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"The United States is a nation
of laws: badly written and randomly enforced."---Frank Zappa
The gist of this report is that the law does not treat all drunk drivers equally. Like in the O.J. Simpson case, a good lawyer can get you a better verdict. It also shows that since the police, lawyers and judges do not consider the crime to be equivalent to first degree murder--like the fanatics at MADD and the NHTSA do--rules are bent and deals are cut to give the non-violent drunks a little slack. MORAL: Draconian laws are not enforced and only foster resentment and indifference.
Drunk driving is a crime with many facets, many cases, many sad stories, and many parties. There is the police officer who stops the car he sees weaving all over the road and makes the driver perform field sobriety tests. There is the emergency room physician who treats the person who crashed into a tree and finds out that his blood alcohol level is 0.17%. There are interest groups such as Mothers Against Drunk Driving, seeking stronger prosecutions and longer jail sentences. There is the solicitor in each town, responsible for prosecuting offenders. Kerry Rafanelli, an assistant solicitor for the town of Warwick, says grimly that the more you deal with drunk driving, the more you become aware of what it can do. According to the National Highway Transportation Safety Administration and MADD, “In 1997, 1.4 million people were arrested in the U.S. for driving under the influence (DUI) or driving while intoxicated (DWI).” According to Mr. Rafanelli, once you see the faces behind drunk driving, the innocent victims hit by drunk drivers on the road at night, it is difficult to be unbiased towards those who choose to drink and drive.
Drunk driving can be a very political crime, especially in high-profile cases where innocent victims are hurt in terrible accidents. “Ordinary” people are the victims in drunk driving cases. However, it is also political because “ordinary” people are also the defendants in drunk driving cases—accountants, bankers, and judges, according to Mr. Richard Humphrey, a defense attorney specializing in drunk driving cases and a solicitor for the town of Little Compton. Drunk driving is a crime that can affect anyone.
A drunk driving crime can be a simple
pickup, a single-car accident, or an accident with additional victims. The majority of arrests under the drunk driving
statutes are of the first variety, though it is it latter two, especially the last, which
receive the most media and activist attention.
In this paper, we will focus on data from the years 1995 to 1997 to analyze drunk driving in Rhode Island. We will discuss the drunk driving statutes, the availability of data for analysis, common sentencing and problems with sentencing, the appropriateness of charging, and problems with charging under the statutes statewide.
According to the Access database provided by the Rhode Island Superior Court,
there were a total of 6030 arrests under the drunk driving statutes during the three-year
period we examined. As previously stated, the
majority of these arrests (5933) were for simple pickups or single-car arrests, not crimes
involving a victim in addition to the drunk driver him/herself. (Please see attached flow charts for further
details.)
There were several issues involved with the use of this data for analysis. First, completeness of data varies by
jurisdiction. Some cities, towns, and
counties are more completely represented in terms of number of cases and filled fields
than others, meaning that in our analysis, we were often working with an incomplete data
set. For example, in some instances we were
provided with a case number but not with a defendant’s name. In some cases, we can see from our data that a
defendant has a prior arrest, but we have no indication as to what that prior arrest was. However, this is not a limitation on the strength
of our discussion and conclusions, as we will reference only the data available and not
make inferences regarding the missing cases or fields in the database we did not have
information about. A second issue was the
poor access to actual case files. Most files
are buried in the district courts, stored in basements since they are over five years old. We were not able to retrieve these files.
A bigger problem than simply not
having the time or wherewithal to access files in boxes, however, was the problem of
expungement. Closed files are eligible for
expungement hearings after five years; drunk driving cases are often the type of cases
individuals seek to have expunged from their records.
Choosing to examine data from 1995 to 1997 meant that the majority of our
cases were five years old or older, and when we attempted to pull such files, they were
usually not in the location court and Records Center personnel expected them to be. Records Center personnel indicated that such
“missing” files were most likely sitting in a line waiting for an expungement
hearing. The cases in question were
represented in our access files; we simple could not read the original documents included
in the file.
