
Although, it's never automatic, both counties allow some felony-level drunk drivers into their drug court programs.
"We went back and forth," said Vlack of his team's decision. "We thought no. We thought maybe. We thought no. And now we're back to saying we will consider them."
"When we did the drug court training, one of the things we talked about is why would we exclude alcohol (offenders)," said O'Boyle. His county's team agreed from the start to accept felony-level drunk drivers into the program.
"It's very structured, and it's a much higher level of supervision than probation," said O'Boyle. "There's a high level of accountability."
Along with making weekly or bi-weekly appearances before the judge, regular visits with probation agents, attendance at recovery group meetings and frequent alcohol and drug testing, drug court participants must find and keep a job and comply with a series of other orders and rules.
While a lot is expected of participants, they also have a strong support system, said Vlack.
"It's a life-changing program, and that's not just because they are no longer using," he said
Since its beginning, St. Croix County's drug court has accepted five OWI offenders. One, a seventh-time offender, was terminated from the program. Two, fifth- and sixth-time offenders, have graduated. Two others are still in the program.
Participants in his drug court are required to use a Sobrietor, said Vlack.
The unit uses both voice recognition technology and alcohol content measurement to monitor repeat offenders.
"I think it works fantastically well," said Michael O'Keefe, the Wisconsin Department of Corrections field supervisor for St. Croix County.
The offender's home phone line is called either randomly or at specific times, such as within 30 minutes of the person arriving home from work, said O'Keefe.
When the offender gets the phone call, he or she must speak and blow into the Sobrietor.
"If they fail it, we call the police," said O'Keefe.
"They know they can't trick it, but some people are so chronic, they drink while they're on it," he admitted.
The real problems, said O'Keefe, come when the offenders are weaned off the Sobrietor. At that point, they have to rely on what they've learned in treatment to stay sober.
The St. Croix DOC office has six Sobrietors, and generally five are in use. O'Keefe said he could use two or three times that many.
"It's all about how you get people to change their behavior," said O'Boyle of dealing with alcohol and drug offenders.
Every person convicted of drunk driving, even the first offense, in Pierce County must complete a driver's safety plan. That requires them to attend a victim impact panel.
Sometimes, said O'Boyle, the panel reaches them on a different plane, an emotional level.
Judge Vlack said he'd like to be able to order supervision for more OWI offenders.
"You can't put somebody on probation for an operating while intoxicated until it's a fourth offense," he said. "That's frustrating."
He'd also like to see greater use of ignition interlocks, which require drivers to breathe into the device before starting their vehicle.
"That's something that should be used, quite frankly, more often than it is," said Vlack.
Requiring ignition interlocks after the second OWI conviction would be a good idea, agreed Wing: "I think that's fair and doable.
Bail or jail?
Vlack said he has required family members to co-sign signature bonds in the hopes they will monitor an offender's habits before sentencing.
He recalls a first appearance for a man charged with one OWI while a similar charge was still pending in another county.
Vlack said he was pretty sure the man would drink and drive again.
"So I said, 'OK bail is $10,000 cash.'"
He knew the man, who didn't have a job, couldn't come up with the money and would spend the next few weeks in jail.
But, said Vlack, "I've got to be able to sleep at night too."
"The problem is you're dealing with a person who's not guilty of anything," said Wing of setting bail so high that an accused person can't pay it.
"You hate to have a person who's not guilty spend all that time in jail," said Wing. He said the only justification for holding an accused person in jail is the likelihood they'll soon drink and drive again.
Also, he said, since a person held without bail can't get work release, the defendant will likely lose his job, if he has one, and the pre-sentencing time spent in jail will be deducted from the final jail sentence.
Since many people charged with OWI are indigent, any cash bond is too high, said Wing.
"You could say $1,000 but you might as well say $20 million," said Wing. "You're going to be storing people."
He suggested requiring ignition interlocks after the second offense and having more monitoring would be good steps toward slowing recidivism.
"It's a terribly frustrating thing," admitted Wing of finding the right tools. "It'd be nice if there were answers in the back of the book on these things."
Felony-level drunk driving used to be rare in Pierce County, but it no longer is, said Wing. "The question is, how do they get to that level?"
"I subscribe to the theory that alcoholism is a disease," said Wing. "That being said, that doesn't mean they have to drink."
Some people break the law because they are drunk, he said. Others are simply criminals who drink.
It's easier to give harsh sentences to bad people, said Wing, but it's harder to sentence good people who can't stay sober.
"They put people at risk. How many opportunities do you give them?" he asked. "Those are the hardest cases, to be really honest."
The more OWI offenses a defendant has, the more weight a judge gives to protecting the public rather than treating the offender, said Wing.
"Everyone agrees long-term treatment is the way to go," he said. But, said Wing, it may not work until the third, fourth or fifth time.
With some people the pull of addiction is so strong, he said, "It's almost like you have to put them in prison to get their attention."
"People gotta decide if they want to change their lives," agreed O'Boyle. "There is no magic bullet to any of this stuff."
By the time a person has gotten several convictions, he has already been assessed "unbelievably high" fines, he has lost his driver's license, and he has faced the threat of jail or prison, said O'Boyle.
"Maybe that's the only way you change their behavior -- by putting them in prison."