Good afternoon Chairman Creedon, Chairman O'Flaherty and members of the Committee on The Judiciary. It is my pleasure to be here in Boston, Massachusetts and talk about the National Transportation Safety Board's recommendations for addressing hard core drinking drivers.

The National Transportation Safety Board is an independent Federal agency charged by Congress to investigate transportation accidents, determine their probable cause, and made recommendations to prevent their recurrence. The recommendations that arise from our investigations and safety studies are our most important product. The Safety Board has neither regulatory authority nor grant funds. However, in our 38-year history, organizations and government bodies have adopted more than 80 percent of our recommendations.

The Alcohol-Highway Safety Problem

The Safety Board has recognized for many years that traffic crashes are this nation's most serious transportation safety problem. More than 90 percent of all transportation related deaths each year result from highway crashes. About 39 percent of highway deaths nationwide and 43 percent of highway deaths in Massachusetts are alcohol-related. While Massachusetts and the nation as a whole have seen a slight decline over the last 2 years in the number of alcohol-related fatalities, far too many people are dying from an entirely preventable cause.

The Hard Core Drinking Driver

The Safety Board is particularly concerned about hard core drinking drivers, who were involved in about 55 percent of alcohol-related fatalities in 2003, the last year for which statistics are available. While it appears that we may be making progress to reduce overall alcohol-impaired driving, the percent of alcohol-related fatalities involving hard core drinking drivers really has not changed over the last 5 years. The Board defines hard core drinking drivers as individuals who drive with a blood alcohol content (BAC) of 0.15 percent or greater, or who are arrested for or convicted of driving while intoxicated within 10 years of a prior driving while impaired (DWI) conviction. From 1983 through 2003, almost 171,000 people died in crashes involving hard core drinking drivers.

Massachusetts has certainly experienced its fair share of hard core drinking drivers. In mid July of this year, Mr. Bonifadio Perez Estrada was involved in a one-car crash and subsequently arrested for DWI. This was his 7th DWI charge. At the beginning of August, Mr. Edward Salie lost control of his vehicle and pinned a woman against a wall. His subsequent arrest was his 3rd DWI charge. Most experts agree that impaired drivers persist in their behavior because these drivers believe that they will not be caught and/or convicted. That perception is based on reality. On average, drinking drivers make 1,000 drinking driving trips before being arrested.

In 2000, the Board issued a report that examined a variety of countermeasures for hard core drinking driving. The Board identified which countermeasures have been effective in the specific States that have utilized them and recommended a model program (attached) to reduce hard core drinking driving. The problem of hard core drinking drivers is complex. No single countermeasure appears to be sufficient to address this issue because these offenders require different approaches. We need a comprehensive system of prevention, apprehension, sanction, and treatment to reduce the crashes, injuries, and fatalities caused by these drivers.

Today, I want to discuss several key issues pertaining to impaired driving. First, to make decisions, policy makers need accurate and reliable data to define the problem, and our DWI control system needs test results to identify problem-drinking drivers. Second, drivers with a high BAC pose a much greater risk than other impaired drivers and merit a significant intervention the very first time they are identified. Third, because hard core drinking drivers typically have an underlying alcohol abuse problem, mandatory assessment is necessary to identify and recommend treatment for the problem. Fourth, Massachusetts should authorize vehicle sanctions. Finally, Massachusetts should establish a holding and release process that ensures recently arrested DWI offenders cannot immediately return to the road before their BAC has returned to normal.

BAC Testing (HB 4099 and HB 942)

Substantial commitments of financial and human resources are made annually in every State to implement or expand DWI countermeasures. Obtaining support, particularly at the local level, for DWI countermeasures is dependent upon demonstrating that DWI violations are a serious local problem. Complete and accurate information on the involvement of alcohol in fatal highway crashes is essential for acquiring such support. To allocate resources for, and to evaluate the effectiveness of, DWI laws and programs, each State must know both the level of, and the annual changes in, alcohol involvement in highway crashes. Such knowledge also is a critical prerequisite to the planning and implementation of effective countermeasures. The Safety Board recognized the value of testing drivers involved in fatal crashes nearly 20 years ago, when it recommended that Massachusetts and the other States require alcohol testing of all drivers involved in fatal highway crashes.

The national proportion of drivers involved in fatal crashes who are tested for alcohol has only increased from about 41 percent in 1982 to about 49 percent in 2003. In addition, most of the drivers tested are those killed in the crash, and results were not obtained for all drivers who were tested. At about 37 percent, Massachusetts tested a lower percentage than the national average in 1982. And unfortunately, Massachusetts has regressed, testing only about 33 percent of drivers involved in fatal crashes in 2003. Therefore, it is entirely likely that more people are killed from alcohol-related crashes than estimated. The scope of the problem may well be larger than what the data tells us.