The laws of Rhode Island prohibit people with a blood alcohol level of .08% or more from operating any vehicle. Between 1995 and 1997, the minimum permissible blood alcohol level was .10%. Those citizens who proceed to drive while impaired by alcohol and are arrested are charged under statute 31-27-2, with Driving Under the Influence (DUI), a misdemeanor. A DUI first offense is recorded in the court database as either a 31270020 (20) charge or a 3127002A (2A) charge. A second arrest within five years results in a charge of 3127002B (2B) and a third offense 3127002C (2C). A second conviction qualifies a driver as a habitual offender and results in more severe penalties than a first offense.
Other misdemeanor charges related to drunk driving are: 31270021, driving under the influence of drugs; 31270027, and driving while impaired. Two felony drunk driving charges are 31270022, driving under the influence death resulting; and 31270026, driving under the influence serious injury resulting.
There are also civil charges relating
to drunk driving. Refusing to subject oneself
to a breath or other chemical test and driving with a blood alcohol level of .08 up to .10
are both civil charges at present. The
civil penalties for a blood alcohol level of .08, though, were added to the statutes in
2000 and were not in effect during the three-year period we studied.
Some jurisdictions, including the
state police, Providence, Cranston, Warwick, Newport, and North Providence, practice
double charging. This means that in the event
of a breathalyzer refusal, the defendant will be charged with both refusal (the civil
charge) and DUI (the criminal charge). It is
difficult to prove DUI based solely on observation without the chemical evidence, but this
double charging is often done to try to push defendants to plead to one of the charges. According to Mr. Rafanelli, it is policy to drop
the refusal charge if the defendant agrees to plea to the DUI charge. Mr. Humphrey noted that the double charge serves
as an added punishment since it requires the defendant to pay more lawyer fees and deal
with the hassle of going to two separate courts. Mr.
Humphrey emphasized this annoyance by mentioning a double-charged case where he had to go
to either the Traffic Tribunal or District Court 11 separate times (without any
postponements) to deal with all the various legal issues surrounding both the refusal
charge and the DUI charge.
The punishment for a DUI conviction
varies greatly depending on if the defendant is a first or repeat offender. For a first offense, according to the 1994
Reenactment of the State of Rhode Island statutes (no amendments were made between 1995
and 1997), a conviction resulted in a fine of not less than $100 nor more than $300. Additional sentencing included between 10 and 60
hours of community service, up to one year in prison, loss of his/her license for three to
six months, and a mandatory special course on DUI or drug or alcohol treatment.
For a second offense within five
years, the penalties increased. After a
prior conviction in Rhode Island or any other state, a defendant convicted a second time
of DUI received a $400 fine, a suspended license for one to two years, a mandated
substance abuse program, and between 10 days and one year in prison. The addition of mandatory jail time is an
important distinction between the first and second offenses. This prison time could be spread out over a period
of weekends, and it could include both time in the ACI and in home confinement, but any
one stay in an adult correctional facility was required to last a minimum of forty-eight
hours.
A third conviction within five years
resulted in another $400 fine, loss of license for two to three years, and a mandatory
jail sentence of six months to one year. Once
a defendant was convicted of a third violation, the judge also had the power to order the
defendant’s car to be seized and sold by the state with all money obtained to be
deposited into the general fund for the State of Rhode Island.
The statutes said that any violation
(even refusal of a chemical test) would constitute a prior to be taken into account in
determining how long of a license suspension a conviction will result in. However, a refusal of a chemical test would
not result in a charge of 2B instead of 2A for a subsequent violation. Between 1995 and 1997, a defendant’s blood
alcohol level was only taken into account in determining into what range a sentence would
fall. For example, a defendant with a blood
alcohol level of .11 would receive a shorter license suspension than a defendant with a
blood alcohol level of .23. Additionally, a
highway assessment fine of $500 was the first fee that collected and applied to all
violators of any of these charges.
In an interview, Mr. Humphrey outlined his four goals as a defense attorney when confronted with a drunk driving case. As he held up four fingers touching each as he named a goal, Mr. Humphrey explained that his top priority is to keep his defendants out of prison. His second goal is that his client does not lose his or her license. Third is to attempt to avoid a conviction, and fourth to keep the client’s court costs to a minimum.
The penalties if convicted are clearly set out in the statutes. However, according to the data, not all the
mandatory sentences are issued. For example,
the punishment of loss of license is not always enforced.
