It should be noted the survey does not have the requisites of a standard statistical sample. Completed responses were received from 70 judges, a response rate of 18.6%. Since only one follow-up email was sent, it is possible that participation might have increased with additional follow-up requests. Likewise, it is also possible that some of judges receiving the survey did not respond because they did not hear DWI cases or DWI cases comprised a small percentage of their docket. In addition, some of the answers are more anecdotal than empirical (based on the judges’ experience and observation). Keeping these caveats in mind, the following responses outline some of the parameters of DWI cases Texas judges are currently hearing, breath interlock concerns and practices, views regarding DWI legislation, and their educational needs.
It should be noted the survey does not have the requisites of a standard statistical sample and some of the responses and answers are more anecdotal than empirical (based on the judges’ experience and observation). Keeping that caveat in mind, this article outlines some of the parameters of DWI cases Texas judges are currently hearing, their breath interlock concerns and practices, views regarding DWI legislation, and their educational needs.
Demographics
of Judges Surveyed
The survey
respondents were geographically dispersed throughout the state, from both rural
and urban areas, with a widely varying caseload. Length of service on the
bench ranged from one year to 28 years with the average being nearly 10 years. Number
of DWI cases disposed of annually ranged from 15 to 2000, with the average
being 327. More than three out of four (approximately 77%) of first-time DWI
offenders are being sentenced to jail instead of probation, with a range of
answers from 3% to 99%.
Problem
Areas in Dealing with DWI Defendants
Judges were
asked what were the three most troublesome or frustrating problem areas when
dealing with DWI defendants. They were also requested to prioritize those areas
as First, Second or Third most troublesome or frustrating. This question
generated numerous open-ended responses and it is speculated that individual
experience and situations contributed to common areas being rated as first,
second or third most troublesome.
Problem areas ranked as Number One, i.e., most troublesome or frustrating, dealt with ineffective officer testimony, weak prosecutorial efforts, jury skepticism of scientific testimony, indigent defendants, long wait times for blood results, recidivism, interlock issues, lack of providers and/or treatment facilities, suspensions and surcharges, and lack of individualized punishment options.
In the Number Two place for troublesome or frustrating problem areas were defendants’ situations, i.e., their failure to understand alcoholism or acknowledge addiction, language barriers and financial problems; followed by frustrations caused by continuances and delays, lack of training, improper administration of tests, and poor quality videos; interlock and monitoring concerns; recidivism; surcharges; and probation issues.
Problem areas ranked as Number Three were also related to defendants – their recidivism and failure to comply with terms of probation; cultural backgrounds that support drinking; public sympathy and jury empathy for defendants, trial issues such as delays, lack of treatment and supervision resources; ineffective officer testimony, weak prosecutorial efforts, jury skepticism of scientific testimony, and the necessity of making written findings in every Motion to Suppress; DPS surcharges, and occupational drivers licenses.
Breath
Interlock Devices and Practices
Judges were
asked to select which of eight listed problems were more frequently encountered
when ordering breath interlock devices. The most frequently selected problem
was “defendants who cannot afford the cost.” This was closely followed by
“knowing what to order when the defendant says that he/she has no car.” The
third most frequently selected problem was “defendants’ attempts to circumvent
the operation of the unit.” The remaining problems, in order of selection,
were “knowing which car/s to order installation on;” “probation officers not
having time to monitor compliance;” “written reports of violations being
inconsistent or hard to understand;” “the unavailability of written violation
reports;” and “finding an available vendor.”
Judges were next asked, “What is your biggest worry or concern when imposing a breath interlock order?“ Responding judges were overwhelmingly concerned about defendants:
- saying they have no vehicle
- driving another vehicle other than the one on which the device was installed; and
- circumventing or interlock device.
A secondary concern was cost of the device and hardships imposed to the defendant’s family. Monitoring, compliance, and accuracy issues and lack of local vendors were also mentioned.
When judges were asked what percentage of time they issued a breath interlock order when not required by statute, 81% reported having issued a breath interlock order when not required by statute.
Judges who reported having issued a breath interlock order when not required by statute were asked to estimate the percentage of time they did so.
