e-Texas Recommendations

Driving while intoxicated or under the influence of drugs (DWI or DUI) is a serious problem, particularly in Texas. In 1998, Texas surpassed all other states in its number of alcohol-related highway fatalities. To reduce drunk driving, a 1998 federal statute penalizes states that lack open container laws and repeat DWI offender laws. Texas has neither, and so in 2001 we will see $37 million of our federal highway funds transferred from construction projects to highway safety or hazard elimination programs. This amount will increase to an estimated $84 million in 2003 if Texas still has not enacted laws. Texas law should be changed to meet the federal requirements by October 1, 2001.

Background

Driving while intoxicated or under the influence of drugs is the most common violent crime in the United States and a particularly severe problem in Texas, which in 1998 led the nation both in the number and percentage of DWI-related highway deaths.[1]In 1998, approximately 1,800 people died in alcohol-related crashes in Texas, and 50 percent of Texas’ traffic deaths were alcohol-related, compared to a national average of 38 percent.[2]

The National Highway Traffic Safety Administration (NHTSA) estimates one in three Americans will be involved in an alcohol-related crash at some point, whether they drink or not.[3] According to NHTSA, on an average weeknight, one in 13 drivers is alcohol-impaired, and on weekends, one in seven.[4]

The Texas Legislature has taken steps to reduce the alcohol-related casualties on Texas highways by inaugurating the state’s Administrative License Revocation (ALR) program in 1995; passing a “zero-tolerance” law in 1997 that prohibits drivers under 21 from operating a vehicle with any amount of alcohol in their blood stream; and by lowering the legal Blood Alcohol Content (BAC) limit for adult drivers from 0.10 to 0.08 in 1999.

TEA-21

The Transportation Equity Act for the 21st Century (TEA-21), the 1998 federal highway bill, provides penalties for states whose open-container and repeat drunk-driving offender laws do not meet federal requirements. TEA-21 says that if a state fails to enact and enforce either of the required laws by October 1, 2000, it will see part of its federal highway construction funds transferred to its highway safety or hazard elimination programs. This will occur each year until the required laws are passed.

In federal fiscal 2001 and 2002, 1.5 percent of a state’s construction funds will be transferred due to an unacceptable open-container law, and another 1.5 percent because of an unacceptable repeat offender law.[5] Those amounts will double in 2003 and continue at that level until the federal government determines that a satisfactory law has been passed. The transferred amounts augment existing funds for safety and hazard elimination programs.

Texas missed the October 1, 2000 deadline, and so in 2001, $37 million of Texas’ federal highway funds ($18.5 million for an unacceptable open container law plus $18.5 million for an unacceptable repeat offender law) will be transferred from construction projects to safety and hazard elimination programs.[6] These include anti-DWI projects, concrete median barriers on interstates with high rates of head-on collisions, and shoulder-texturizing, which alerts inattentive drivers that they are wandering off the highway. The remaining funds will go to the Hazard Elimination Program, which is largely federally funded and specifically created to reduce the number and severity of traffic accidents.[7]

The Hazard Elimination Program funds such projects as providing left-turn lanes, erecting concrete median barriers and guardrails, installing traffic lights and flashing beacons, and improving pavement markings.[8] Without acceptable laws, up to an estimated $42 million more will be transferred in 2002, and up to $84 million in each following year.[9]

Toughening the Open Container Law

Texas has no prohibition against driving with an open container of alcohol in a motor vehicle. A driver can legally have a drink in one hand and the steering wheel in the other as long as a peace officer doesn’t see the driver drinking.

Texas’ open container law, which fails to meet TEA-21 guidelines, reads, “A person commits an offense if the person consumes an alcoholic beverage while operating a motor vehicle in a public place and is observed doing so by a peace officer.”[10] The law’s maximum $500 fine is hard to enforce because an officer must actually see the driver take a drink.