Of those defendants convicted of either 20 or 2A, about ten percent do not
lose their licenses. Some of this ten
percent is accounted for by those charged with DUI who pled down to a lesser charge, for
example reckless driving or eluding the police. However,
after all amended pleas are removed, 106 individuals remain who were convicted of a DUI
offense and receive a license suspension.
Upon hearing this, Mr. Sullivan
strongly insisted that “everyone” receives loss of license as part of
sentencing. Mr. Rafanelli registered surprise
when confronted with this data. Neither Mr.
Sullivan, Mr. Rafanelli, nor Mr. Calise could offer an explanation as to why these
individuals are not losing their licenses. “I
can never, ever, ever, ever think of a drunk driving [conviction] without a license
suspension,” said Mr. Calise.
And yet, an example is the case of
Jody M. Link of Cranston. On January 25,
1996, Ms. Link was arrested and charged with DUI by the Cranston Police Department. Ms. Link filed a plea of nolo contendere on March
13, 1996. As a punishment, Judge Cappelli
issued her $100 fine, court costs in the amount of $757.50, and mandated attendance at a
Driving While Intoxicated school. Not
only did Ms. Link not receive a license suspension, but typed on her criminal docket sheet
report is "no loss of license" for a term of "0 Years.”
Interestingly enough, as previously
stated, Mr. Humphrey named as one of his four goals prevention of a license suspension. This could mean that he tries to plea DUI charges
down to reckless driving, a common plea which does not result in a license suspension. However, as stated, there were still 106
individuals from 1995 to 1997 who pled guilty to DUI and did not lose their licenses. No one has been able to explain this.
Some of the problems with penalties
come from the high volume of DUI cases moving through the system. Many DUI convictions result in mandatory driver
retraining. However, according to a Providence Journal article in 1998, “classes
are so backlogged that it typically takes months before drivers get in. As a result, most drivers get their licenses
reinstated before they take the class. In
fact, they drive themselves to the campuses.” This
is clearly ridiculous.
A drunk driving case begins with an arrest. According
to Mr. Humphrey, “98%” of the responsibility for charging lies with the police. Mr.
Calise echoed this statement, saying that the arresting officer determines the charge to
be entered. Before being handed off, the
charge will be approved by the prosecuting officer of the police department. Following the initial arrest, a drunk driving case
could then take a variety of jurisdictional paths.
The first is to the desk of a city or town solicitor or to the desk of the attorney
general. If the arrest is made by a local
police department and the charge is a misdemeanor (20, 21, 27, 2A, 2B, 2C), the case will
be prosecuted by the town solicitor in a county courthouse.
However, if the case is charged as a felony (22, 26), the state will claim
jurisdiction and the attorney general will prosecute.
If the arrest is made by an officer of the state police, the attorney general will
prosecute even though the crime is a misdemeanor.
There is a solicitor for each of the 39 cities and towns in Rhode Island. Notwithstanding the difficulties in obtaining
statewide consistency with this high number of individual prosecuting agents, consistency
within towns from mayoral administration to mayoral administration may be difficult to
establish, as each new city or town mayor has the prerogative of appointing a new
solicitor. This prosecutorial flip-up in each
of the individual localities, combined with often-changing drunk driving laws, means that
the way cases are handled could vary widely from town to town and from year to year.
In addition, many of these solicitors do not hold this position as a full-time job. Many, according to Jay Sullivan, assistant attorney general responsible for prosecuting drunk driving felonies, act as defense attorneys four days a week and as solicitors on the fifth. Mr. Sullivan mentioned the potential conflicts of interest with such a part-time system; these concerns were also echoed by Mr. Richard Humphrey—who holds just such a position. Mr. Humphrey is a solicitor for the town of Little Compton sometimes and a defense attorney defending mainly individuals charged with drunk driving at other times. Mr. Rafanelli and Bill Calise are part-time assistant solicitors for the city of Warwick—they appear as solicitors at the Kent County Courthouse on Mondays and Wednesdays to deal with Warwick cases and tend to their private practices Tuesdays, Thursdays, and Fridays. Mr. Calise said that he views his two jobs as complementary and indeed thinks that advocating on both sides helps. He said that when an attorney both defends and prosecutes cases, he gets to know the nature of the cases twice as well, and can be more effective on either side. Working on both sides of the table would seem to improve an attorney’s skills in court, but this does not address the potential conflict of interest arising from doing both at the same time.
