What would Willie Sutton do to reduce drunk driving?
Richard Roth, PhD January 28, 2012
When asked “Why do you rob banks?”, Willie Sutton replied, “Because that’s where the money is.”
STEP 1 Where’s the Money?
So Willie would ask, “Where are most of the DWI’s?” The answer to that question is shown in the
following figure. Willie would look at that figure and recommend first that we do things to reduce first
convictions because most DWI convictions, 81,706, are first convictions. Secondly he would try to
eliminate the large number of arrested offenders, 62,447, who are not convicted. And thirdly he would
recommend laws that reduce subsequent offenses, 26,277+11,909+5,339+….
STEP 2 Criteria for “DWI BANK ROBBING” Plans
Then, since Willie was quite rational, he would ask how is the best way to rob each of those banks of
DWI offenders. His criteria for his actions would be 1) effective at achieving the goal, 2) cost-effective by
comparisons to alternatives, and 3) least likely to arouse criticism from the banks and the general public.
STEP 3 Identify What Works
Willie would certainly like to avoid efforts that have been unsuccessful or too costly in the past. So he
would consult people like me who have been successful DWI Bank robbers to identify methods that
have worked to rob the DWI Banks identified in step 1 and satisfy the criteria of step 2.
……………………………………………………………………………………………………………………………………………………………..
Outline of the Willie Sutton Strategy to Reduce DWI
1.
2.
3.
4.
5.
6.
7.
Where is the money? (Banks of DWI offenders)
Develop criteria for plans. (Effective, Cost-Effective, and Fair)
Learn from other successful DWI Bank robbers. (What works?)
Decide on a plan. (Apply criteria to proposals and draft legislation)
Assemble a team (Stakeholders, Co-sponsors, Legislature, Governor)
Rob the banks. (Publicize and implement your plan)
Count your money. (Research the effectiveness, cost-effectiveness, and fairness of your plan.)
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STEP 3 Identify What Works (continued)
1. To reduce the number of First Offenders requires changing public attitudes and providing
disincentives.
A. To change public attitudes toward drunk driving and alcohol abuse that leads to it
there must be anti-DWI and alcohol information programs in the schools and in the
media. The fact that information, even false information, is effective at changing
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behavior is evidenced by the billions that the alcohol industry spends on glorifying
the “wonderful” effects of drinking. That misleading, but effective, information
must be counteracted. In New Mexico all of the money collected for Ignition
Interlock licenses goes into a fund for alcohol and drug abuse information programs
in the schools. Also the Traffic Safety Bureau sponsors other anti-DWI publicity.
B. To provide disincentives, the sanctions for DWI arrests and convictions should be
ones that have a general deterrent effect in addition to an effective, cost-effective,
and fair specific deterrent effect. The specific deterrent effect is the behaviormodifying effect on the person arrested or convicted. The general deterrent effect is
the extent to which knowledge of specific deterrents influence those who have not
driven drunk to drive only when they are sober. So effective general deterrents
require specific deterrents that one would definitely want to avoid and knowledge
that those specific deterrents are swift and certain consequences of impaired
driving. The sanctions for first offenses have more of a general deterrent effect
than the sanctions on multiple offenders for two reasons. The first reason is that
the general public are more likely to know a first offender who has spent a night in
jail and had an interlock on his/her vehicle for a year than know a multiple offender
because there are so many more of them. Secondly the general public is more likely
to consider the possibility of being caught for impaired driving once than to imagine
themselves as a multiple DWI offender. So the long prison sentences for felony DWI
offenders do not have as much of a general deterrent effect as the swift and certain
sanctions on first offenders.
2. To convict a greater fraction of those arrested requires closing the loopholes that allow 30%
of those who are arrested to avoid conviction and sometimes even to avoid adjudication.
One loophole is that some offenders withhold information relevant to prosecution and
another is that some offenders abscond.
A. Refusing to supply a breath sample is something that some offenders do and some
lawyers urge them to do. It is not a constitutional right to withhold this sort of
information either in the US or in New Mexico. New Mexico statutes specifically
allow for a judge to issue a warrant for a blood draw in crimes involving alcohol or
drugs. The blood draw for misdemeanor DWI arrests is excluded by a single phrase
in the License Revocation part of the NM statutes. This could be corrected by a bill,
SB03871, that was introduced in NM in 2011. Talking points for this bill are attached.
B. The other loophole is that some offenders abscond. This could be dramatically
reduced by SB03082 introduced in 2011 that would require interlock or vehicle
immobilization between arrest and adjudication.
3. To reduce DWI recidivism, requires effective, cost-effective, and fair sanctions that are swift
and certain. That means closing loopholes that allow offenders to avoid sanctions and
adjusting sanctions in view of the three criteria: effectiveness, cost-effectiveness, and
fairness.
A. One loophole that allows many convicted offenders to avoid installing an ignition
interlock is claiming that they do not have a car or are not driving. This loophole can be
closed by implementing an alternative sanction, such as a home photo breathalyzer, for
those who make such a claim. Such an alternative sanction was proposed in SB0306 in
20113.