To meet TEA-21 guidelines, an open container law must prohibit the possession or consumption of any alcoholic beverage in the passenger area of a motor vehicle; apply to all occupants; and cover all motor vehicles on any public highway or public right of way.[11]

A tougher law would not curtail all alcohol-related activities. In Texas’ “dry” areas, restaurants and other businesses often let customers bring their own alcoholic beverages. NHTSA guidelines say open containers of alcoholic beverages are not allowed in the passenger areas of motor vehicles but may be transported in the trunk.[12]In 1999, two open container bills introduced in the Texas Legislature would have exempted passengers in the living quarters of a house coach or trailer and in vehicles designed to transport persons for compensation (e.g., taxis, buses, and limousines).[13] The NHTSA says these exemptions are permitted.[14]

A “Real” Repeat Offender Law Needed

About a third of all US drivers arrested or convicted of drunk driving are repeat offenders with more than one DWI or DUI conviction in five years.[15] These persons are the most likely of all drivers to be involved in severe crashes.[16] Most have serious drinking problems and continue to drive while intoxicated despite the consequences, because they think they will not be caught.[17] Some reports show that DWI offenders drive drunk between 200 and 2,000 times before finally being arrested.[18]

Driver’s licenses often are suspended in an attempt to get repeat offenders off the road. However, motor vehicle officials estimate that 80 percent of all repeat offenders in the US continue driving after their licenses have been suspended or revoked.[19] A few states have addressed this problem successfully through the means prescribed by TEA-21: impounding or immobilizing the vehicles of repeat offenders, or requiring them to have ignition interlock devices installed. These are breath alcohol analyzers connected to the car’s ignition that prevent the vehicle from being started unless the driver can pass a breath alcohol test. California, for example, has significantly reduced repeat DWI offenses through vehicle impoundment, and Maryland has found that ignition interlock devices decrease the risk of repeat offenses by 65 percent.[20]

Tolerating repeat DWI offenses may encourage other destructive behavior. Most repeat offenders are not “social” drinkers, and their drinking often goes hand in hand with criminal behavior. A 1992 study of the criminal records of DWI offenders in Louisiana reported that 72 percent of the repeat offenders had a criminal record beyond DWI arrests.[21] Compared to first-time DWI offenders, they were four times more likely to have been involved in a robbery and twice as likely to have been involved in a burglary.[22]

TEA-21 Requirements

By July 2000, 15 states—but not Texas—had passed and were enforcing repeat drunk-driving offender laws acceptable under TEA-21.[23] According to NHTSA, Texas does not meet TEA-21 requirements and will continue to be sanctioned until it passes and enforces an acceptable law.

TEA-21 requires each state to have a repeat intoxicated driver law providing, at a minimum, that someone convicted of a second or subsequent offense for DWI or DUI shall:

• Be subject to the impoundment or immobilization of each motor vehicle they own or drive or the installation of an ignition interlock system on each vehicle.

• Receive an assessment of his or her degree of alcohol use and appropriate treatment.

• Receive a mandatory minimum sentence of at least 30 days’ community service or five days of incarceration (for a second offense) and at least 60 days’ community service or 10 days of incarceration (for third and subsequent offenses).[24]

Texas Law’s Shortcomings

Texas does not require a one-year license suspension for DWI/DUI offenses. Under the state’s Administrative License Revocation (ALR) program, adult drivers with previous DWI/DUI offenses generally have their licenses suspended for only 120 to 180 days.[25] (In cases in which a driver refuses to take a breath test and has a previous license suspension on record at the time of the second offense, the suspension is extended to a year.)[26]

In addition to the ALR program, another track is available to prosecutors for license suspensions. Section 521.344(b)(2) of the Transportation Code requires a longer suspension period of 180 days to two years for second and subsequent DWI offenses. Still, the 180-day minimum falls short of TEA-21’s one-year minimum license suspension.

Texas also allows offenders with suspended licenses to obtain occupational licenses to go to and from work. Federal guidelines specifically disallow occupational, restricted, or hardship licenses for repeat DWI offenders during the required one-year license suspension period, except in extreme cases.