The cases not disposed of in the district courts or by the attorney general’s
office make their way to the Traffic Tribunal. The
Traffic Tribunal deals with civil rather than criminal penalties for traffic-related
offenses, such as speeding tickets and other traffic violations. The Tribunal also handles breathalyzer refusals
for the state—any individual who refuses to give consent to a breathalyzer test is
subject to a civil penalty in the Traffic Tribunal. A
breathalyzer refusal case is thus a special type of drunk driving case, but all such cases
in the state are handled by the traffic tribunal rather than by the individual solicitors.
It is important to note that our analysis can only contain those cases that make it
into the system. In large part, it is
important to know how many do not—there are no figures for “unsolved” drunk
driving crimes and no way to know how many individuals drive while under the influence
without ever being caught. Mr. Humprey
estimated the number of arrests out of the total number of individuals who drive while
drunk as about 1 in 2,000.
There have been studies that attempted to quantify the number of individuals
driving drunk but able to avoid arrest. Last
year, a study was done at the Trauma Service at Rhode Island Hospital looking at the blood
alcohol level of individuals admitted to the hospital after having an accident. Everyone entering the trauma center receives a
blood alcohol concentration test, but by law the results of this test cannot be reported
to law enforcement officials because of doctor-patient confidentiality rules.
The study, conducted by Brown
University medical student Joshua Schiffman, pediatric surgeon-in-chief at Hasbro Hospital
Thomas Tracy, and chief of trauma at Rhode Island Hospital William Cioffi, identified 137
individuals admitted to the trauma unit from January 1, 1997 to June 30, 1998 with a blood
alcohol concentration greater than .10. According
to a commentary piece by the researchers printed in The
Providence Journal, they then examined the records for this group of drivers, and
found that 91 of them (80.5%) received no subsequent citation or charge. Of these 91, 22 “had multiple motor-vehicle
offenses before their accidents. . .including eight people charged with driving while
intoxicated (DWI).” Of the remaining
19.5%, only 12 people were charged with DWI. Of
these 12, only 10 cases went forward, “leading to an actual conviction rate of
8.8%.”
This study, along with Mr.
Humphrey’s comments, helps to illustrate the extent of this crime. According to Schiffman, Tracy, and Cioffi,
“People will still be drinking, driving, and getting away with it.”
Achieving better enforcement rests in
the realm of the police. Making the arrests
is the necessary first step. However, as we
will show, correctly charging those who are eventually arrested is the next step to be
taken. . . and this step is not being accomplished either.
As noted earlier, there are four basic
drunk driving charges for the arresting officer to choose from for an individual arrested
under a simple pick-up. There is 31270020
(20), the basic charge of driving under the influence of liquor. As previously indicated, there is some confusion
between this charge and the second charging option, 2A, driving under the influence as a
first offense. When asked about the
difference between the two charges, Mr. Sullivan indicated that the first, 20, was the
basic drunk driving statute and that all cases fell under it. However, in the category of sentencing, the data
clearly shows that individuals are being charged under this statute as if it was equal to
2A. This discrepancy is potentially due to
differences in the coding of the charge by the various record keepers. Mr. Calise said that the charge of 20 is really
the same as 2A; if the criminal complaint just reads 2, it is assumed to be a first
offense.
In any event, both 20 and 2A represent charges for first offenders. The next charging option open to police for a
simple pickup is 2B, driving under the influence for the second offense within five years. As discussed previously, five years is an
important cut-off point because after five years drunk driving convictions can be expunged
from a person’s record. The final
charging option is 2C, driving under the influence for the third offense within five
years. At present, this charge is treated as
a felony, but was still treated as a misdemeanor and handled by the solicitors from 1995
to 1997.
The process seems fairly straightforward—charge an individual with 2A for the
first offense, 2B for the second within five years, and 2C for the third within five
years. Mr. Calise said that there are three
basic conditions that need to be met in order for a defendant to be charged with and
sentenced to 2B. First, the judge needs to be
informed of the prior offense. Second, the
Criminal Complaint needs to show in writing a charge of
DUI second offense. Third, there needs
to be a conviction in a previous DUI case, not a conviction for a plea that has been
amended down from the original charge.
