As of July 1, 2012, every DUI conviction will result in the offender being ordered to have an ignition interlock device put on his/her car for at least 6 months. This is a change, because it used to be that the ignition interlock was only required for a second offense, or when the offender had a blood alcohol content (BAC) of .15 or higher. While the purpose of the law is a good one — to make it more difficult for someone to reoffend — it is likely to be simply far more inconvenience and cost to the offender and very little real benefit to the public. (Though if you own stock in the companies that make ignition interlock devices, you should be applauding.)
First, I want to comment on one mistake that some of the proponents of the change make. They argue that this ignition interlock device requirement will decrease the number of second offense DUI’s, and the number of people killed by already-convicted DUI defendants. The number that really matters in trying to figure out whether this change makes sense is this — how many people were killed by someone
- driving under the influence
- with a prior DUI
- when that prior DUI was with a BAC of less than .15
- when the death occurred less than a year after the prior DUI conviction.
Those are the only people whose deaths might have been prevented by this new law. I am not aware of statistics that break things down finely enough to answer the question, but some sources provide some help. At the DMV website, we learn that in 2011, there were 245 alcohol-related fatalities. (Just a note — DMV stats and National Highway Traffic Safety Administration stats aren’t exactly the same, because their definitions of terms are a little different. You can go to the sites and stare at the numbers if it matters to get everything internally consistent, or you can recognize that each set of numbers illustrates a different piece of what is clearly the same puzzle, and not get overly worried about the statistical purity of what we’re doing.)
At alcoholalert.com, we learn that in 2009 there were 10,839 traffic deaths caused by drivers with a BAC of .08 or higher. 56% of them were caused by a driver with a BAC of .15 or higher. Back to the DMV site, the average BAC has been about .14 for many years. I don’t see a median for the BAC, so we can’t be sure, but my own experience, from my own practice involving hundreds of DUI clients, is that a median BAC would probably be about .13.
There are a lot of statistical reasons why only extremely crude statistical conclusions can be drawn — I don’t want to bog this down in methodology and arguments about statistical validity — but let’s see what crude conclusions we can draw from what can be found online.
In Virginia in 2008, we had 757 traffic deaths, of which 243 involved a driver who was alcohol-impaired (32%). Doing a little meatball statistical analysis, let’s figure that 56% of those — or 136 — involved a driver who was over .15. The number that we don’t know, and probably can’t know, is how many of the alcohol-impaired crashes involved a driver who was impaired, and who had been convicted of a DUI in the past year. My guess is that that number is quite small. I have been practicing criminal law and personal injury law for more than 30 years, and have represented hundreds of DUI clients and hundreds of injury clients. I can count on one hand the number of DUI clients who had been convicted of a DUI in the previous year — perhaps 1% of my DUI clients, tops. In other words, if my client sample is typical, for 99% of DUI cases, the ignition interlock is unnecessary and a needless expense. Probably the main reason for this is practical — the first year after the DUI conviction is a year that the defendant is enrolled in ASAP. The person is already under supervision, being monitored for alcohol use. And the person is on a restricted license, and cannot drive except to work or to ASAP appointments. That first year is NOT the time that most of them need additional help staying sober. But that is the only time that this law gives them that additional control.
But what of the 1% who DO need that additional help staying sober? Again, just drawing from my own clientele, most of them had been convicted of a DUI with a high BAC — .15 or higher. Just an estimate, but I would bet that we are talking about 60% of the cases. They would already have been ordered to have an ignition interlock device installed under the old law. So maybe as much as .4% of the people who are arrested for DUI’s would be prevented from committing a second DUI by an ignition interlock device. Meanwhile, we also know that there were 28,162 DUI convictions in Virginia in 2011. Applying the .4% figure, ignition interlock devices for everyone might prevent an 113 new convictions, and perhaps one death a year (.4% of 245) and 22 injuries a year (.4% of 5,465) might be prevented by this new law. 28,162 ignition interlock devices will be installed in Virginia at a likely cost of $14 million ($500 a piece). I know that it is harsh, but I will apply the analysis of those who oppose government regulations in wondering whether the cost-benefit analysis makes it a smart idea.
In any event, let’s talk about practical problems. I was interviewed by phone a few days ago by a Winchester TV station — see the link here. Now we’ll talk about it not as a political decision, but as simply a reality that our clients need to know how to deal with. Here are a few tips (other than the obvious one of “Don’t drink and drive!”):
- If you have more than one car, make sure that your name is on the title of only the car that you intend to drive.
- If you have other members of the family who drive, make sure that there is a car that they can drive that is not titled in your name so that it doesn’t need to have the ignition interlock device on it.
- If you are an out-of-state resident, it could get confusing. I think that the correct answer is that ASAP will have to transfer your alcohol-counseling-and-probation to your home state, and that it will be up to the folks in your home state to get you set up on ignition interlock.
- It appears that under the law as it is now (after July 1), there is another choice that did not used to be available — as I read things, you should now be able to not drive at all for at least 6 months, and to fulfill the ignition interlock requirement that way.
- If you are an out-of-state student who picks up a Virginia DUI, it may be impossible to satisfy the ignition interlock requirements, so you may have to walk for 6 months.
- No Scope mouthwash before you drive.
- Read the information that they give you about things that can cause false positives. I had a client once who was registering as drinking because the ignition interlock device was picking up outgassing from half-empty paint cans in the back seat, or from a gas can he was carrying. Volatile organic compounds can confuse the device, and you would hate to have to go in front of the judge to explain away what seems to be an easily preventable problem.
Whether it is a good idea or a bad idea doesn’t matter — it is the law. And it is another reason why it is important to have good legal advice on what may seem like a simple DUI.