Secondly, Texas does not require that all vehicles driven by a repeat offender be impounded or immobilized or have an ignition interlock system installed. To meet federal criteria, states must require at least one of the three sanctions be applied, but not all three. If a judge orders vehicle impoundment or immobilization, all vehicles owned by a repeat offender must be immobilized or impounded for an unspecified period. Likewise, if the judge orders the installation of an ignition interlock system, all vehicles owned by the repeat offender must be equipped with the device for an unspecified period after the license suspension period ends. TEA-21 allows exceptions to the impoundment and immobilization requirement only for hardships incurred by the offender’s family and vehicle co-owners, not the offender.[27]

Texas has no DWI-related requirement for immobilizing or impounding an offender’s vehicle; such actions are left to the judge’s discretion. Texas’ requirement for ignition interlock devices applies only to repeat offenders placed on community supervision or who apply for an occupational license. Also, the law does not require the device to be installed on all vehicles owned by a repeat offender.[28]

Furthermore, Texas does not meet the requirement that repeat offenders receive an assessment of their alcohol use and appropriate treatment. Under present law, judges can require repeat DWI/DUI offenders to submit to an evaluation and treatment approved by the Texas Commission on Alcohol and Drug Abuse as a condition of DWI community supervision.[29] But a judge can make other determinations in these cases, and may use discretion in ordering assessment and treatment. TEA-21 clearly requires assessment and appropriate treatment for all second-time or subsequent DWI convictions.

Texas does not meet the federally-required minimum of five days’ incarceration for second-time DWI/DUI offenders. Judges have several sentencing options for these offenders, and only one of them involves DWI community supervision, which includes a mandatory three-day incarceration.[30]

Highway System in Crisis

Without acceptable laws, Texas will see millions of annual federal highway construction dollars transferred to highway safety or hazard elimination projects.

The Texas Transportation Commission has reported that Texas’ highways are in crisis. A fourth of the state’s interstate highways in urban areas are functioning at 95 percent of traffic capacity. Texas’ interstate system, mostly completed in the early 1970s, is near the end of its 30- to 40-year life expectancy. And Texas traffic has tripled over the past 30 years. Texas Transportation Commissioner Robert Nichols has told legislators that the state lacks the resources needed to maintain, much less expand, its highway system. The Texas Department of Transportation (TxDOT) maintains that top projects previously planned for the next 10 years actually will require 21 years to finish, due to inadequate funding. According to Max Proctor, director of Programming and Scheduling at TxDOT, “We now have 36 percent of the money we need to keep pace with growth.”[31]

Recommendations

Fiscal Impact

Whether or not the recommendations above are adopted, Texas will not lose any federal highway funds under TEA-21. But failure to adopt the recommendations will severely limit the state’s discretionary use of these funds for construction. If it does not enact and enforce laws acceptable under TEA-21 before October 1, 2001, in federal fiscal 2002 the state will see approximately $42 million ($21 million for an unacceptable open container law plus $21 million for an unacceptable repeat intoxicated driver law) in federal highway construction funds transferred away from such uses to highway safety or hazard elimination. These amounts would double on October 1, 2002 ($42 million for open container plus $42 million for repeat offenders) and continued each year thereafter. In all, Texas would see up to $84 million transferred in 2003 and following years until it complies with TEA-21.

Enacting laws to meet TEA-21 requirements would involve some costs to the state.

According to the Texas Department of Public Safety (DPS), extending the minimum license suspension period for second and subsequent DWI convictions to one year would cause a one-time delay in revenue collected from license reinstatement fees in fiscal 2002. The Comptroller’s office estimates the amount of delayed collections at $1,356,000.

According to DPS, an estimated $273,000 would be needed in fiscal 2002 to update computer codes and programming related to the new one-year minimum license suspension requirement. Moreover, one additional full-time equivalent (FTE) programmer would be needed in fiscal 2002 and subsequent years, at an annual cost of about $64,000 for salary and benefits. The total cost to the General Revenue Fund in fiscal 2002 would be $337,000 ($273,000 plus $64,000); in fiscal 2003 and subsequent years, the cost would be $64,000.