In the three-year period covered by our analysis, there were 221 cases where the defendant was charged with 2B. However, according to the court data, there were an additional 146 cases where the defendant had a prior drunk driving conviction within five years and so could have been charged with 2B but was instead charged with 20 or 2A.
Take for example the record of Francis J. Martin. Mr. Martin pled nolo to a drunk driving charge on five separate occasions between 1991 and 1997. The first charge, on October 3, 1991, was a 2A. The second, on 11/29/92, was a 21. The third, on 12/24/95, was a 2A again. The fourth, on 2/16/96, was another 2A. And the fifth, on 11/6/97, was a 20.
This type of charging is clearly not in accordance with the terms of the statute. If 2A represents a charge for a first drunk
driving offense, it seems logical that a defendant should be eligible to be charged under
this code only on the first offense. However,
the data shows otherwise.
According to Mr. Sullivan, there are several reasons to explain this problem of
undercharging. First, he said that there are
many different databases containing prior records being used among the many different
jurisdictions. The individual police
departments have records, the district courts have records, the Traffic Tribunal has
records, Connecticut and Massachusetts and other states have records, and the DMV has
records. All of these institutions have
records on cases they have seen—but they are not necessarily able to share these
records. In other words, if an individual has
a conviction in one district and is next arrested for drunk driving in another district,
it is possible that the charging police would not be able to be aware of any prior record.
This explanation does not excuse the problem, but it does make sense. The lack of a unified real-time computer database
between all the different jurisdictions in question means that sharing files between them
depends on requests and paper transfers instead of simply being able to search a database
when needed. Such procedures are time and
energy consuming. According to both Cpl.
Thomas Underhill of the Rhode Island State Police and Officer Andrew Tainsh of the city of
Warwick, the arresting police officer has the responsibility for finding this information
and determining if an individual has a prior conviction.
In addition, statewide data does exist. The
Bureau of Criminal Identification (BCI) is a statewide database of criminal convictions,
and the Department of Motor Vehicles is state-wide and holds records of license
suspensions. Officer Tainsh, who routinely
makes drunk driving stops, said that it is his department’s policy (and he follows
it) to check at least the BCI database to look into an individual’s prior record. Patrol officers check into this record from their
cars when they make a stop—from their vehicle they access the motor vehicle registry
to determine if the stopped driver has ever had his or her license suspended.
This statewide database, then, is theoretically available. However, the database can only be as good as the
data entered into it. According to Mr.
Calise, success in determining if a defendant has a prior conviction “depends on data
getting in.” He said that officers
checking into a defendant’s priors have to depend on the state of the records as they
run through them, and that these records can be incomplete.
He noted that Providence is notorious for not entering dispositions into the BCI. Officer Tainsh said that on occasion, the BCI will
contain only mention of an arrest, and not a disposition—in which case he would call
up the district or precinct where they case was held and find out from there what the
disposition was. Proof of the original
conviction is an element for proving 2B, so finding the actual disposition and not just
the record of arrest is important.
It seems, then, that with this
statewide database available and contact with other districts possible in the case of
incomplete records, the many different local databases should not be the source of
mis-charging. The problem goes even further
than this, however. Further analysis of the
data showed that 88 of the 146 cases where 2B could have been charged but was not occurred
in the same district as the prior conviction. In
other words, defendants are being charged with 20 or 2A two or more times by the same
district. The question should not one of
access to records when the prior is in-district. In
addition, 46 of the undercharged cases occurred in the same police department as the first
offense.
Blaming another district, then, for
not entering in the disposition is simply not good enough when taking an example such as
the cases of Albert Boscia. Mr. Boscia was
arrested four times. In 1993 and 1996 he was
arrested by the Cranston police, and in 1993 and 1995 he was arrested by the Johnston
police. Each of these four times he was
charged with 2A. These police departments or,
later, the solicitors in the respective districts, should have been able to see in their
own files that they themselves had charged Mr. Boscia previously under the DUI first
offense statute and should have accordingly charged 2B.
They did not.