Answers ranged from 3% to 99%, with the average being 77%.
Judges reported that written interlock reports were two and one half times more likely to be sent to probation rather than to the court or judge. Thus it was not surprising that most judges reported they reviewed an individual defendant’s written interlock report less than 25% of the time. Judges rated their confidence level with the written reports provided by interlock providers as 7.5 (on a scale of 1-10 with 1 indicating “not at all” and 10 indicating “extremely confident”) Judges who did review the written interlock reports were three times more likely to use that information to increase the terms of the order in the event of repeated violations rather than to decrease the term if no or limited violations were reported. Although a few judges employed progressive sanctions or looked at the totality of the circumstances, the most frequent consequence for probationers caught driving with a suspended license was the filing of a motion to revoke probation.
Reducing
Recidivism
Judges were
asked to rate the effectiveness of various options in reducing recidivism
(changing behavior) on a scale of 1-5 (with 1 being the least effective and 5
being the most effective). DWI Courts were rated as most effective (4.3) and
DPS Civil Penalties were least effective (2.0):
Field Sobriety Tests
Judges were asked to rate, on a scale of 1-4 (with 1 being the most effective and 4 being the least effective, which field sobriety tests they found most useful in their role as fact finder. Horizontal gaze nystagmus was rated as most effective by more than one-fourth of the responding judges (25.8%), followed closely by the walk and turn test (23.9%. Video was rated more useful (12.1%) than the one leg stand (9.4%) and alphabet recitation (9.0%). Interviews (4.5%), totality of the circumstance (3.9%), blood/breath tests (3.9%), recording of driving facts (0.02%), and finger touch and count tests (0.02%) were also mentioned, and 7.36% of the responses were incomplete:
Drug
Recognition Expert Testimony
Judges were
asked if a Drug Recognition Expert has ever testified in their court. Slightly
less than two-thirds of the judges (64.18%) replied that a Drug Recognition
Expert had never testified in their court while slightly more than one-third of
the judges (35.8%) reported a Drug Recognition Expert had testified in their
court.
Impaired
Driving Statutes
Judges were
asked to give their input as to what was working and/or not working within the
current system of impaired driving statues. They were encouraged to comment
about the range of punishment, probation and sanctioning alternatives, driver's
license suspension statutes, alcohol monitoring devices, treatment
alternatives, sentencing alternatives, etc. The general consensus was that
first offenders were being handled appropriately to prevent recidivism. However,
judges felt there was not enough emphasis on repeat offenders and there was
insufficient funding for treatment options and alternatives. Judges decried DPS
suspensions and surcharges; the lack of sentencing options and alternatives;
scattering of DWI laws throughout the statutes; and specimen refusals. They
mentioned the need for better law enforcement, increased traffic safety officer
training; and state provided alcohol monitoring devices. Concern was expressed
about the subjectivity of field testing; lack of public support or sympathy for
alcohol concentration of 0.08 equaling intoxication; shortening of jail times;
and ineffective legislation. It was commented that courts
should have a more active role in ensuring probationers comply with conditions
of probation, such as DWI Court participation. The suggestion was made for
changes in the law to make a breath test refusal a rebuttable presumption of intoxication
and to make it a legal presumption that a breath test result within 2 hours of
the stop is presumed to be the alcohol level at the time of the stop.
Needed
Changes
When judges
were asked what options they would like to see available to help dispose of
impaired driving cases more efficiently, deferred adjudication was the most
frequently mentioned option followed by the need for more treatment options and
programs, quicker lab response time, larger budgets, and more intensive
supervision of offenders.
Judges were asked what changes were needed with regard to how the system deals with the repeat offender/high risk offender. Higher punishment ranges and mandatory jail time were the most frequent changes needed. Alternatives to incarceration such as mandatory DWI courts, intensive supervision, treatment programs, and standardized forms and procedures, and educating the legislature were also requested.