Repeat offenders, those familiar with the system, whether previously convicted or diverted, are more likely to refuse a test than first offenders. By refusing the test, a repeat offender essentially opts himself out of the system. The lack of a valid test result robs the State of a valuable piece of information in identifying those most in need of a significant intervention and substantially weakens the system for preventing alcohol-related fatalities. Sanctions for refusal need to be increased, and police need authority to demand a test.

The Safety Board supports House Bills 4099 and 942 because they both propose measures to ensure BAC test results are obtained. Extending the license suspension period and allowing evidence of test refusal to be admissible at trial are two measures that encourage offenders to take the BAC test.

Drivers with High Blood Alcohol Content (HB 4099, HB 866, HB 887 and HB 917)

Drivers with a high BAC, 0.15 percent or greater, require strong intervention similar to that ordinarily prescribed for repeat offenders. Those who reach this high BAC level have consumed large amounts of alcohol, much more than is considered to be social or responsible drinking. Research has found that drivers with a high BAC are at a substantially greater risk of being involved in a fatal crash. The Insurance Institute for Highway Safety (IIHS) has estimated that the relative fatality risk for drivers in single-vehicle crashes with a high BAC is 385 times that of a zero-BAC driver and for male drivers the risk is 607 times that of a sober driver.

High BAC drivers are a particular problem in Massachusetts. Of the illegally impaired drivers involved in fatal crashes between 2000 and 2004, about 70 percent had a BAC at or above 0.15 percent.

At least 36 States have laws providing for an "extreme" or "aggravated" DWI offense; 25 States define the extreme DWI offense as the drivers having a BAC of 0.15 or 0.16 percent. House Bills 4099, 866, 887, and 917 include provisions to address high BAC drivers. In all 4 bills, offenders with a BAC of 0.15% must undergo mandatory assessment for alcohol abuse. The Safety Board strongly recommends mandatory assessment for any hard core drinking driver. HB 4099 also establishes enhanced penalties for offenders with a BAC of 0.20%; while this is a step in the right direction, the Committee could strengthen the legislation by lowering the level to 0.15% and aligning it with the level at which assessment would be required.

Mandatory Assessment (HB 4099, HB 866, and HB 887)

As noted above, hard core drinking drivers either operate their vehicles at a high BAC level or repeatedly operate their vehicles while they are intoxicated. And given the likely number of times a hard core drinking driver has operated the vehicle while intoxicated before ever being arrested, the offender likely has a problem with alcohol. Driving while intoxicated is a crime and should be treated as such, with appropriate sanctions for the illegal behavior. Without treating the underlying problem, however, it is unrealistic to expect the offender to change his or her behavior.

The Safety Board supports House Bills 4099, 866, and 887 for their proposals to require assessment for repeat and high BAC offenders. Ensuring that these offenders are assessed for potential alcohol abuse problems increases the possibility that they will receive treatment for those problems and thereby reduce recidivism.

Vehicle Sanctions (HB 4099, HB 866, HB 887, and HB 957)

Because hard core drinking drivers have demonstrated an inability to separate their drinking from their driving, measures to separate the offenders from their vehicles are also important. In addition, while license sanctions are useful for preventing DWI violations, hard core drinking drivers frequently continue to drive while their licenses are suspended or revoked. In a recent survey, 65 percent of suspended drivers and 71 percent of revoked drivers in California admitted to driving during their disqualification.

A Safety Board analysis of 1998 FARS data showed that, if involved in a fatal crash, drivers with suspended or revoked licenses and a prior DWI conviction are 4.43 times more likely to be drinking at the time of the crash than drivers with a valid license and no prior DWI conviction. Another California study found that California drivers with suspended or revoked licenses have 3.7 times the fatal crash rate of the average driver, and a second study determined that the relative risk of a fatal crash is substantially higher than average among drivers suspended or revoked for DWI offenses. States must create a system to intervene effectively with DWI offenders the very first time they are arrested.

Therefore, the Safety Board recommends the use of vehicle sanctions such as license plate impoundment, vehicle immobilization, vehicle impoundment, vehicle forfeiture, and ignition interlock. Vehicle sanctions substantially decrease the opportunity for hard core drinking drivers to operate vehicles either while their license is suspended or while they are intoxicated, something, unfortunately, that will likely reoccur unless an offender is assessed and treated for any alcohol abuse problems identified. In its 2000 safety study, the Board noted the following results of existing vehicle sanction programs:

• License plate actions reduce recidivism by 50 percent.
• Vehicle immobilization reduces recidivism by 36 percent.
• Vehicle impoundment reduces subsequent convictions by 18 to 34 percent and subsequent crashes by 25 to 34 percent.
• Vehicle forfeiture reduces crashes by 14 percent and alcohol-related fatalities by 32 percent (preliminary data).
• Ignition interlocks are especially effective while they are on the vehicle; they reduce recidivism by 62 to 75 percent.

