ND DUI reforms show promise in first year
FARGO – A year after a tougher driving-under-the-influence law went into effect in North Dakota, officials say it is still too soon to pop open the champagne and declare it a success – but there is some call for optimism.
The law deals out harsher penalties to drunken and drugged-up drivers, including longer prison terms, bigger fines and a mandatory abstinence program, called the 24/7 program.
Attorney General Wayne Stenehjem, who had a hand in creating the law, said there are positive signs it is having an impact.
“It looks to me like we must be doing something right that we haven’t done before,” he said.
Stenehjem cited data from the state Department of Transportation showing the total number of convictions for driving under the influence in North Dakota have lowered since the law took effect July 1, 2013.
From July 2013 to this past June, there were about 6,600 DUI convictions, while in the same period from 2012 to 2013, there were about 8,200.
DUI numbers are also on the decline this year locally.
At this point in 2013, police in Fargo had arrested 477 for suspected DUI, Lt. Joel Vettel said this past week. This year, he said, DUI arrests so far are down to 340, a 29 percent drop.
In the 12 months after the law went into effect, Cass County prosecutors handled 171 first-offense DUI cases, compared to 193 during the same time period in 2012-13 and 216 in 2011-12.
But there are other factors at play in those reductions, some law enforcement officials say.
Too soon to tell
Vettel said he attributes the decrease in DUI arrests in Fargo to departmental staffing issues more so than the deterrent impact of the stiffened state laws. He said the Police Department has seven open positions for officers right now, a high point for openings in 2014.
He also said two of the force’s top officers for catching drunken drivers have moved out of patrol in 2014. That can make a big difference, he said – noting that he once logged 120 DUI arrests in just one year.
“We’ve had some extremely proactive DUI officers,” Vettel said.
Even Stenehjem cautioned that it is too early to gauge the effectiveness of the law and that the drop in convictions may be due to any number of factors.
The number of DUI convictions from July 2013 to June 2014 is lower than the same period 12 months before, but actually not that different from July 2010 to June 2011, in which there were 6,400 DUI convictions.
Sgt. Tom Iverson of the North Dakota Highway Patrol said he has not seen any dramatic change in DUI arrest numbers.
“I would say we’re on par for this year,” he said. “Unfortunately, we’re still making a large amount of DUI arrests. ... There are still far too many people out there not abiding by the law.”
The Highway Patrol made nearly 2,000 DUI arrests last year, according to its website. As of June 23, state troopers have made about 760 DUI arrests this year.
The patrol has also reported fewer fatal crashes involving alcohol so far this year. As of July 1, there have been 10 fatal crashes that involved alcohol, or 22 percent of fatal crashes. That is compared to 64 fatal crashes involving alcohol last year, or 48 percent.
But Iverson said that number was so low because the Highway Patrol is waiting on toxicology reports and blood work to be processed. He said he expects the percentage to hit near the 50 percent mark this year.
“I don’t foresee a huge drop,” he said.
Iverson does expect the tougher law to have an impact down the road.
“Over time, we will start seeing the impact out on our roadways,” he said. “It gets aggressive about our problem of drinking and driving.”
Refusal law helpful
Some clear-cut benefits have emerged in the year the new law has been on the books.
Cass County Assistant State’s Attorney Tristan Van de Streek said the criminalization of refusing blood alcohol and field sobriety testing is, by far, the most significant.
Before the DUI reforms, the only consequence for a driver who refused testing in a traffic stop was a driver’s license suspension, he said.
Without evidence like a breath test reading, or difficulty walking a straight line or counting backward, it was tough to prove a driver was drunk, the prosecutor said.
“You’d find people who were smart enough not to say anything. It makes it hard to prove they’re drunk,” he said.
Van de Streek said he once lost a jury trial to a driver who refused the tests and decided to fight the charges.
Kristi Venhuizen, a city prosecutor in Grand Forks, said the legality of the test refusal provision is still up in the air, though.
“People are challenging that, and they’re trying to claim it’s a violation of a constitutional right,” she said.
Venhuizen said a case pending before the North Dakota Supreme Court will explore that question.
A similar law in Minnesota is also set to be considered by the Supreme Court there.
The reformed DUI law is known as Brielle’s Law, named after an 18-month-old victim of a crash in July 2012 in which a drunken driver three times over the legal limit was going the wrong way on Interstate 94 west of Jamestown.
The drunken driver, Wyatt Klein of Jamestown, collided head-on with a vehicle carrying Aaron Deutscher, 34, his pregnant wife, Allison, 36, and their baby, Brielle, killing all three. Klein was also killed.
Afterward, the Deutschers’ relatives rallied for stiffer penalties for drunken drivers in the hope that what happened to their family would not happen to anyone else.
“Some say our DUI laws are strong enough and that our jails are already full. I would argue that they are not strong enough and that our cemeteries are full,” said Tom Deutscher, Aaron’s father, at a legislative committee meeting last year to discuss the proposed DUI penalties.
The law raises the stakes for repeat offenders such as Klein, who had at least four DUI convictions before the accident.
Under the previous law, a fifth DUI conviction within seven years was considered a felony. The new law made any fourth DUI conviction a felony regardless of when they happened.
The fourth-offense automatic felony has had an impact, but it’s not without complications, Van de Streek said.
In order to make a fourth-time charge stick, prosecutors must prove the person had a lawyer or was offered one before his conviction.
Some of those records do not go back beyond five years, and in many cases, the penalties for initial drunken-driving offenses were so negligible, defendants would simply plead on their own, take their slap on the wrist and go away.
“It’s a new wrinkle,” Van de Streek said. “It certainly doesn’t make the new law a bad law.”
So far, Cass County prosecutors have charged out 45 of the fourth-plus offense cases under the new law.
Any test refusal charged will also carry the weight of a prior conviction.
Among other changes, the new law created a mandatory minimum sentence of 10 days for a second DUI within seven years and a new “aggravated DUI” category for first-time offenders who register 0.16 percent blood-alcohol content, which results in at least two days in jail and a $750 fine. First-time offenders with lower blood-alcohol content would pay a $500 fine. Previously, minimum fines for first-time offenders were $250.
One of the most touted changes is the requirement to enroll in the 24/7 program upon a second DUI offense within seven years.
That’s meant an increase in the program’s usage at the Cass County Jail. In the 12 months ending June 30, 259 offenders were enrolled in the program – which requires twice-a-day breath testing at the jail. In the 12 months prior, there were 157 participants, according to Cpl. Chad Violet of the Cass County Sheriff’s Office, who administers 24/7.
Violet thinks Cass County’s program is likely to grow to be as big as a similar one in Sioux Falls, S.D., which had 450 participants last year.
The sheriff’s office added a part-time staffer to help Violet, but the increases are driving a push for more jail space at the Fargo facility.
One of the two times a day participants must report to the jail coincides with visiting hours, and visitors and DUI offenders have to line up in the lobby at the same time.
“It wasn’t designed to handle the sheer volume of people coming here two times a day for testing,” Violet said.
Cass County Deputy Paul Laney said he thinks the program is a success but having participants and visitors bumping into each other does cause disruption.
“We can’t have people standing out in line when it’s 20 degrees below zero,” Laney said.
In Grand Forks, Venhuizen said judges are scratching their heads over how to enforce the program, still unsure how to respond when a participant fails a test.
In Cass County, failing a test usually means an immediate arrest, and the bail is set typically at a cash amount, rather than the 10 percent they’re initially allowed to post, Van de Streek said.
But oftentimes, the prosecutor said, the offender will get a second chance.
“As a practical matter, many of these people have been struggling with alcohol their whole lives,” he said.