1
http://www.nmlegis.gov/Sessions/11%20Regular/bills/senate/SB0387.pdf
http://www.nmlegis.gov/Sessions/11%20Regular/bills/senate/SB0308.pdf
3
http://www.nmlegis.gov/Sessions/11%20Regular/bills/senate/SB0306.pdf
2
B. A second loophole is that up to 80% of revoked offenders continue to drive while
revoked. These offenders, who should not be driving at all, have re-arrest rates that
are 3-6 times as great as those of interlocked offenders. They have spurned the
opportunity to drive legally anytime, anywhere when they are sober with an ignition
interlock. For these offenders, SB03074 or HB0160JCS5, would have made the
offender’s vehicle subject to forfeiture.
C. A third loophole is that between arrest and adjudication DWI offenders are a danger to Page | 3
the public and a flight risk. Each year over 2000 offenders have a subsequent DWI
arrest before being adjudicated for the previous one, and about 1900 offenders are not
adjudicated. SB03086 (2011) would have closed this loophole by requiring that
the vehicle driven by a DWI offender be immobilized or interlocked between
arrest and adjudication.
4. Willie Sutton would not waste his time robbing street vendors…because it would not be
cost-effective. Similarly long jail sentences are not a cost-effective specific deterrent
sanction for felony DWI offenders. Moreover long jail sentences do not have much of a
general deterrent effect because few of those who have never been arrested for DWI can
imagine themselves as felony DWI offenders. Prison costs over $50,000 per year and for
many non-violent drug and alcohol offenders there are much less costly sanctions that
would be more effective at changing behavior and still protect the public. DWI/Drug Courts
are one option and devices that monitor location and BAC are another option to save money
and rehabilitate felony offenders. For example a felony DWI offender could be offered the
option of interlock and continuous alcohol monitoring as long as he attends AA and stays
sober. Periodic random drug tests could detect any illegal drug use. This would cost less
than a third of the cost of prison, even if the state had to assume the total cost.
STEP 4 Pick the Banks to Rob
In this step Willie would pick some of the above ideas and perhaps ones suggested by others
using the criteria of 1. Effectiveness, 2. Cost-effectiveness, and 3. Fairness. That’s where he
would confer with proponents and opponents of each idea. My talking points for each of the
above strategies are attached. Once Willie has picked the banks, the next step would be to
gather the support personnel.
STEP 5 Assemble the team needed to get the job done
This is where Willie would get the support of those who could make it happen. That is he would
explain the plans to the Governor, Senators, and Representatives. He would make sure that
other interested groups would not stand in the way, ie. The Motor Vehicle Department, the
Traffic Safety Bureau, the Administrative Office of the Courts, the Criminal Lawyers’ Association,
the ACLU, etc.
STEP 6 Implement the Sanction (ie Rob the bank to reduce DWI)
This is where Willie would keep his eyes on the implementation of the plan. He would make sure
that everyone on his team understood the plan and worked to implement it. That is, Police,
Judges, Prosecuting Attorneys, and Probation and Parole personnel. To get the general
deterrent effect, he would use publicity to discourage the general public from putting money in
that DWI bank, i.e. driving drunk.
STEP 7 Research (Count your money)
The last step is to evaluate whether the DWI bank robbery has reduced DWI. This requires
research and will point to further improvements.
4
http://www.nmlegis.gov/Sessions/11%20Regular/bills/senate/SB0307.pdf
http://www.nmlegis.gov/Sessions/12%20Regular/bills/house/HB0160JCS.pdf
6
http://www.nmlegis.gov/Sessions/11%20Regular/bills/senate/SB0308.pdf
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SB 387 Talking Points
Allowing a Blood Draw for DWI Arrestees Who Refuse to Blow
Full Text: http://www.nmlegis.gov/Sessions/11%20Regular/bills/senate/SB0387.pdf
What this Bill Eliminates
This bill would eliminate the clause in 66-8-111 that restricts the
blood sample option to felony DWI offenders.
Reason for Bill
1. 3393 persons who were arrested for DWI in 2010 refused
to give a breath alcohol sample. That’s 21% of the 16,563
persons who were arrested.
2. An additional 1800 persons had a breath-alcohol
measurement of 0.0%. That’s another 11% whose
impairment may have been due to drugs other than alcohol.
3. Our NM Supreme Court has authorized all NM courts to
issue warrants for blood samples for arrests involving
alcohol or drugs.
4. When police officers in Arizona started getting warrants for
blood draws for those offenders who refused a BrAC test,
the fraction of refusals dropped to 5% and blood was drawn
from almost all of those.
5. This would allow prosecutors to have the evidence needed
for prosecution in all cases, especially ones involving
impairment due to drugs.
Effect of this Bill
1. This bill would no longer allow offenders to withhold
evidence of alleged impaired driving.
2. It would eliminate much of the uncertainty in DWI court
and administrative license revocation proceedings.
3. Finally it would save court costs.
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SB 308 Talking Points
Interlock or Immobilization between DWI Arrest and Adjudication
Full Text: http://www.nmlegis.gov/Sessions/11%20Regular/bills/senate/SB0308.pdf
What this Bill Requires
This bill would require an Ignition Interlock or Vehicle
Immobilization between a DWI Arrest and its Adjudication.