The Safety Board also proposes that vehicle sanctions, except for vehicle forfeiture, be applied administratively. Like administrative license revocation, which Massachusetts authorizes, vehicle sanctions can reduce or eliminate the opportunity for DWI offenders to drive impaired or transfer vehicle ownership before the lengthy trial process concludes. In addition, studies have revealed that judges often avoid imposing available vehicle sanctions. Authorizing administrative action to implement vehicle sanctions after a DWI arrest will increase the likelihood that these effective sanctions will be used.

Massachusetts lacks any viable vehicle sanctions. House Bills 4099, 866, 887, and 957 propose a variety of measures that are critical to Massachusetts's DWI countermeasure system. The Safety Board generally supports any measure that will help separate an offender from his or her vehicle.

Holding and Release Policies (HB 804, HB 811, and HB 886)

Holding and release policies for DWI offenders should reflect the nature of the driving impairment, especially for high BAC and repeat offenders. This issue was brought to the forefront by a tragic death in the summer of 2000. Just three hours after his arrest and release for drunk driving, a still-impaired driver killed Ensign John Elliott, a recent graduate of the U.S. Naval Academy. This crash, and others investigated by the Safety Board, shows why it is critical that detention agencies adopt policies that do not permit the release of alcohol offenders until they are no longer legally impaired.

Unfortunately, this is hardly a new concern. The Safety Board recommended that the States adopt improved detention and release policies in 1984! The Board recommended that policies that do not permit the release of alcohol offenders until the blood alcohol concentration has dropped below the lowest level of impairment specified in State law. That recommendation was made following a study on deficiencies in enforcement, judicial and treatment programs related to drunk drivers.

The Safety Board had investigated an accident in which a 19-year-old driver was killed while riding a motorcycle six hours after he had been arrested for DWI. The motorcycle skidded 60 feet, vaulted 28 feet, landed on its side, and then rolled 107 feet before it came to rest. The driver had a blood alcohol content of 0.16 percent following his initial arrest, but was released about 90 minutes after the alcohol test was conducted. The city jail in which the driver was held had a policy of holding persons arrested for alcohol-related offenses for 4 hours, or releasing them to a responsible adult.

While the Safety Board found that many detoxification centers at that time held individuals until their blood alcohol level dropped to zero, even this may not be enough. Sweden's National Road and Traffic Research Institute has reported that a person's ability to carry out complex driving maneuvers is reduced for at least 3 hours after the blood alcohol concentration reaches zero. Those with hangovers show a "marked inability to subjectively determine if they are fit to drive at all." The dizzy, queasy feeling often accompanying a hangover may diminish driving ability by as much as 20 percent, even when the blood alcohol concentration is zero.

The Safety Board supports House Bills 804, 811, and 886, which propose measures to prevent similar tragic consequences.

Conclusion

Massachusetts has witnessed a slight decline in alcohol-related fatalities. However, Massachusetts is still above the national average for alcohol-related fatalities. And hard core drinking drivers, those individuals who have not responded to years of public service announcements and increasing penalties for DWI offenses, continue to pose a significant danger to other people on the road. The Safety Board urges you to take action on these life-saving measures this year.

Thank you for allowing the Safety Board to testify about legislation that you can enact to save lives on streets and highways in Massachusetts. I would be pleased to answer any questions that you may have.

HARD CORE DRINKING DRIVER MODEL PROGRAM

• Sobriety checkpoints (frequent, statewide)
• Vehicle sanctions
  • License plate actions (impoundment, confiscation, etc.)
  • Vehicle immobilization
  • Vehicle impoundment
  • Vehicle forfeiture
  • Ignition interlocks (court-ordered and administrative)
• State and community cooperative enforcement programs for driving while suspended/revoked/unlicensed
• Zero BAC for prior offenders
• Aggravated offense for high BAC (0.15 or greater)
• Alternatives to confinement
  • Home detention with electronic monitoring
  • Intensive supervision probation
  • Jail-treatment facilities (for multiple DWI offenders)
  • Eliminate community service (does not reduce recidivism)
• Plea bargaining restrictions
  • Prohibit lessening of DWI offense to non-alcohol-related offense
  • Require reasons for DWI charge reduction to be entered into public record
• Eliminate diversion programs that allow erasing, deferring, or otherwise purging the DWI offense record, or that allow the offender to avoid license suspension
• Administrative license revocation for BAC test failure and refusal
• 10 year DWI record retention and offense enhancement period
• Individualized court-based sanction programs with frequent offender contact, unannounced testing, mandatory assessment, treatment, and long-term follow-up