All 50 states and the District of Columbia have per se laws making it a crime to drive with a blood alcohol concentration (BAC) at or above a specified level, currently 0.08 percent (0.08 g alcohol per 100 ml blood).
Such laws are designed to serve two major functions. First, they are supposed to reduce the likelihood of recidivism (i.e., a specific deterrent effect) by imposing sanctions on people who are convicted of driving while intoxicated (DWI). Second, they are supposed to help to prevent impaired driving by the public at large (i.e., a general deterrent effect).
In the battle against drunk driving, while law enforcement efforts play an important role, unfortunately criminal penalties alone may not have a significant enough effect to deter convicted drunk drivers from doing it again much less to deter drunk drivers in general (drunk drivers who have never been caught).
Criminal sanctions alone are insufficient to deter repeat drunk drivers
Data based on State record systems that include 7 to 10 years of arrest information have indicated that the proportion of repeat offenders is more than 30 percent (Simpson et al. 1996). In other words, for up to one-third of drinking drivers involved in fatal crashes the courts have had a previous opportunity to intervene and reduce the risk of recidivism by implementing court programs. For example, data from the State of Michigan, which maintains a 10-year record of DWI convictions in its drivers file, indicate that 38 percent of first-time offenders commit a second offense (Michigan Office of Public Safety 1998). And, according to the NHTSA, drivers with a BAC level of .08 or higher who were in deadly accidents in 2012 were seven times more likely to have a prior conviction for drunk driving than were drivers with no alcohol.
While driver’s license suspension or revocation is usually involved in DWI cases (administrative license suspension is allowed in 41 states and the District of Columbia), the National Commission Against Drunk Driving (NCADD) estimates that up to 80 percent of DWI offenders will take the risk of driving with a suspended license.
Another common tool for convicted drunk drivers is to require an interlock device (a breath-testing unit that a driver must blow into before starting a vehicle). In fact, all states have laws either requiring interlocks for certain offenders or allowing courts to order interlocks at their discretion. However, a driver who wishes to thwart the law can usually do so. People who have ignition interlock devices in their cars can have a sober friend start the car for them.
Criminal sanctions alone are insufficient to deter other drunk drivers who have never been caught
Unfortunately a large proportion of motorists who are driving while intoxicated go undetected, as evidenced by the fact that at least two-thirds of the most serious (i.e., fatal) alcohol-involved crashes are caused by drinking drivers who have never before been apprehended by the police. This finding is confirmed by roadside breath-test surveys that determine the number of drinking drivers on U.S. roadways (Voas et al. 1998). Based on such surveys, estimates of the number of times a person drives drunk before being arrested have ranged from 300 (Voas and Hause 1987) to 2,000 (Borkenstein 1975). Consequently, both DWI arrests and crashes are infrequent occurrences for drunk drivers. This observation has two major implications:
- Few drivers coming before the courts for the first time for DWI are actually first-time offenders. Most have driven under the influence many times without being apprehended.
- Most people who drive while intoxicated do not get caught or are not involved in crashes.
This is where our civil justice system helps to combat DWIs in a meaningful way. Damages awarded in personal injury and wrongful death lawsuits serve as a strong deterrent to the individual and to the general public. As William C. Cooper points out in the Pepperdine Law Review, punitive damages deter an individual from drunk driving by hitting him “where he is most sensitive — his pocket book.” This is particularly true when juries allow large punitive damages in their verdict. These verdicts send a strong message to the public: “Drunk drivers will be held fully accountable for their actions.”
These civil jury verdicts (lawsuits brought against the drunk driver when he has injured or killed someone in a motor vehicle collision) have a different, and perhaps an even greater, deterrent effect than the criminal fines that are usually imposed. Throughout the United States, many criminal fines either are not collected or can be paid in increments over a long period of time and thus do not place a substantial financial burden on the drunk driver. Furthermore, courts frequently waive fines in order to enable the offender to afford to pay for a required treatment program. Consequently, fines are not often implemented to maximize deterrence (i.e., as a swift, certain, and substantial penalty).
On the other hand, civil jury verdicts against drunk drivers who cause an accident and hurt someone else can mean serious financial consequences to the drunk driver. These types of civil jury verdicts in the U.S. are closer to the more severe criminal fines imposed for DWI in some other western, industrialized countries such as Australia and Sweden. Studies there indicate that fines can be very effective deterrents, particularly the relatively high fines instituted in Scandinavian countries that are based on the offender’s income and the seriousness of the offense (e.g., the offender’s BAC at the time of the incident) (Nichols and Ross 1990). Similarly, civil juries in the U.S. often consider the seriousness of the offense and can sometimes consider the offender’s income or net worth in their punitive damage verdicts.
Based on the above, the civil jury system can be a powerful tool to help deter drunk driving and protect our communities.