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Penalizing recidivist drunk drivers in Indiana: Impediments to implementation
Accid. Anal. & Prev. %1ol. 19, No. 6, pp. 479-486, 1987
0001-4575/87 $3.00+ .00 © 1987 Pergamon Journals Ltd.
Printed in Great Britain.
PENALIZING INDIANA:
RECIDIVIST
IMPEDIMENTS
DRUNK TO
DRIVERS
IN
IMPLEMENTATION
JAMES P. FOLEY Automotive Transportation Center, Institute for Interdisciplinary Engineering Studies, A. A. Potter Engineering Center, Purdue University, West Lafayette, IN 47907, U.S.A. and JON D. FRICKER School of Civil Engineering, Purdue University, West Lafayette, IN 47907, U.S.A.
(Received 14 July 1986) Abstract--In 1983, Indiana enacted a law mandating that anyone convicted a second or subsequent time of Operating While Intoxicated (OWl) receive a minimum of 48 consecutivehours in jail or 10 days of community service. A representative random sample of Indiana counties was used to determine the extent of implementation of this law by the courts in 1984 and 1985. Analysis of the 1984 data concluded that nearly 70% of the cases did comply with the law in its first year of implementation. However, 13.8% of the recidivists received neither jail nor community service. Another /7.6% served some jail time and/or community service, but not of a sufficient length to comply with the law. Overall compliance increased to 75% in 1985, while the proportion who received neither jail nor communityservice increased to 17%. Several specific causes for noncompliance are identified and recommendations for their correction are offered. It is felt that the Indiana experience described in this paper will prove instructive to other states with newly-strengthened OWl laws. INTRODUCTION Interest in the problems associated with drunken driving has prompted changes in attitudes and laws throughout the United States. The National Highway Traffic Safety Administration has developed guidelines to aid individual states in establishing more etfective countermeasures. One such guideline is Criterion No. 2 for Incentive Grants fc r Alcohol Traffic Safety Programs [Federal Register, 1983]. The criterion states: A mandatory sentence, which shall not be subject to suspension or probation, of (1) imprisonment for not less than 48 consecutive hours, or (2) not less than ten days for community service, of any persons convicted of driving while intoxicated more than once in any five-year period. Indiana enacted such a law in September 1983 (IC 9-11). Once the law was in place the question of interest was: Are the mandates of the law being followed by the courts? The G o v e r n o r ' s Task Force to Reduce Drunk Driving requested the Automotive Transportation Center of Purdue University to provide the appropriate documentation on Indiana's compliance with the law. As states move to comply with such federal guidelines, the impact of such changes needs to be documented. The use of mandatory penalties has been questioned as possibly weakening, rather than strengthening, the court's hand [Tobias, 1968; Wilson, 1975], Whereas the intent is to insure punishment, the reality may be to increase the offender's ba,gaining power, thereby reducing the effectiveness and certainty of the charge. Indiana serves as a case history for such a documentation of the impact of the judicial response to the mandatory sanctions contained in a major legislative initiative to reduce drunk driving. Many states are concerned with the effects of such legislation and how to determine compliance with legislative intent [for example, Ross and A m a d e o Eineker, 1985]. The results of consecutive annual studies of recidivist penalties in Indiana [Foley, 1984; Foley et al., 1985] are analyzed in this paper.
479
480
J. P. FOLEYand J. D. FRICKER METHODOLOGY
Sampling procedures In D e c e m b e r 1984, the Indiana Bureau of Motor Vehicles (BMV) provided a listing by county of the number of individuals who, in 1984, were convicted of an Operating While Intoxicated (OWl) offense occurring within five years of a previous O W l conviction. The total number of such cases for each of Indiana's 92 counties was forwarded to the N H T S A Office of Alcohol Countermeasures. After analysis, the Office of Alcohol Countermeasures provided a multistage sampling scheme that comprised a representative sample for the state of Indiana. To insure a complete sample, the BMV provided a listing (in February 1985) of all individuals in each of the 15 selected counties who were second or subsequent OWl offenders in 1984. The data included the 1984 conviction date, the court of disposition, and descriptors of the individual. The sample of 1,069 cases was drawn from the total. Site visits were made to each court in the selected counties. A letter of introduction was provided by the Governor's Task Force to Reduce Drunk Driving for the data collection personnel. This introduction was instrumental in securing the cooperation of the courts to review their records. All the courts cooperated with the data collection effort and many were extraordinarily helpful. The driving history of each O W l offender was checked through the court record to determine if the prior conviction was more than five years before the offense leading to the 1984 conviction. If the previous conviction was more than five years old, that case was eliminated from the sample. However, there was insufficient documentation in most court records to allow an accurate determination of driver history, since most court records did not have the conviction date or other documentation of the prior O W l offense. If a case was missing or eliminated and the sampling frequency was greater than one, the next case on the printout was selected. Every effort was made to obtain a complete sample in each court. A review of the preliminary survey results concluded that the number of cases in the BMV listing for which the prior O W l conviction was more than five years prior to the 1984 offense was large enough (over 30%) that the sample statistics might be biased. To conclusively identify only those having a prior conviction within five years, the BMV complied with a request for another listing. The inclusion of all conviction dates for each individual allowed verification of the pertinent dates and the elimination of all nonqualifying individuals from the sample population. A total of 2,063 persons were verified as meeting the repeat offender criteria. Of this total, 753 were sampled. It was assumed that a court docket record showing the offender had served five days or more straight time (i.e., not served on weekends only) was sufficient proof of at least 48 consecutive hours being served. Further discussion on this point follows in the next section. In all counties, the serving of community service was taken directly from the court docket and not independently verified, due to the time constraints imposed by the deadline for providing documentations to N H T S A . All of the data were then entered into a personal computer for summation and analysis. The same procedures were followed for the 1985 survey with the following exceptions. The multistage sampling procedure was modified to coincide with a stratified random sample by county population. Since total population and recidivist population are highly correlated (Spearman Rank Order = .88), the procedures were comparable. For both years a weighted contribution for each county was calculated to allow estimates of statewide compliance to be developed.