Mr. Sullivan’s first explanation, then, for why this mis-charging occurs is
incomplete at best. He also offered by way of
explanation questions of time. He presented a
scenario in which a defendant is picked up by the police at night, when most drunk driving
arrests occur. In the middle of the night
police officers cannot access any court computer systems, which are only accessible during
business hours when the courthouse is open, so they charge the defendant with 20 or 2A
since they cannot know if the individual has a prior.
If the defendant knows that he/she has a prior, Mr. Sullivan argued, he is likely
to plead out at the arraignment at 9:15 the next morning before anyone in the police
department or the solicitor’s office has a chance to find out about the prior
conviction and increase the charge, and thus, the penalty.
However, this explanation proves to be, again, at best incomplete and at worst
faulty. The median lifespan of a normal case
charged as a 2A is 28.5 days. This lifespan
is from the offense date to sentencing. The
median lifespan of one of the 142 cases of 2A where there was a prior conviction is 34.5
days. Clearly, not all defendants are
pleading out the next morning if most cases are dragging on for over a month.
There are some problems with this
analysis. The data does not provide the
actual date of disposition, so there could be a great lag between disposition and
sentencing. In addition, these numbers only
represent the median lifespan; some cases may take far less time. The analysis is thus inconclusive in terms of
providing the answer as to the role of time in the progression of a drunk driving case.
These lifespan numbers do not
necessarily disprove Mr. Sullivan’s explanation; however, they do render the scenario
he described as an occasional occurrence at best and a rarity at worst. His explanation cannot suffice for all the 142
cases in question.
Just as Mr. Calise said that the
problem lies in Providence, Mr. Sullivan indicated that much of the blame for this problem
rests on the shoulders of Newport County. He
noted that the 2nd District, which includes Newport, is the least
computer-ready of all the districts. They
still rely on paper files for most of their record keeping, making uncovering the prior
record of every drunk driver a dismal prospect.
The state police accuracy rate was close to the overall state rate, with defendants being charged accurately 58% of the time. The state police had 14% of the total cases, and 17% of the total number of cases undercharged. Providence County, noted to be so inaccurate by Mr. Calise, had an accuracy rate of 53% with 39% of overall cases but with 43% of those undercharged. Bristol’s accuracy rate was 44%, but it represents only 7% of total undercharged cases. In spite of Mr. Sullivan’s comments, Newport’s accuracy rate was 68%. (Please see charts 1 and 2).
To respond to the explanations offered by Mr. Sullivan, Mr. Calise, and Mr. Rafanelli regarding access to records and quality of records from other districts, it is also important to look at the number of cases undercharged where the prior conviction was within the same district as the undercharged case, as in the previously mentioned case of Albert Boscia, picked up four times in Providence County and always charged with 2A. This information speaks to the quality of police work at recording and checking data at the minimum level—within their own jurisdiction.
Statewide, 60% of all undercharged cases occurred in the same district as the prior conviction. The state police, which at first glance seemed to have a pretty poor record of undercharging, prove to be much better at checking into their own records, with only 12% of their undercharged cases having the prior conviction coming from a previous state police arrest. Providence County again is problematic, having the worst record with 79% of their undercharged cases having the prior in Providence. Kent County again has a good record here, with 33% of their undercharged cases coming from their own district. Newport has a poor record here, with 63% of their undercharged cases coming from within Newport. (Please see chart 3).
Surprisingly, given the state police’s accuracy of checking their own records, the other districts do not have such a high rate of accuracy in dealing with priors coming from the state police. For example, 6 of the 28 undercharged cases in Washington County had a prior conviction in the state police (21% of their undercharged cases). In addition, Kent County, which has a 94% accuracy rate overall and where only 1 of 3 undercharged cases had a prior in Kent, is the location of many of the priors for undercharged cases in other districts. Four (14%) of all undercharged cases in the state police have the prior conviction in Kent County, four of the undercharged cases in Providence County had their priors in Kent, two of the undercharged cases in Washington County had their priors in Kent. (Please see chart 3). Based on Kent County’s very high internal accuracy rate, we can assume that Kent County keeps good records. We have no way of knowing with what accuracy or regularity Kent County inputs its cases into the state database, but again based on their high accuracy rate, personnel at Kent County could have, if asked, informed other counties as to the records of convicted defendants within Kent. According to Officer Tainsh, police officers in Kent call other districts to check to see if defendants have prior conviction when such records are not readily available in any sort of statewide database. The high numbers of undercharged cases in other districts with their priors in Kent could be partly explained if those other districts are not as vigilant at checking in with Kent as Kent is at checking in with them.
