Challenges to Hardcore Drunk Driver Detection and Identification

Three problems often cited as undermining law enforcement efforts to curb hardcore drunk driving are test refusals, excessive paperwork and insufficient look-back periods (Simpson and Robertson 2001; NTSB 2000).

Test Refusals

Test refusals are a major problem for police officers who confront hardcore drunk drivers. Many DWI suspects refuse to cooperate with the police in any way by refusing to answer questions, take the field sobriety test, or take a breath test. But test refusals are most common with hardcore repeat offenders, primarily because they know they’ll test high, they are familiar with the loopholes in DWI laws, and in most jurisdictions, sanctions for refusing to cooperate with police are much less severe than sanctions for a DWI conviction, especially repeat offender sanctions.

When drivers refuse, the police officer can’t gather the evidence needed to support a DWI charge. As a result, in most states, drivers who are drunk and refuse testing avoid a criminal conviction and may not be identified as repeat offenders the next time they are stopped. Test refusal is one way hardcore drunk drivers continue to evade prosecution and sentencing. In a 2002 study on DWI prosecutions, three-fourths of the prosecutors interviewed said the blood alcohol test was the single most critical piece of evidence needed for a conviction, evidence they are frequently without (Simpson and Robertson 2001).

Refusal rates vary greatly from state to state. Some states report refusal rates of up to 50 percent for drivers with a prior DWI (Jones and Lacey 2000). In Simpson and Robertson’s 2001 research report on DWI enforcement, law enforcement officers reported they experience test refusals in one-third of the cases they process, with refusal percentages running even higher among hardcore drunk drivers.

“Officers say they encounter some form of refusal in one-third of the DWI cases they process. And, 95 percent of the officers say that refusals are much more common among repeat offenders. Refusal rates vary widely across jurisdictions, from as low as 5 percent to as high as 50 percent, largely as a result of differences in the sanctions imposed on those who refuse” (Simpson and Robertson 2001).

In Minnesota, where the test refusal rate is 14 percent (Hedlund and McCartt 2002), the state laws related to test refusals are among the strongest in the nation. Minnesota is one of five states (Alaska, Minnesota, Nebraska, Rhode Island, and Vermont) where BAC test refusal carries a criminal penalty. The Minnesota law considers BAC test refusal to be a drunk driving offense resulting in administrative and criminal penalties. Administrative sanctions for BAC test refusal include license revocation for 90 days on a first offense and one year on subsequent offenses with mandatory minimums. Limited driving privileges can be obtained after the mandatory license revocation concludes. Criminal sanctions are equal to the sanctions for drunk driving convictions.

In Nebraska, criminal penalties for BAC test refusal include jail, fines, probation, community service and license revocation. Administrative license sanctions for BAC test refusal include mandatory license revocation for one year. Offenders are not eligible for employment/hardship driving privileges, and the sanctions are greater than the administrative license sanctions for drunk driving convictions.

Click to see full size map: State Penalties for BAC Test Refusal

Strengthen Penalties for Refusals. The National Committee on Uniform Traffic Laws and Ordinances (NCUTLO) recommends in its DUI model law that the penalty for test refusal should be double the penalty for test failure. It also recommends that a driver’s refusal to take a BAC test be admissible in court. According to the National Hardcore Drunk Driver Project’s survey of states, refusal to take a chemical test is not admissible in court in Hawaii, Massachusetts and Oregon. Rhode Island has no statutory or case law on the admissibility of BAC refusal.

Forty-one states and the District of Columbia have administrative license revocation laws for DWI test refusal or failure. In most states, the penalties involve an administrative license suspension of 90 to 180 days. This is much less severe than the criminal penalties for failing a chemical test. Furthermore, the administrative sanctions are often discretionary and lack sufficient consequences to be a deterrent (NHTSA 2000).