Difficulties in data collection Dynamic databases. In virtually all counties, records for some of the cases on the BMV printout were unobtainable. In reviewing the discrepancies between court records and the BMV listing of convictions, it is important to remember that both the court and
Penalizing recidivist drunk drivers in Indiana
481
the BMV records are dynamic systems. Even a few days' difference in the time from when the sample is selected to when the record is reviewed will result in a lack of concurrence between the records. Some of the inconsistencies are, undoubtedly, simply human error; however, much is due to the difficulties in keeping such a large and dynamic database up-to-date. Such discrepancies have several explanations. There could have been further court action, such as an appeal, since the BMV record was entered that altered the disposition in the court record. The court order reflecting the change in the case status may not have been transmitted through the reporting system in time to be reflected accurately on the B M V printout. In some court records, the finding was guilty of another charge, such as public intoxication, rather than the OWl offense recorded by BMV. In other cases, a dismissal, rather than a conviction, was in the court records. In counties where records were particularly difficult to locate, a check was made for any felony conviction for OWI in the 1984 study. This revealed some felony convictions that were not reflected in the BMV record, even though the conviction date was early enough in the year that the BMV should have had time to place the conviction on the driving record. Record retrievability. Occasionally the court's filing system simply could not produce the hard copy for a case. In one city court, for example, as soon as enough cases were :losed, their records were boxed, sealed, and put in storage. This made retrieval of the ~tored records difficult and time consuming. In counties with multiple courts, cases that lad originated in one court and transferred to another were listed by BMV as having 9een adjudicated in the original court. This is probably the result of the docket number :lot being changed by the court when the case was reassigned. In only one county court group was there a computerized record system with sufficient detail to determine jail terms without pulling the hard copy of the court record. Another county court included jail terms on its computerized system, but it was necessary lo review the hard copy to determine if the 48 consecutive hours had been served. The computerized system also did not include a record of community service, again neces,itating a check of the hard copy. Nonuniform records. There is a wide variability in the courts' documentation, making an exact measure of compliance performance impossible. The counties selected for the sample are meant to provide an aggregate measure that is representative of the state, ~,,iven the appropriate weighting. Thus, comparisons between counties are not particularly raeaningful, except as an indication of variance within the sample. The range of compliance (within a county) was from 100% to a low of 26% in 1984, and from 100% to low of 40% in 1985. This wide range of compliance percentages is not necessarily due t3 sentencing error when the driving history is known, for in some courts there was no review of the driving record. A specific example of this variability in documentation is provided by a closer examination of one county. If it was assumed that only those offenders who had served 30 or more days in jail met the 48 consecutive hour guideline, the county's compliance was 55%. Further examination of the court records system and a review of jail records led to the acceptance of the assumption that anyone showing five or more consecutive days served did spend at least 48 consecutive hours in jail. The exceptions to this ass~Jmption were rare enough to allow it to stand. Upon recalculation, the overall compliance was raised to 71%. In reviewing these results with the prosecutor in charge of O W l for this county, he f~;lt even the 71% compliance rate might be a low estimate. As a spot-check on the court records, he provided the most recent month's disposition sheets for repeat O W l offenders ir~t his county. Only one out of the 48 cases tried as repeat offenders did not comply with the guidelines--98% compliance. However, the prosecutors' disposition sheets included o~aly those cases known at the time of trial to have a prior OWI. Frequently, repeat offenders were not correctly identified at the time the case was disposed. Thus, it can be seen how critical the identification of the repeat offender is to the sanctions applied by the court.
J. P. FOLEYand J. D. FRICKER
482
Table 1. 1984 Sample general description Total Repeat County Offenders A 1130 B 412 C 333 D 153 E 189 F 154 G 148 H 123 I 109 J 93 K 51 L 42 M 29 N 21 O
TOTAL
24
3011
Integer Selection County Selection Obtained Sel/Wgt (W) Ratio Sample(N) 1.000 6 125 1.076 6 47 1.286 5 47 2.106 3 31 2.267 2 63 2.725 2 60 2.856 2 51 4.014 1 87 4.641 1 72 5.034 1 67 5.457 1 25 8.735 1 34 11.880 1 15 14.850 1 12 22.846 1 17 753
In i n t e r p r e t i n g the results o f this s t u d y , t h e r e a d e r s h o u l d k e e p in m i n d t h a t t h e s t u d y is d e p e n d e n t o n m a n y i n d e p e n d e n t c o u r t r e c o r d systems. T h e r e is a g r e a t d e a l o f v a r i a n c e within a n d b e t w e e n t h e s e systems. A t t i m e s , t h e s e r e c o r d s a r e difficult if n o t i m p o s s i b l e to o b t a i n . A l s o , t h e i n t e r p r e t a t i o n of t h e i n f o r m a t i o n w i t h i n t h o s e r e c o r d s is o c c a s i o n a l l y o p e n to d i s c r e t i o n . Thus, the results' of the study should be considered an