The increased cost of incarceration related to the new laws would be absorbed by local governments. The estimate assumes that Texas has an average of 18,151 second-time DWI convictions annually and that judges will order incarceration instead of community service in half of these cases. The extra two days of imprisonment required to meet federal guidelines for second-time offenders would cost local governments just under $34 per day or $613,000 annually.[32]

The cost of alcohol abuse assessments and treatment required under TEA-21 would fall on DWI/DUI offenders, except for those who lack adequate financial resources. For these persons, assessment and treatment would be provided by TCADA based on financial eligibility criteria. The additional cost to TCADA cannot be estimated, since it is impossible to project the number of repeat offenders who would meet TCADA’s eligibility criteria or the type of treatment that would be appropriate. An assessment costs TCADA $30 to $60, and treatment options could range from costly inpatient hospitalization to a referral to Alcoholics Anonymous, which costs nothing.

FiscalYear	Savings/(Cost) to the General Revenue Fund	Cost to the State Highway Fund	Changein FTEs	Cost toLocal Governments
2002	($1,356,000)	($337,000)	+1	($613,000)
2003	$0	($ 64,000)	+1	($613,000)
2004	$0	($ 64,000)	+1	($613,000)
2005	$0	($ 64,000)	+1	($613,000)
2006	$0	($ 64,000)	+1	($613,000)

[1 ] Fax communication from Jodi Finley, project coordinator, Public Policy Department, Mothers Against Drunk Driving National Office, Irving, Texas, July 10, 2000; and National Highway Traffic Safety Administration, National Center for Statistics & Analysis, Traffic Safety Facts 1998—Alcohol (US Department of Transportation (Washington, DC, November 1, 2000), p. 7 (http://www.nhtsa.dot.gov/people/ncsa/pdf/Alcohol98.pdf). (Internet document.)

[2 ] National Highway Traffic Safety Administration, National Center for Statistics & Analysis, Traffic Safety Facts 1998—Alcohol (US Department of Transportation (Washington, DC, November 1, 2000), p. 7.

[3 ] US Department of Transportation, National Highway Traffic Safety Administration, Overview: Traffic Safety Facts 1997 (Washington, DC, July 4, 2000), p. 2 (http://www.nhtsa.dot.gov/people/ncsa/ovrfacts.html). (Internet document.)

[4 ] Bill Bronrott, “MADD Launches Nationwide Campaign Taking Aim at Repeat Offenders and Super-Drunk Drivers,” MADD News (December 29, 1999) (http://www3.madd.org/media/pressrel.cfm?ID=65). (Internet document.)

[5 ] The federal fiscal year begins on October 1 and ends on September 30 of the subsequent calendar year.

[6 ] E-mail communication from US Department of Transportation, National Highway Traffic Safety Administration, November 1, 2000; and telephone interview with Gary Taylor, senior regional program manager, National Highway Traffic Safety Administration-Region VI Office, Fort Worth, Texas, December 21, 2000.

[7 ] E-mail communications from Denise Pittard, legislative analyst, Texas Department of Transportation, October 31, 2000 and November 1, 2000.

[8 ] Fax communication from Denise Pittard, legislative analyst, Texas Department of Transportation, April 11, 2000; and e-mail from Denise Pittard, October 31, 2000.

[9 ] US Department of Transportation, Federal Highway Administrator, Notice: Advance Notification of Federal Aid Highway Funds to be Apportioned (Washington, DC, June 30, 2000), tables 2, 3; and telephone interview with Gary Taylor, senior regional program manager, National Highway Traffic Safety Administration-Region VI Office, Fort Worth, Texas, December 21, 2000.

[11 ] Texas Department of Transportation, “Open Container of Alcoholic Beverage Fact Sheet,” July 20, 2000.

[12 ] Fax communication from Gary Taylor, Region VI, National Highway Traffic Safety Administration, Dallas, Texas, August 7, 2000; and memorandum from Heidi L. Coleman, assistant chief counsel for General Law, National Highway Traffic Safety Administration, Washington, DC, to Adele Derby, associate administrator for State and Community Services, National Highway Traffic Safety Administration, March 5, 1999.