Reason for Bill
1. Between arrest and adjudication the offender is a flight risk
and a danger to the public.
2. Flight Risk Evidence: Between 2003 and 2007, 97,692
persons were arrested for DWI in New Mexico and 11,309
of them have not been adjudicated according to the Citation
Tracking System.
3. Danger to Public Evidence: 6199 offenders were
rearrested before they were adjudicated for a prior DWI
arrest in the same 5 year period.
4. Offenders who are a flight risk and/or a danger to the
public could be kept in jail, but that would cost taxpayers
~$70 per day and the offender could not support his family.
5. With an interlock, an offender could legally drive and
support his family.
Effect of this Bill
1. This bill would let the offender drive anywhere, anytime
with an interlock when he is sober.
2. At the same time, it would protect the public, and almost
guarantee that the offender would appear in court.
3. An extra benefit is that this bill would eliminate the period
during which revoked DWI offenders learn that they can
drive with little probability of being apprehended.
4. DWI offenders would no longer have an available noninterlocked vehicle to flee or endanger the public.
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SB 306 Talking Points
Home Breathalyzer for DWI Offenders Who Do Not Install an Interlock
Full Text: http://www.nmlegis.gov/Sessions/11%20Regular/bills/senate/SB0306.pdf
Purpose of This Bill
To reduce the DWI re-arrests of convicted drunk drivers who do not install interlocks;
To provide an alternative sanction for those who claim “no car” or “not driving”; and
To provide an incentive for more convicted offenders who are still driving to install interlocks
which reduce DWI re-arrests by a factor of four.
What this Bill Requires
1. This bill would require those convicted DWI offenders who claim “no car” or “not
driving” to supply evidence of sobriety twice a day as a condition of probation.
2. Convicted offenders would bear the ~$2.30 per day cost of a home breathalyzer.
Reason for the Bill
1. 50% of convicted DWI offenders are not installing interlocks even though our law
requires it.
2. Those who do not install interlocks are 4 times more likely to be re-arrested for DWI than
those who do install interlocks. (See data on the other side of this page)
3. Judges need a fair and effective alternative for those who claim “no car” or “not driving”.
4. Judges routinely require no drinking as a condition of probation. (approved by Supreme
Ct)
5. There is now a home breathalyzer that identifies the person blowing and records BAC’s
that judges could use as an alternative.
6. Research in Santa Fe County7 has shown that an alternative sanction resulted in
substantially more interlocks installed and further reduced drunk driving.
7. The home breathalyzer would be serviced by interlock providers at the same cost as an
interlock.
8. Interlock providers would make violation reports to judges just as they do now for
interlocks.
9. Judges could monitor the drinking of convicted DWI offenders during probation without
additional probation costs.
10. The Ignition Interlock Indigent Fund would be available to indigent offenders sentenced
to a home breathalyzer.
Effect of the Bill
1.
2.
3.
4.
5.
More convicted offenders would choose interlocks.
The drinking of convicted offenders would be monitored.
Lives would be saved and injuries prevented.
Drunk driving would be further reduced in New Mexico.
Moderate drinking would not be prevented. Eg. Waiting 2 hours to blow after two drinks
with lunch or dinner.
The Proposed Change in 66-8-102
66-8-102 P. If an offender states under oath that the offender does not own a motor vehicle or
have access to a motor vehicle and is therefore unable to have an ignition interlock device
installed pursuant to Subsection N of this section, the court shall order the offender to obtain a
home breathalyzer device that identifies the person giving the sample and to provide morning
and evening breath samples for the period of time provided in Subsections N and O of this
section. The offender shall pay all costs associated with the home breathalyzer device, unless
determined to be indigent by the bureau.
7
Richard Roth, Santa Fe Pilot Interlock Program, NMDOT C04861, August 16, 2007.
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SB 307 Talking Points
Vehicle Forfeiture for driving while revoked for DWI
Full Text: http://www.nmlegis.gov/Sessions/11%20Regular/bills/senate/SB0307.pdf
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What this Bill Requires
3. If a person, who is revoked for DWI, drives a vehicle
without an interlock, the vehicle would be subject to
forfeiture.
4. If the offender is not the owner, the vehicle would not be
subject to forfeiture unless the owner allowed the offender
to drive it again while the offender is still revoked.
Reason for the Bill
1. In NM any revoked offender can drive legally anywhere
anytime in an interlocked vehicle with an interlock license.
2. Most revoked offenders are continuing to drive and
continuing to drive after drinking….without an interlock.
3. They are a danger to the public and their vehicles are a
nuisance.
4. Revoked offenders without interlocks are 3-6 times more
likely to be rearrested for DWI than interlocked offenders.
5. 67% of revoked offenders are waiting out the revocation
period without installing an interlock.
6. Bill is modeled after successful vehicle forfeiture
ordinances in Albuquerque and Santa Fe.
Effect of the Bill
1. The vehicles of those who drive while revoked without an
interlock would be subject to forfeiture.
2. Innocent owners would get a second chance.