indication of compliance and policy, and not an exact representation.* RESULTS T a b l e s 1 a n d 2 give t h e g e n e r a l d e s c r i p t i o n o f t h e s e s a m p l e s for 1984 a n d 1985, r e s p e c t i v e l y . T h e n u m b e r o f p e r s o n s r e c e i v i n g 48 c o n s e c u t i v e h o u r s in jail ( J ) a n d t h o s e w h o d i d n o t b u t s e r v e d 10 o r m o r e d a y s of c o m m u n i t y service (CS) was d e t e r m i n e d for e a c h c o u n t y in t h e s a m p l e . T h e c o u n t y s e l e c t i o n weight ( W ) was t h e n u s e d to e s t i m a t e s t a t e w i d e c o m p l i a n c e p as follows:
x ( w ( J + cs)) P =
~(WN)
D e s p i t e t h e p r o h i b i t i o n in I C 9-11-3-4(c) against " g o o d t i m e credit,"-? s o m e c o u r t s specifically s t a t e d o n t h e jail c o m m i t m e n t p a p e r s t h a t such c r e d i t will b e g r a n t e d . T h i s was p a r t i c u l a r l y p r e v a l e n t in 1984. B e c a u s e of t h e f r e q u e n t inclusion of g o o d t i m e c r e d i t , if t h e s e n t e n c e to b e s e r v e d was n o t at least 10 d a y s , it c a n n o t be a s s u m e d t h a t five d a y s w e r e s e r v e d . T h e c o u r t r e c o r d m u s t i n d i c a t e a m i n i m u m j a i l t e r m of five c o n s e c u t i v e d a y s was s e r v e d to b e a b l e to safely a s s u m e t h a t t h e i n d i v i d u a l d i d s e r v e at l e a s t 48 c o n s e c u t i v e h o u r s . In g e n e r a l , o f f e n d e r s serving t h e i r t i m e on w e e k e n d s d i d n o t s e r v e 48 c o n s e c u t i v e hours. Jail r e c o r d s i n d i c a t e t h a t the typical w e e k e n d r e p o r t i n g t i m e is F r i d a y e v e n i n g a r o u n d 6:00 o r 7:00 PM, with r e l e a s e by n o o n on S u n d a y . A s a result, if t h e c o u r t r e c o r d i n d i c a t e d t h e t e r m was s e r v e d on w e e k e n d s , it was n o t c o u n t e d as a c o n s e c u t i v e t e r m o f 48 hours. O n e i n t e r e s t i n g t r e n d o b s e r v e d in 1985 was for s o m e c o u r t s to specify t h e t i m e o f i n c a r c e r a t i o n a n d r e l e a s e f r o m t h e jail. Jail t e r m s w e r e u s e d far m o r e f r e q u e n t l y t h a n c o m m u n i t y service to c o m p l y with t h e m a n d a t e s of t h e law. B o t h y e a r s h a d a r a n g e of s e n t e n c e s f r o m 0 to 1,460 d a y s ( f o u r y e a r s ) with 365 t h e m o d a l v a l u e . In g e n e r a l , w h i l e a recidivist was s e n t e n c e d to a y e a r in jail, all e x c e p t 5 - 1 0 d a y s w e r e s u s p e n d e d . S e r v i n g s h o r t jail t e r m s a r e t h e rule, n o t t h e e x c e p t i o n , for d r u n k e n drivers with r e p e a t convic*The sample was found to be homogeneous and normal across strata and time periods. The assumed Coefficient of Variation was 150%, reflecting the actual variation found within-group. tGood time credit is receiving credit for serving a day in jail for each day served. Each partial day served is equated to a full day. Thus, someone booked at 10:00 PM and released at 6:00 AM would be considered to have served four days, two served plus two good time credit.
Penalizing recidivist drunk drivers in Indiana
483
Table 2. 1985 Sample general description Total County Recidivists SelectiopWt. 1985
County A B C D ~E F IG H
I J K L M
T O TAL
Integer Selection Ratio
955 259 207 145 129 114 84 82 58 33 32
1.000 1.521 1.903 2.717 3.054 3.456 4.690 4.805 6.793 11.939 12.312
7 4 3 2 2 2 1 1 1 i
17
23.176
1 1
8 2123
156 66 66 72 55 57 83 79 56 33 31 17 8
1
49.250
Obtained Sample
:ions. There were a few recidivists who served two years or more in jail. Undoubtedly, ~:hese people had aggravating circumstances such as causing a fatal injury or three or more DUI convictions. With the 1983 law, the BMV was empowered to administratively suspend the driver's license upon the receipt of a probable cause affidavit from the court. The judge's suspension of driving privileges is a separate action. In 1984 there appeared to be some confusion about the separation of court and administrative suspensions. In the 1985 study, license suspensions were more uniform and 95% of convictions were accomplished by the appropriate minimum license suspension (90 days for OWI or 365 days for OWI felony). Overall, repeat convictions as determined from BMV records increased by 12.6% f::om 5,051 individuals in 1984 to 5,689 in 1985. There were 69 counties that had increases, 21 that had decreases and 2 counties were unchanged. The number of repeat offenders per county for 1984 and 1985 was analyzed via a chi-square test. The chi-square was significant (×2 = 2.10.2; df = 91; p < .05), indicating that the distribution of repeat offenders was not the same between the two years. A closer look at the data will reveal more details regarding those differences. Table 3 (and Fig. 1) provides an overview of the changes occurring between 1984 and 1985. Overall compliance to the law has increased from 69.7% to 75.1%, a very encouraging finding. This seems to have been accomplished by an increased emphasis on community service. Given the overcrowding of many jails and the fact that many offenders may still be considered productive members of society, this trend is understandable. Another shift observed was an increase from 13.8% to 17% of persons receiving neither jail nor community service upon their second or subsequent conviction. Propc:,rtionally fewer persons are falling into the gray area between mandated penalties and nc, penalties. Table 3. Estimates of changes in statewide compliance from 1984 to 1985 1984-1985 1984
1985
Change
Persons
64.1
61.1
-3.0
Persons Serving 10 Days Community Service
5.6
14.0
+8.4
Persons Receiving Mandated Penalty
69.7
75.1
+5.4
Persons Receiving Sentences Less than Mandated Penalty
16.5
7.9
-8.6
Persons Serving No Community Service
13.8
17.0
+3.2
Estimated Percentage Serving 48 Hours
of
Jail
and
No
484
J. P. FOLEY and J. D. FRICKER
48houri
48
~ N o Jail orC513,8~ Commun|ty 5erv|ce 5.8~ LiIIIIIUlanMondoted
houcm
~ N o Community Service
1984
dollorCS Leg=thanUo.~date7.9~ d
1985
Fig. 1. Changes in penalties.