[14 ] Fax communication from Gary Taylor; and memorandum from Heidi L. Coleman, assistant chief counsel for General Law, National Highway Traffic Safety Administration, Washington, DC, to Adele Derby, associate administrator for State and Community Services, National Highway Traffic Safety Administration, March 5, 1999.

[15 ] US Department of Transportation. National Highway Traffic Safety Administration, “State Legislative Fact Sheet: Repeat Intoxicated Driver Laws,” January 2000. (http://www.nhtsa.dot.gov/people/outreach/stateleg). (Internet document.)

[17 ] Katherine Prescott, “Here’s Who Repeat Offenders Are; Here’s What To Do About Them,” Washington Post National Weekly (Washington, DC, December 8, 1997), p. S2.

[18] Brandy Anderson, “How Many Bites of the Apple Do We Give Convicted Drunk Driving Offenders?” Driven Magazine (Fall 1998) (http://www.madd.org/driven/fall98/repeat-offenders.shtml). (Internet document.); and The Presidential Commission on Drunk Driving, Final Report (November 1983), p. 1.

[19 ] National Highway Traffic Safety Administration, “How Do We Remove Drivers With Suspended Licenses From Our Roads?” Traffic Tech (Washington DC, March 1998), p. 1.

[20 ] US Department of Transportation, National Highway Traffic Safety Administration, “State Legislative Fact Sheet: Repeat Intoxicated Driver Laws,” January 2000, p. 2. (http://www.nhtsa.dot.gov/people/outreach/stateleg). (Internet document.)

[21 ] US Department of Transportation, National Highway Traffic Safety Administration, State of Knowledge of Alcohol-Impaired Driving: Research on Repeat DWI Offenders, p. 13.

[22 ] L.A. Gould and K.H. Gould, “First-time and Multiple-DWI Offenders: A Comparison of Criminal History Records and BAC Levels,” Journal of Criminal Justice, 20(6), pp. 527–39, cited in US Department of Transportation, National Highway Traffic Safety Administration, State of Knowledge of Alcohol-Impaired Driving: Research on Repeat DWI Offenders, p. 13.

[23] Fax communication from Jim Cotton, Traffic Operations Division, Texas Department of Transportation, Austin, Texas, August 15, 2000.

[24 ] Fax communication from Jim Cotton, Traffic Operations Division, Texas Department of Transportation, Austin, Texas, “Repeat Driving While Intoxicated Offenses Fact Sheet,” July 20, 2000.

[27] US Congress, Congressional Federal Register, Volume 65, Number 193, Rules and Regulations, October 4, 2000, pp. 59112-59124; posted as “Repeat Intoxicated Driver Laws: Final Rule” at (http://www.dot.gov/nhtsa/whatsup/tea21programs/164FinalRule.html). (Internet document.)

[28] Memorandum from Heidi L. Coleman, assistant chief counsel for General Law, National Highway Traffic Safety Administration, Washington, DC, to Adele Derby, associate administrator for State and Community Services, National Highway Traffic Safety Administration, March 10, 1999.

[30 ] Memorandum from Heidi L. Coleman, assistant chief counsel for General Law, National Highway Traffic Safety Administration, Washington, DC, to Adele Derby, associate administrator for State and Community Services, National Highway Traffic Safety Administration, March 10, 1999.

[31 ] Texas House of Representatives, House Research Organization, Focus Report, Highway Funding: Toward a New Fiscal Roadmap (Austin, Texas, August 3, 2000), p. 1.

[32] This estimate is based on the number of misdemeanor and felony DWI convictions reported by the Texas Office of Court Administration’s 1999 Statewide Summary of Reported Activity for the Year Ended August 31, 1999 (Austin, Texas); the estimated percentage of DWI offenders who are repeat offenders, as reported in National Highway Traffic Safety Administration, Traffic Tech (February 1995), p. 1; and the daily cost of incarceration according to Christopher Medici, research specialist, Texas Commission on Jail Standards, September 27, 2000.

Increase Public Safety by Strengthening Texas’Drunk-Driving Laws

Summary