Mainstreaming a Therapeutic Jurisprudence Approach to Impaired Driving

Driving while impaired (DWI) by alcohol or other drugs is an international problem. Far too many people lose their lives, are injured or injure others while engaging in this totally preventable crime. Some countries have a stronger ethic about not drinking and driving than others but it is a widespread issue in all parts of the world.

There is a range of permissible blood alcohol content (BAC) levels ranging from zero tolerance for driving with alcohol up to .08 g/mL throughout the United States. Some countries have .03 and many have .05 as the “legal limit.” Science has taught us that everyone is impaired at .08 regardless of tolerance and most people are impaired at .05. The safest public policy position is to completely separate the ingestion of alcohol with any driving.

We do know that more people in the U.S. now drive with a drug in their system than with alcohol.

Marijuana and Driving

When it comes to impairing substances like illicit drugs, cannabis and over-the-counter and prescription medications, much less is known. We do know that these substances can affect driving but we just don’t know how much is too much.[i] In the U.S. some states have adopted a zero tolerance position on levels of THC while others have 2, 3 or 5 ng/ml as the limit. The length of time that cannabis can be detected in the body coupled with a movement towards legalization further complicates these issues. We do know that more people in the U.S. now drive with a drug in their system than with alcohol.

DWI Court Model

The key to prevention of recidivism is to identify those who are unlikely to reoffend after their first arrest/conviction for DWI (80%) from those high risk/high need offenders who, without appropriate intervention and supervision, are likely to reoffend.[ii] Starting in 1995, the drug treatment court model has successfully been applied to repeat DWI offenders. As of June 2014 in the U.S., there are 262 DWI Courts and 407 hybrid DWI Courts connected to an existing drug court but called on a separate docket.[iii]

The states of Tasmania and Victoria in Australia and the American Territory of Guam are looking at DWI courts and the four-year-old Alcohol and Other Drug Treatment Courts in New Zealand have accepted high risk/high need DWI multiple offenders from the beginning.

Judges are a vital part of the DWI Court team.

The Role of the Judge

While drug treatment courts have the 10 Key Components as their foundational document, DWI courts have the Guiding Principles of DWI Courts that were developed ten years later. The two documents are similar although the Principles address transportation needs and co-occurring disorders, issues not found in the original Key Components. Both have as a basic tenet the importance of the judicial role in these types of courts. GUIDING PRINCIPLE #6, entitled “Take a Judicial Leadership Role,” states:

Judges are a vital part of the DWI Court team. As leader of this team, the judge’s role is paramount to the success of the DWI Court program. The judge must be committed to the sobriety of program participants, possess exceptional knowledge and skill in behavioral science, own recognizable leadership skills as well as the capability to motivate team members and elicit buy-in from various stakeholders. The selection of the judge to lead the DWI Court team, therefore, is of utmost importance.

The role of the DWI Court judge anticipates not only “exceptional knowledge” but also “skill in behavioral science” and motivation of the participants as well as the team. These attributes should not be and are not limited to judges in solution-focused courts alone. There is no reason judges who have regular dockets cannot develop these skills and apply TJ principles in their calendars.

Safeguards should be in place to detect any driving that is not sanctioned.

Besides the talents of the judge, other factors that contribute to a lower recidivism rate in DWI cases are close monitoring of abstinence; record-keeping to ensure completion of an educational program or substance abuse treatment; license sanctions and reinstatements; and, a belief by the probationer that any behavior, good or bad, is likely to be discovered. Frequent status hearings in court are a hallmark of drug treatment and DWI courts but there is nothing to stop a judge on a regular calendar from setting status hearings as well. Safeguards should be in place to detect any driving that is not sanctioned (with installation of an Ignition Interlock device for instance) or positive chemical tests or continuous alcohol monitoring to which the court can craft a speedy response.

You can’t go home again

Judges who leave the specialty court assignment and return to a regular docket report that they just can’t do business the way they used to. Once they know what works, they cannot go back to the traditional but ineffective criminal justice responses. As members of Alcoholics Anonymous are fond of pointing out, “Once you’re a pickle you can never be a cucumber again.” And so it seems that is true for judges as well. Once you practice Therapeutic Jurisprudence you can’t go home again.

[i] There is one study from the UK that suggests 5 ng/ml of cannabis is equal to .08g/mL alcohol in terms of impairment for purposes of driving.

[ii] By contrast, in South Australia more than a third (34%) of drivers arrested for DWI has prior convictions.

[iii] This total of 669 DWI Courts represents about 22% of total drug courts in the U.S. (3,057) Marlowe, Douglas B., et al., “Painting the Current Picture,” National Drug Court Institute (June 2016)