DISCUSSION
The purpose of this study was not to determine the reasons for compliance or noncompliance, but to document adherence to the law. Therefore, the quantitative figures presented do not address the circumstances surrounding the issue of penalizing recidivist drunk drivers. The increase in recidivists between 1984 and 1985 is supported by the deterrence hypothesis, which states that illegal behavior will be inhibited to the extent that the punishment is perceived to be swift, certain, and severe (Ross, 1984). If more stringent laws and their vigorous enforcement do indeed deter persons from drinking and driving, then those most likely to alter their behavior are, generally, a more responsible part of the drinking and driving population. Those with alcohol problems and/or antisocial behavior are less likely to be d e t e r r e d - - a n d thus more likely to become recidivists. If this trend continues and the population convicted of drunk driving becomes dominated by such repeat offenders, new countermeasures may be called for to address the changing target population. In summary, while three-fourths of the recidivists in Indiana for 1985 do receive proper sentencing, there are 8 percent who receive some jail and/or community service, but not the mandated sentence, and 17% who serve neither jail nor community service. Without complete compliance to the mandatory sentence, the intent of the law is not being executed. In some cases, the lack of compliance is due to the court being unaware of the proper sentence; in other instances the court simply ignored the law. Indeed, Ross [1984] addresses the court acceptance of legislative mandate, stating the courts: "can be expected to resist innovations that overturn the established way of doing things, especially when such innovations are considered extreme and unfair" (p. 96). RECOMMENDATIONS
Although this study is based on a sample of counties in Indiana, it is likely that many of the states complying to federal guidelines with newly strengthened O W l laws face problems similar to those uncovered in this study. The following recommendations address these problems: 1. Courts frequently need to be made aware of the discrepancies between the penalties mandated by law, sentences imposed by the court, and the sentences served. 2. All courts should have knowledge of driver history at the time of sentencing, so that the sanction imposed would comply with the dictates of the law. In many cases, repeat offenders were not so identified at the time of sentencing. 3. Courts should specify the time of incarceration and release to insure that 48 consecutive hours are served. 4. Information from court records should be in a standardized format for data that must be passed on to outside agencies such as the BMV. If a careful review of the court's own files, as was done for this study, results in less than complete information, then the information sent to others may be misleading. Standardized information should facilitate
Penalizing recidivist drunk drivers in Indiana
485
d a t a t r a n s f e r a n d h e l p insure t h e p r o v i s i o n s o f t h e recidivist O W I law ar e b e i n g c a r r i e d out. 5. A d d i t i o n a l r e s e a r c h s h o u l d be u n d e r t a k e n to i d e n t i f y w h y a h i g h e r p r o p o r t i o n of recidivists r e c e i v e d no jail o r c o m m u n i t y service, while o v e r a l l c o m p l i a n c e to t h e m a n d a t o r y s e n t e n c i n g has i n c r e a s e d . Acknowledgements--This report was prepared in cooperation with the Governor's Task Force to Reduce Drunk Driving, the U.S. Department of Transportation, and the National Highway Traffic Safety Administration. Support of these organizations is gratefully acknowledged. We would also like to thank the court systems in the sampled counties for their valuable assistance in preparing this report. Findings, conclusions, and recommendations in this report are solely the authors', and do not necessarily reflect the view of the Governor's Task Force to Reduce Drunk Driving, or the National Highway Traffic Safety Administration. REFERENCES Federal Register, Rules and Regulations. February 7, 1983. Foley J. P., Drunk Driver Recidivist Penalities in Indiana for 1984. A report to the Governor's Task Force to Reduce Drunk Driving, 1984. Foley J. P., Doherty M. J. and Habegger J. E., Drunk Driver Recidivist Penalities in Indiana for 1985. A report to the Governor's Task Force to Reduce Drunk Driving, 1985. Ross H. L. and Amadeo-Eineker S., Compliance with Mandatory Sentencing for Repeat Drunk-Driving Offenders in New Mexico. University of New Mexico, 1985, unpublished. Ross H. L., Deterring the Drinking Driver. Lexington Books, Lexington, Massachusetts, 1984. Tobias J., Crime and Industrial Society in the 19th Century. Shocken Books, New York, 1968. 7¢ilson J., Thinking About Crime. Basic Book, New York, 1975. APPENDIX: SAMPLING P R O C E D U R E RESULTS Total Cases (N) Mean (M) Std. Dev. Assumed Population Coefficient of Variation (CV) Desired Reliability (RE) Sample Size Required (SSR) Number of Counties Required (CR) First Selection Interval (FSI) Number of Counties Greater than FSI (C1) Second Selection Interval (SSI)
5689 61.8 108 150 5 777 13 437 1 394
D E F I N I T I O N OF TERMS A ~sumed population coefficient of variation (CV) A statistical assumption* of the ratio of the population variance to its mean. Desired reliability (RE)* A statistical assumption of the acceptable range for the obtained value. In this case a value of -+5 percent ot the true proportion was deemed acceptable. S~mple size required ( SS) The number of cases needed for a valid and reliable sample. Calculated from: SS-
CV 2 RE 2 + CV2/N
Number of counties required (CR) This value is obtained by dividing the sample size required by the mean number of recidivists in the counties. SS CR=-M *Estimated values provided by NHTSA Office of Alcohol Countermeasures.
486
J.P. FOLEY and J. D. FRICKER
First selection interval ( FSI) This is simply the population total divided by the number of counties required for the sample. N FS1 = - CR
Second selection interval ( SSI) The size of the second selection interval is the total population less the population of the counties in the FSI divided by the number of counties required less the counties in the FSI. SSI=
N - # in First Interval CR - C1
County selection weight ( CSW) Each county is weighted by a factor to estimate its contribution to the overall performance of the state. This CSW is calculated by dividing the second selection interval value of 394 by the number of second offender cases in the county. For example, in County C, the county selection weight is 394 divided by 207 or 1.903. CSW -
SS1 # in County
Sample allocation ( SA ) The sample allocation or proportion of cases that would ideally be accounted for by each county is computed as follows. The number of cases times the CSW is divided by the total population. The result is then multiplied by the desired sample size. For example, county C is 207 times 1.903 divided by 5689. This is multipled by 777 to yield a SA of 54. SA = [ County Recidivist Population * C S W ] N * SSR Integer selection ratio ( ISR ) It is not feasible or desirable to take every case in every county. In larger counties some sampling must take place. To determine the sampling frequency, the number of repeat offenders in a county is divided by the sample allocation. This number is truncated to a whole integer. For a small county, the integer is one even though the division results in a fraction less than one. The number of repeat offenders in the county is divided by the ISR to obtain the expected sample. For example, in County C, the ISR is equal to 207 divided by 54 to yield 3. ISR = County Recidivist Population SA Weight o f county's contribution ( W ) The C S W is then multipled by the ISR to weight each county's contribution to the percentage of second offenders serving the mandated penalties. W = C S W * ISR
0001-4575/87 $3.00+ .00 © 1987 Pergamon Journals Ltd.