Going beyond finding undercharged cases with priors within the same district, it is possible to look at undercharged cases by city where the prior conviction is in that city. These statistics are relevant since city the charging police department has best access to its own files with the police department, next best access to files within the district, and least of all access to files within the state. In addition, prosecution for these cases falls to the solicitor in each city, who presumably has access to the relevant files within the city. Looking at this city breakdown, it is evident that, overall, about half of the cases in each city where the prior is in-district also have the prior lying in-city. For example, of the 9 undercharged cases in Woonsocket, 100% had a prior conviction in Providence County, and 54% of these 9 had a prior conviction from Woonsocket itself. On the other hand, of the 7 undercharged cases in Richmond, 66% had a prior within both Washington County and in Richmond—all in-district undercharged cases in Richmond had priors in Richmond itself. In contrast to Richmond, the town of Exeter had three undercharged cases where the prior was in Washington County, but none of these priors could be found within the town of Exeter itself, showing that even from police department to police department within the same district accuracy can vary. Since checking internal police department files after an arrest seems to be standard procedure in any drunk driving stop, undercharging where the prior conviction lies within one’s own police department should be inexcusable.
Geography is also an important factor. Bristol only has undercharged cases with their priors in Bristol itself, Providence, and Newport—the two counties directly abutting Bristol. The fact that Bristol no undercharged cases with their priors in Washington County doesn’t really speak to the quality of Washington County’s records or accessibility, it merely shows that drivers from Washington County are rarely found in Bristol. The state police have statewide jurisdiction, so they naturally hold the prior convictions for a percentage of undercharged cases in most other districts.
It is important to note that sometimes
undercharging initially in a case is correctly resolved.
There are 40 cases in the data from 1995 to 1997 where the defendant seems
to have plead to a higher charge than to what he/she was initially charged. These cases represent instances where the
defendants’ prior convictions were discovered and compensated for in sentencing.
For example, according to court data,
Michael Lauzon was arrested and charged with 2A on June 7, 1995 in Middletown (which is in
the 2nd District). He was
arraigned on the same day. On the criminal
complaint filed, under Count 1, the document reads that the defendant “. . .did then and there operate a motor vehicle in the
State of Rhode Island while under the influence of intoxicating liquor and or drugs; in
violation of Title 31, Chapter 27, Section 2, of the General Laws of Rhode Island as
amended.” It is clear on the document
(see Figure 1) that this sentence originally ended with a period. However, it is equally clear that at some later
point in time, that period was amended with a typewriter to become a semicolon, and the
phrase “after being convicted of DWI on 01-22-91” was added. Someone, after the initial charging, found that
Mr. Lauzon had a prior drunk driving conviction. He
then pled, according to the data, to 2B. Another
document from his file issued at judgment shows that the court recognized his prior
conviction and took it into account when determining his sentence. He received a sentence of one year, with six
months suspended, five months 10 days home confinement, and 20 days to serve at the ACI. His license was suspended for one year.
This catching of mistakes is made
clear in a recent example provided by Cpl. Underhill of the state police. According to Cpl. Underhill, the state police
(Lincoln Barracks) arrested John Doe* on March 15, 2001 and
charged him with both 20 and a breathalyzer refusal.
Mr. Doe pled to the charge of 20 in return for a dismissal of the civil
charge. However, Mr. Doe had a prior DUI
conviction. He attempted to plea out on April
27, 2001, when, according to Cpl. Underhill, the prosecuting attorney failed to recognize
and thus failed to inform the judge of this prior conviction. Mr. Doe’s plea, then, entered the system as a
nolo plea to DUI first offense. Cpl.
Underhill, representing the state police as the prosecuting law enforcement agency, has
the responsibility of reviewing and then accepting such plea agreements. According to Cpl. Underhill, upon reviewing this
particular agreement, he found the undercharging and chose not to accept the plea. He notified the prosecutor of Mr. Doe’s prior
conviction, and as is evidence on the attached Criminal Complaint sheet (see Figure 2), on
May 4, 2001, the prosecution motioned to amend the sentence under the plea to a loss of
license for one year with six months of unsupervised probation. Mr. Doe still did not receive jail time, which,
under the statute, is mandatory for a second offense, and his record still shows the
official charge as 20. Had Mr. Doe been
appropriately charged the first time, one can assume he would have received the mandatory
jail time under the statute.