DWI
Courts
Twenty four
judges expressed interest in DWI Court Training that would help establish a DWI Court. Fifteen judges who had an existing DWI court expressed interest in advanced DWI
Court Training for their team members. Twelve of those judges expressed
interest in having access to a visiting DWI Court Judge who has been trained by
the National Drug Court Institute and would be available free of charge to sit
by assignment. Judges who had an existing DWI court were asked for specific
additional tools/incentives/resources/training needed for their DWI Court. Responses included the need for training re funding for case management;
information re treatment resources; resources for DWI Court team development;
provision of SCRAM units for the first ninety days; Violent Criminal
Apprehension Program screens for non-drivers; and forms, checklists and
incentives used by other DWI Courts.
Improving
Impaired Driving Judicial Education
Judges
suggested a variety of ways to improve educational courses offered in the area
of impaired driving and related subjects. More DWI-specific courses taught by
trial judges with large DWI dockets or skilled practitioners were requested –
including statutory
requirements for interlock as condition of bond, condition of probation, or
condition of occupational drivers license, alternative sanctions and treatment,
explaining complex DWI laws. Training in trying a DWI case (i.e., dealing with expert testimony, SFST
and breath testing issues, suppression issues, officer testimony) was requested
as well as the availability of online judicial education courses. The
inclusion of DPS training courses was also mentioned as well as live alcohol
workshops. Training that allowed more discussion time, sharing of tips and
advice, and learning “tricks of the trade” employed by overzealous attorneys
was also requested. Other requested topics included effective treatment
programs and alternatives – especially for rural judges, guidelines for
interactive judicial admonishments, and grants training.
When asked if they had visited the Texas Center’s DWI-specific web site, slightly less than half (42%) of the responding judges replied they had visited the website. Reasons for not visiting the website included not knowing about it, forgetting the password, and having no need to visit. One judge wrote that he/she would now visit it. Judges who reported visiting the Texas Center’s DWI-specific web site were asked which topics had been found helpful and to suggest additional topics they would like included. Topics listed as most helpful were legislative updates, CCA case summaries, and statutes. Other helpful topics (in descending order) were publications; links to continuing education articles; judicial resource information; DWI newsletter archives; and videos. Forms were another judicial resource requested to be added to the website.
What will the Texas Center do with the Judicial Survey
results?
One
of the expressed purposes of the survey was to determine additional education
and resources needed by judges who hear DWI cases. Thoughtful comments and
suggestions were contributed by all judges who participated in the survey. The Texas Center appreciates this valuable input in helping achieve its mission of “Judicial
Excellence through Education.” As a result of the Judicial Survey, the
following changes are being made:
-
The DWI website is being redesigned
- The DWI Website will be publicized and promoted at all Texas Center conferences
-
The highly secure judicial listserv portion of the DWI website is being updated to allow the attachment of forms for exchange
-
Case law and statutory updates relating to DWI will be maintained and electronically updated by Freelance Enterprises, Inc., publisher of Baker's Texas Drugs & DWI Handbook
-
Online educational training for new DWI Court Team Members will be developed
-
A CD explaining DWI Courts and how they operate will be developed for use by judges who wish to generate local community support for DWI Courts
-
An interactive DWI trial will be developed
-
The DWI College will include many of the requested topics
-
An optional one-half day ignition interlock update session will be offered prior to the Criminal Justice Conference
-
DWI Court Team Training will be offered
-
The Texas Judicial Resource Liaison will be available to sit as a visiting DWI Court judge
-
Additional impaired driving education will regularly be offered at the Regional Conferences, Texas College for Judicial Studies, and the Annual Judicial Conference
- Topics will include the proper administration of Standardized Field Sobriety Testing (including Horizontal Gaze Nystagmus) as well as defense objections and cross-examination techniques, and training specific to the breath interlock device, including its proper installation and operation, interpretation of the written reports, and the most common methods defendants use to attempt to defeat the device.
- Training will accommodate various learning styles with varied methods of delivery
- Trainings will offer more discussion time so judges can learn from each other and address common problems and concerns.
If you have any further suggestions concerning the survey or our proposed changes, please contact:
Judge
David L. Hodges
Judicial
Resource Liaison
Texas Center for the Judiciary
or
Dr.
Ann Blankenship
Research
and Grant Program Manager
Texas Center for the Judiciary