Printed in Great Britain.
PENALIZING INDIANA:
RECIDIVIST
IMPEDIMENTS
DRUNK TO
DRIVERS
IN
IMPLEMENTATION
JAMES P. FOLEY Automotive Transportation Center, Institute for Interdisciplinary Engineering Studies, A. A. Potter Engineering Center, Purdue University, West Lafayette, IN 47907, U.S.A. and JON D. FRICKER School of Civil Engineering, Purdue University, West Lafayette, IN 47907, U.S.A.
(Received 14 July 1986) Abstract--In 1983, Indiana enacted a law mandating that anyone convicted a second or subsequent time of Operating While Intoxicated (OWl) receive a minimum of 48 consecutivehours in jail or 10 days of community service. A representative random sample of Indiana counties was used to determine the extent of implementation of this law by the courts in 1984 and 1985. Analysis of the 1984 data concluded that nearly 70% of the cases did comply with the law in its first year of implementation. However, 13.8% of the recidivists received neither jail nor community service. Another /7.6% served some jail time and/or community service, but not of a sufficient length to comply with the law. Overall compliance increased to 75% in 1985, while the proportion who received neither jail nor communityservice increased to 17%. Several specific causes for noncompliance are identified and recommendations for their correction are offered. It is felt that the Indiana experience described in this paper will prove instructive to other states with newly-strengthened OWl laws. INTRODUCTION Interest in the problems associated with drunken driving has prompted changes in attitudes and laws throughout the United States. The National Highway Traffic Safety Administration has developed guidelines to aid individual states in establishing more etfective countermeasures. One such guideline is Criterion No. 2 for Incentive Grants fc r Alcohol Traffic Safety Programs [Federal Register, 1983]. The criterion states: A mandatory sentence, which shall not be subject to suspension or probation, of (1) imprisonment for not less than 48 consecutive hours, or (2) not less than ten days for community service, of any persons convicted of driving while intoxicated more than once in any five-year period. Indiana enacted such a law in September 1983 (IC 9-11). Once the law was in place the question of interest was: Are the mandates of the law being followed by the courts? The G o v e r n o r ' s Task Force to Reduce Drunk Driving requested the Automotive Transportation Center of Purdue University to provide the appropriate documentation on Indiana's compliance with the law. As states move to comply with such federal guidelines, the impact of such changes needs to be documented. The use of mandatory penalties has been questioned as possibly weakening, rather than strengthening, the court's hand [Tobias, 1968; Wilson, 1975], Whereas the intent is to insure punishment, the reality may be to increase the offender's ba,gaining power, thereby reducing the effectiveness and certainty of the charge. Indiana serves as a case history for such a documentation of the impact of the judicial response to the mandatory sanctions contained in a major legislative initiative to reduce drunk driving. Many states are concerned with the effects of such legislation and how to determine compliance with legislative intent [for example, Ross and A m a d e o Eineker, 1985]. The results of consecutive annual studies of recidivist penalties in Indiana [Foley, 1984; Foley et al., 1985] are analyzed in this paper.
479
480
J. P. FOLEYand J. D. FRICKER METHODOLOGY
Sampling procedures In D e c e m b e r 1984, the Indiana Bureau of Motor Vehicles (BMV) provided a listing by county of the number of individuals who, in 1984, were convicted of an Operating While Intoxicated (OWl) offense occurring within five years of a previous O W l conviction. The total number of such cases for each of Indiana's 92 counties was forwarded to the N H T S A Office of Alcohol Countermeasures. After analysis, the Office of Alcohol Countermeasures provided a multistage sampling scheme that comprised a representative sample for the state of Indiana. To insure a complete sample, the BMV provided a listing (in February 1985) of all individuals in each of the 15 selected counties who were second or subsequent OWl offenders in 1984. The data included the 1984 conviction date, the court of disposition, and descriptors of the individual. The sample of 1,069 cases was drawn from the total. Site visits were made to each court in the selected counties. A letter of introduction was provided by the Governor's Task Force to Reduce Drunk Driving for the data collection personnel. This introduction was instrumental in securing the cooperation of the courts to review their records. All the courts cooperated with the data collection effort and many were extraordinarily helpful. The driving history of each O W l offender was checked through the court record to determine if the prior conviction was more than five years before the offense leading to the 1984 conviction. If the previous conviction was more than five years old, that case was eliminated from the sample. However, there was insufficient documentation in most court records to allow an accurate determination of driver history, since most court records did not have the conviction date or other documentation of the prior O W l offense. If a case was missing or eliminated and the sampling frequency was greater than one, the next case on the printout was selected. Every effort was made to obtain a complete sample in each court. A review of the preliminary survey results concluded that the number of cases in the BMV listing for which the prior O W l conviction was more than five years prior to the 1984 offense was large enough (over 30%) that the sample statistics might be biased. To conclusively identify only those having a prior conviction within five years, the BMV complied with a request for another listing. The inclusion of all conviction dates for each individual allowed verification of the pertinent dates and the elimination of all nonqualifying individuals from the sample population. A total of 2,063 persons were verified as meeting the repeat offender criteria. Of this total, 753 were sampled. It was assumed that a court docket record showing the offender had served five days or more straight time (i.e., not served on weekends only) was sufficient proof of at least 48 consecutive hours being served. Further discussion on this point follows in the next section. In all counties, the serving of community service was taken directly from the court docket and not independently verified, due to the time constraints imposed by the deadline for providing documentations to N H T S A . All of the data were then entered into a personal computer for summation and analysis. The same procedures were followed for the 1985 survey with the following exceptions. The multistage sampling procedure was modified to coincide with a stratified random sample by county population. Since total population and recidivist population are highly correlated (Spearman Rank Order = .88), the procedures were comparable. For both years a weighted contribution for each county was calculated to allow estimates of statewide compliance to be developed.