There remains obvious room for improvement in Rhode Island’s prosecution of drunk driving offenses. The underlying problem with undercharging is the investigation into defendant’s prior records by arresting police departments. There is a lack of communication between departments to accurately assess a violators driving history.
Four improvements to the system are required to improve prosecution of this crime. First, a better data framework must be
established. The BCI exists, but should be
expanded. In addition, such a database can
only be as good as the quality of the data which is added to it, so the second improvement
necessary is more efficient input of data into such a system. These records exist, and they should be made
available on a statewide basis. Third, access
to such data must be improved. Police
departments and solicitors should be able to look for a defendant’s record at any
time and from any county through a computer database without needing to call around the
state. And fourth, communication lines need
to be improved within jurisdictions to ensure that the first three data solutions are
effective. Without these improvements, drunk
drivers in Rhode Island will continue to be wrongfully charged and continue to be
sentenced to lighter punishments than they deserve for their crimes.
According to an Illinois-based Insurance Research Council study undertaken in 1991
as noted in the 1998 Providence Journal piece,
only 39 percent of motor vehicle accidents appear on driving records and only 20 percent
of motor vehicle law convictions are recorded in Rhode Island. This is comparable to the average of all states. It can be inferred that other states suffer from
problems similar to those found in Rhode Island. Therefore,
the proposed solutions for Rhode Island are also applicable to the other states.
The discrepancy in accuracy between districts shows that some districts within the
state are dealing with problems of data quality and data access better than others. For example, Kent County has a very high accuracy
rate and the city of Warwick within Kent County is also very accurate. Assistant solicitors Calise and Rafanelli
attributed this high quality to the quality of their police department and to the priority
the department places on the position of prosecuting officer, the officer responsible for
approving all charging. The Warwick police
department fills this position with a captain, while Mr. Calise indicated that many other
police departments have lower-ranking officers performing this job. Data problems are minimized if communication
between departments and thoroughness of checking all available sources are maximized; Kent
County and the city of Warwick are effectively accomplishing this. But other counties, such as Providence and
Washington, have a long way to go.
Going back to the cases of Francis J. Martin provides an example of the
system’s problem with undercharging and the system’s current means of fixing
that problem. Mr. Martin pled down to
reckless driving on his first offense, so this is not counted as a prior conviction. His second offense was as 21 (driving under the
influence of drugs), which counts as a prior conviction.
His third offense was then rightly charged as a 2B, but his next offense was
charged as a 2B as well. This charge should
have been a 2C punishable by a mandatory six months to a year in jail, but instead Mr.
Martin received a sentence of 10 days in the ACI. His
fifth offense was also charged as a 2B, but this time Mr. Martin was received six months
of home confinement and six months suspended, a sentence more in line with the 2C statute. His fourth offense was undercharged—and his
punishment was less severe than the statute said he deserved.
The recommendations we propose may be very difficult to implement. Establishing the type of data systems we suggest
may be costly. However, at the very least,
improvements can be made to ensure that the appropriate penalties are meted out and that
all defendants convicted of DUI lose their license. No
social message is being sent if convicted drunk drivers are immediately allowed to go back
out on the road.
Interest groups such as MADD continually push for stricter drunk driving statutes and the blood alcohol level required for a driver to be considered impaired continually goes down. Penalties become more severe, as evidenced by the change in Rhode Island laws in 2000 to extend the jail sentence for a third conviction within five years from a maximum of one year to a maximum of three years. Also in 2000, the legislation passed a bill making driving with a blood alcohol level of .08 a civil offense. Such steps are important symbolically, and help to make drunk driving be perceived more seriously. However, such measures are ineffective to decrease the number of drunk driving offenses if the prosecution of such offenses is inaccurate. Undercharging results in punishment that is less severe than what the law decrees. The four solutions outlined above would help to solve this problem, and are necessary to help decrease the number of drunk drivers roaming Rhode Island