Difficulties in data collection Dynamic databases. In virtually all counties, records for some of the cases on the BMV printout were unobtainable. In reviewing the discrepancies between court records and the BMV listing of convictions, it is important to remember that both the court and
Penalizing recidivist drunk drivers in Indiana
481
the BMV records are dynamic systems. Even a few days' difference in the time from when the sample is selected to when the record is reviewed will result in a lack of concurrence between the records. Some of the inconsistencies are, undoubtedly, simply human error; however, much is due to the difficulties in keeping such a large and dynamic database up-to-date. Such discrepancies have several explanations. There could have been further court action, such as an appeal, since the BMV record was entered that altered the disposition in the court record. The court order reflecting the change in the case status may not have been transmitted through the reporting system in time to be reflected accurately on the B M V printout. In some court records, the finding was guilty of another charge, such as public intoxication, rather than the OWl offense recorded by BMV. In other cases, a dismissal, rather than a conviction, was in the court records. In counties where records were particularly difficult to locate, a check was made for any felony conviction for OWI in the 1984 study. This revealed some felony convictions that were not reflected in the BMV record, even though the conviction date was early enough in the year that the BMV should have had time to place the conviction on the driving record. Record retrievability. Occasionally the court's filing system simply could not produce the hard copy for a case. In one city court, for example, as soon as enough cases were :losed, their records were boxed, sealed, and put in storage. This made retrieval of the ~tored records difficult and time consuming. In counties with multiple courts, cases that lad originated in one court and transferred to another were listed by BMV as having 9een adjudicated in the original court. This is probably the result of the docket number :lot being changed by the court when the case was reassigned. In only one county court group was there a computerized record system with sufficient detail to determine jail terms without pulling the hard copy of the court record. Another county court included jail terms on its computerized system, but it was necessary lo review the hard copy to determine if the 48 consecutive hours had been served. The computerized system also did not include a record of community service, again neces,itating a check of the hard copy. Nonuniform records. There is a wide variability in the courts' documentation, making an exact measure of compliance performance impossible. The counties selected for the sample are meant to provide an aggregate measure that is representative of the state, ~,,iven the appropriate weighting. Thus, comparisons between counties are not particularly raeaningful, except as an indication of variance within the sample. The range of compliance (within a county) was from 100% to a low of 26% in 1984, and from 100% to low of 40% in 1985. This wide range of compliance percentages is not necessarily due t3 sentencing error when the driving history is known, for in some courts there was no review of the driving record. A specific example of this variability in documentation is provided by a closer examination of one county. If it was assumed that only those offenders who had served 30 or more days in jail met the 48 consecutive hour guideline, the county's compliance was 55%. Further examination of the court records system and a review of jail records led to the acceptance of the assumption that anyone showing five or more consecutive days served did spend at least 48 consecutive hours in jail. The exceptions to this ass~Jmption were rare enough to allow it to stand. Upon recalculation, the overall compliance was raised to 71%. In reviewing these results with the prosecutor in charge of O W l for this county, he f~;lt even the 71% compliance rate might be a low estimate. As a spot-check on the court records, he provided the most recent month's disposition sheets for repeat O W l offenders ir~t his county. Only one out of the 48 cases tried as repeat offenders did not comply with the guidelines--98% compliance. However, the prosecutors' disposition sheets included o~aly those cases known at the time of trial to have a prior OWI. Frequently, repeat offenders were not correctly identified at the time the case was disposed. Thus, it can be seen how critical the identification of the repeat offender is to the sanctions applied by the court.
J. P. FOLEYand J. D. FRICKER
482
Table 1. 1984 Sample general description Total Repeat County Offenders A 1130 B 412 C 333 D 153 E 189 F 154 G 148 H 123 I 109 J 93 K 51 L 42 M 29 N 21 O
TOTAL
24
3011
Integer Selection County Selection Obtained Sel/Wgt (W) Ratio Sample(N) 1.000 6 125 1.076 6 47 1.286 5 47 2.106 3 31 2.267 2 63 2.725 2 60 2.856 2 51 4.014 1 87 4.641 1 72 5.034 1 67 5.457 1 25 8.735 1 34 11.880 1 15 14.850 1 12 22.846 1 17 753
In i n t e r p r e t i n g the results o f this s t u d y , t h e r e a d e r s h o u l d k e e p in m i n d t h a t t h e s t u d y is d e p e n d e n t o n m a n y i n d e p e n d e n t c o u r t r e c o r d systems. T h e r e is a g r e a t d e a l o f v a r i a n c e within a n d b e t w e e n t h e s e systems. A t t i m e s , t h e s e r e c o r d s a r e difficult if n o t i m p o s s i b l e to o b t a i n . A l s o , t h e i n t e r p r e t a t i o n of t h e i n f o r m a t i o n w i t h i n t h o s e r e c o r d s is o c c a s i o n a l l y o p e n to d i s c r e t i o n . Thus, the results' of the study should be considered an
indication of compliance and policy, and not an exact representation.* RESULTS T a b l e s 1 a n d 2 give t h e g e n e r a l d e s c r i p t i o n o f t h e s e s a m p l e s for 1984 a n d 1985, r e s p e c t i v e l y . T h e n u m b e r o f p e r s o n s r e c e i v i n g 48 c o n s e c u t i v e h o u r s in jail ( J ) a n d t h o s e w h o d i d n o t b u t s e r v e d 10 o r m o r e d a y s of c o m m u n i t y service (CS) was d e t e r m i n e d for e a c h c o u n t y in t h e s a m p l e . T h e c o u n t y s e l e c t i o n weight ( W ) was t h e n u s e d to e s t i m a t e s t a t e w i d e c o m p l i a n c e p as follows:
x ( w ( J + cs)) P =
~(WN)
D e s p i t e t h e p r o h i b i t i o n in I C 9-11-3-4(c) against " g o o d t i m e credit,"-? s o m e c o u r t s specifically s t a t e d o n t h e jail c o m m i t m e n t p a p e r s t h a t such c r e d i t will b e g r a n t e d . T h i s was p a r t i c u l a r l y p r e v a l e n t in 1984. B e c a u s e of t h e f r e q u e n t inclusion of g o o d t i m e c r e d i t , if t h e s e n t e n c e to b e s e r v e d was n o t at least 10 d a y s , it c a n n o t be a s s u m e d t h a t five d a y s w e r e s e r v e d . T h e c o u r t r e c o r d m u s t i n d i c a t e a m i n i m u m j a i l t e r m of five c o n s e c u t i v e d a y s was s e r v e d to b e a b l e to safely a s s u m e t h a t t h e i n d i v i d u a l d i d s e r v e at l e a s t 48 c o n s e c u t i v e h o u r s . In g e n e r a l , o f f e n d e r s serving t h e i r t i m e on w e e k e n d s d i d n o t s e r v e 48 c o n s e c u t i v e hours. Jail r e c o r d s i n d i c a t e t h a t the typical w e e k e n d r e p o r t i n g t i m e is F r i d a y e v e n i n g a r o u n d 6:00 o r 7:00 PM, with r e l e a s e by n o o n on S u n d a y . A s a result, if t h e c o u r t r e c o r d i n d i c a t e d t h e t e r m was s e r v e d on w e e k e n d s , it was n o t c o u n t e d as a c o n s e c u t i v e t e r m o f 48 hours. O n e i n t e r e s t i n g t r e n d o b s e r v e d in 1985 was for s o m e c o u r t s to specify t h e t i m e o f i n c a r c e r a t i o n a n d r e l e a s e f r o m t h e jail. Jail t e r m s w e r e u s e d far m o r e f r e q u e n t l y t h a n c o m m u n i t y service to c o m p l y with t h e m a n d a t e s of t h e law. B o t h y e a r s h a d a r a n g e of s e n t e n c e s f r o m 0 to 1,460 d a y s ( f o u r y e a r s ) with 365 t h e m o d a l v a l u e . In g e n e r a l , w h i l e a recidivist was s e n t e n c e d to a y e a r in jail, all e x c e p t 5 - 1 0 d a y s w e r e s u s p e n d e d . S e r v i n g s h o r t jail t e r m s a r e t h e rule, n o t t h e e x c e p t i o n , for d r u n k e n drivers with r e p e a t convic*The sample was found to be homogeneous and normal across strata and time periods. The assumed Coefficient of Variation was 150%, reflecting the actual variation found within-group. tGood time credit is receiving credit for serving a day in jail for each day served. Each partial day served is equated to a full day. Thus, someone booked at 10:00 PM and released at 6:00 AM would be considered to have served four days, two served plus two good time credit.
Penalizing recidivist drunk drivers in Indiana
483
Table 2. 1985 Sample general description Total County Recidivists SelectiopWt. 1985
County A B C D ~E F IG H
I J K L M
T O TAL
Integer Selection Ratio
955 259 207 145 129 114 84 82 58 33 32
1.000 1.521 1.903 2.717 3.054 3.456 4.690 4.805 6.793 11.939 12.312
7 4 3 2 2 2 1 1 1 i
17
23.176
1 1
8 2123
156 66 66 72 55 57 83 79 56 33 31 17 8
1
49.250
Obtained Sample
:ions. There were a few recidivists who served two years or more in jail. Undoubtedly, ~:hese people had aggravating circumstances such as causing a fatal injury or three or more DUI convictions. With the 1983 law, the BMV was empowered to administratively suspend the driver's license upon the receipt of a probable cause affidavit from the court. The judge's suspension of driving privileges is a separate action. In 1984 there appeared to be some confusion about the separation of court and administrative suspensions. In the 1985 study, license suspensions were more uniform and 95% of convictions were accomplished by the appropriate minimum license suspension (90 days for OWI or 365 days for OWI felony). Overall, repeat convictions as determined from BMV records increased by 12.6% f::om 5,051 individuals in 1984 to 5,689 in 1985. There were 69 counties that had increases, 21 that had decreases and 2 counties were unchanged. The number of repeat offenders per county for 1984 and 1985 was analyzed via a chi-square test. The chi-square was significant (×2 = 2.10.2; df = 91; p < .05), indicating that the distribution of repeat offenders was not the same between the two years. A closer look at the data will reveal more details regarding those differences. Table 3 (and Fig. 1) provides an overview of the changes occurring between 1984 and 1985. Overall compliance to the law has increased from 69.7% to 75.1%, a very encouraging finding. This seems to have been accomplished by an increased emphasis on community service. Given the overcrowding of many jails and the fact that many offenders may still be considered productive members of society, this trend is understandable. Another shift observed was an increase from 13.8% to 17% of persons receiving neither jail nor community service upon their second or subsequent conviction. Propc:,rtionally fewer persons are falling into the gray area between mandated penalties and nc, penalties. Table 3. Estimates of changes in statewide compliance from 1984 to 1985 1984-1985 1984
1985
Change
Persons
64.1
61.1
-3.0
Persons Serving 10 Days Community Service
5.6
14.0
+8.4
Persons Receiving Mandated Penalty
69.7
75.1
+5.4
Persons Receiving Sentences Less than Mandated Penalty
16.5
7.9
-8.6
Persons Serving No Community Service
13.8
17.0
+3.2
Estimated Percentage Serving 48 Hours
of
Jail
and
No
484
J. P. FOLEY and J. D. FRICKER
48houri
48
~ N o Jail orC513,8~ Commun|ty 5erv|ce 5.8~ LiIIIIIUlanMondoted
houcm
~ N o Community Service
1984
dollorCS Leg=thanUo.~date7.9~ d
1985
Fig. 1. Changes in penalties.
DISCUSSION
The purpose of this study was not to determine the reasons for compliance or noncompliance, but to document adherence to the law. Therefore, the quantitative figures presented do not address the circumstances surrounding the issue of penalizing recidivist drunk drivers. The increase in recidivists between 1984 and 1985 is supported by the deterrence hypothesis, which states that illegal behavior will be inhibited to the extent that the punishment is perceived to be swift, certain, and severe (Ross, 1984). If more stringent laws and their vigorous enforcement do indeed deter persons from drinking and driving, then those most likely to alter their behavior are, generally, a more responsible part of the drinking and driving population. Those with alcohol problems and/or antisocial behavior are less likely to be d e t e r r e d - - a n d thus more likely to become recidivists. If this trend continues and the population convicted of drunk driving becomes dominated by such repeat offenders, new countermeasures may be called for to address the changing target population. In summary, while three-fourths of the recidivists in Indiana for 1985 do receive proper sentencing, there are 8 percent who receive some jail and/or community service, but not the mandated sentence, and 17% who serve neither jail nor community service. Without complete compliance to the mandatory sentence, the intent of the law is not being executed. In some cases, the lack of compliance is due to the court being unaware of the proper sentence; in other instances the court simply ignored the law. Indeed, Ross [1984] addresses the court acceptance of legislative mandate, stating the courts: "can be expected to resist innovations that overturn the established way of doing things, especially when such innovations are considered extreme and unfair" (p. 96). RECOMMENDATIONS
Although this study is based on a sample of counties in Indiana, it is likely that many of the states complying to federal guidelines with newly strengthened O W l laws face problems similar to those uncovered in this study. The following recommendations address these problems: 1. Courts frequently need to be made aware of the discrepancies between the penalties mandated by law, sentences imposed by the court, and the sentences served. 2. All courts should have knowledge of driver history at the time of sentencing, so that the sanction imposed would comply with the dictates of the law. In many cases, repeat offenders were not so identified at the time of sentencing. 3. Courts should specify the time of incarceration and release to insure that 48 consecutive hours are served. 4. Information from court records should be in a standardized format for data that must be passed on to outside agencies such as the BMV. If a careful review of the court's own files, as was done for this study, results in less than complete information, then the information sent to others may be misleading. Standardized information should facilitate
Penalizing recidivist drunk drivers in Indiana
485
d a t a t r a n s f e r a n d h e l p insure t h e p r o v i s i o n s o f t h e recidivist O W I law ar e b e i n g c a r r i e d out. 5. A d d i t i o n a l r e s e a r c h s h o u l d be u n d e r t a k e n to i d e n t i f y w h y a h i g h e r p r o p o r t i o n of recidivists r e c e i v e d no jail o r c o m m u n i t y service, while o v e r a l l c o m p l i a n c e to t h e m a n d a t o r y s e n t e n c i n g has i n c r e a s e d . Acknowledgements--This report was prepared in cooperation with the Governor's Task Force to Reduce Drunk Driving, the U.S. Department of Transportation, and the National Highway Traffic Safety Administration. Support of these organizations is gratefully acknowledged. We would also like to thank the court systems in the sampled counties for their valuable assistance in preparing this report. Findings, conclusions, and recommendations in this report are solely the authors', and do not necessarily reflect the view of the Governor's Task Force to Reduce Drunk Driving, or the National Highway Traffic Safety Administration. REFERENCES Federal Register, Rules and Regulations. February 7, 1983. Foley J. P., Drunk Driver Recidivist Penalities in Indiana for 1984. A report to the Governor's Task Force to Reduce Drunk Driving, 1984. Foley J. P., Doherty M. J. and Habegger J. E., Drunk Driver Recidivist Penalities in Indiana for 1985. A report to the Governor's Task Force to Reduce Drunk Driving, 1985. Ross H. L. and Amadeo-Eineker S., Compliance with Mandatory Sentencing for Repeat Drunk-Driving Offenders in New Mexico. University of New Mexico, 1985, unpublished. Ross H. L., Deterring the Drinking Driver. Lexington Books, Lexington, Massachusetts, 1984. Tobias J., Crime and Industrial Society in the 19th Century. Shocken Books, New York, 1968. 7¢ilson J., Thinking About Crime. Basic Book, New York, 1975. APPENDIX: SAMPLING P R O C E D U R E RESULTS Total Cases (N) Mean (M) Std. Dev. Assumed Population Coefficient of Variation (CV) Desired Reliability (RE) Sample Size Required (SSR) Number of Counties Required (CR) First Selection Interval (FSI) Number of Counties Greater than FSI (C1) Second Selection Interval (SSI)
5689 61.8 108 150 5 777 13 437 1 394
D E F I N I T I O N OF TERMS A ~sumed population coefficient of variation (CV) A statistical assumption* of the ratio of the population variance to its mean. Desired reliability (RE)* A statistical assumption of the acceptable range for the obtained value. In this case a value of -+5 percent ot the true proportion was deemed acceptable. S~mple size required ( SS) The number of cases needed for a valid and reliable sample. Calculated from: SS-
CV 2 RE 2 + CV2/N
Number of counties required (CR) This value is obtained by dividing the sample size required by the mean number of recidivists in the counties. SS CR=-M *Estimated values provided by NHTSA Office of Alcohol Countermeasures.
486
J.P. FOLEY and J. D. FRICKER
First selection interval ( FSI) This is simply the population total divided by the number of counties required for the sample. N FS1 = - CR
Second selection interval ( SSI) The size of the second selection interval is the total population less the population of the counties in the FSI divided by the number of counties required less the counties in the FSI. SSI=
N - # in First Interval CR - C1
County selection weight ( CSW) Each county is weighted by a factor to estimate its contribution to the overall performance of the state. This CSW is calculated by dividing the second selection interval value of 394 by the number of second offender cases in the county. For example, in County C, the county selection weight is 394 divided by 207 or 1.903. CSW -
SS1 # in County
Sample allocation ( SA ) The sample allocation or proportion of cases that would ideally be accounted for by each county is computed as follows. The number of cases times the CSW is divided by the total population. The result is then multiplied by the desired sample size. For example, county C is 207 times 1.903 divided by 5689. This is multipled by 777 to yield a SA of 54. SA = [ County Recidivist Population * C S W ] N * SSR Integer selection ratio ( ISR ) It is not feasible or desirable to take every case in every county. In larger counties some sampling must take place. To determine the sampling frequency, the number of repeat offenders in a county is divided by the sample allocation. This number is truncated to a whole integer. For a small county, the integer is one even though the division results in a fraction less than one. The number of repeat offenders in the county is divided by the ISR to obtain the expected sample. For example, in County C, the ISR is equal to 207 divided by 54 to yield 3. ISR = County Recidivist Population SA Weight o f county's contribution ( W ) The C S W is then multipled by the ISR to weight each county's contribution to the percentage of second offenders serving the mandated penalties. W = C S W * ISR