Good afternoon Chairman Ashford and members of the Judiciary Committee.  It is my pleasure to be here in Lincoln and talk about the National Transportation Safety Board’s recommendations for addressing hard core drinking drivers.  Unfortunately, I will be opposing the measure before you, LB 553, as it repeals Administrative License Revocation, a measure the Safety Board has promoted for many years.

The National Transportation Safety Board is an independent Federal agency charged by Congress to investigate transportation accidents, determine their probable cause, and make safety recommendations to prevent their recurrence.  The recommendations that arise from our investigations and safety studies are our most important product.  The Safety Board cannot mandate implementation of these recommendations.  However, in our 39-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 motor vehicle crashes are responsible for more deaths than crashes in all other transportation modes combined.  More than 90 percent of all transportation related deaths each year result from highway crashes.  Each year, about 40 percent of highway deaths nationwide are alcohol-related.  Alcohol-related fatalities increased from 16,694 in 2004 to 16,885 in 2005, and the number of alcohol-related fatalities remains substantially higher than in 1999, when approximately 15,790 people died in alcohol-related crashes.

The emotional toll on families is staggering, but impaired driving also has a financial impact.  According to calculations by the National Highway Traffic Safety Administration (NHTSA), the lifetime cost to society for each fatality is over $977,000; alcohol-related crashes cost society billions of dollars each year.  While the affected individual covers some of these costs, overall, NHTSA estimates that those not directly involved in crashes pay for nearly three-quarters of all crash costs, primarily through insurance premiums, taxes, and travel delay.  Clearly, much needs to be done to reduce this ongoing tragedy.

The Hard Core Drinking Driver

The Safety Board is particularly concerned with hard core drinking drivers, who are involved in about 54 percent of alcohol-related fatalities.  The Board defines hard core drinking drivers as individuals who drive with a blood alcohol concentration (BAC) of 0.15 percent or greater, or who are arrested for driving while intoxicated within 10 years of a prior driving while impaired (DWI) arrest.  From 1983 through 2005, more than 183,000 people died in crashes involving hard core drinking drivers.  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.  NHTSA estimates that on average, an individual makes about 1,000 drinking driving trips before being arrested.

In 1984, the Safety Board completed a safety study that included recommendations to reduce the problem of repeat DWI offenders.  Since those recommendations were issued, all States have made efforts to address the alcohol-related highway safety problem, making considerable progress in detecting, arresting, and adjudicating drinking drivers.  However, the measures taken and the degree of implementation of the Safety Board’s 1984 recommendations by States and localities have not been uniform, and alcohol-related crashes continue to claim thousands of lives. 

In light of the thousands of deaths still resulting from these crashes, the Safety Board focused on hard core drinking drivers in 2000.  In that report, the Board examined a variety of countermeasures used by the States to identify which of these actions have been effective, and recommended a model program to reduce hard core drinking driving.  The problem of hard core drinking drivers is complex; no single countermeasure by itself appears to reduce recidivism and crashes sufficiently.  We need a comprehensive system of prevention, apprehension, sanction, and treatment to reduce the crashes, injuries, and fatalities caused by these drivers.  Administrative license revocation (ALR) is a key part of that system.

Administrative License Revocation

Over the years, Nebraska has implemented several of the Safety Board’s proposed countermeasures, including Administrative License Revocation.  The Board first recommended that States adopt ALR over 20 years ago.  The Board’s rationale then was the same as it is now; ALR is both a general and specific deterrent for impaired driving, meaning that it encourages the general public not to get behind the wheel after drinking and encourages DWI offenders not to repeat their criminal behavior.  Without ALR, an offender can get back on the road as soon as he or she is sober enough to drive.  Often times, an offender is arrested a second time for DWI before the first case goes to trial.

ALR gives a law enforcement officer the authority, on behalf of the State licensing agency, to confiscate the license of any driver who either fails or refuses to take a chemical breath test.  The drunk driver is off the road with no dilatory tactics, no mitigating circumstances, no plea-bargaining and no pre-trial diversion.  The basis for allowing ALR is that the danger posed by an alleged impaired driver is greater than that driver’s interest in keeping a license until conviction for impaired driving.

A truly effective ALR program authorizes the officer to confiscate the license on the spot, immediately following the breath test.  The driver then receives a temporary license that is valid for a short, specified period of time.  During that time, he or she may seek an administrative hearing -- a process that is independent of any criminal proceedings.  That hearing addresses a single issue:  Did the driver fail or refuse to take a breath test?  If the answer is yes, the license remains suspended.

The effectiveness of ALR has been demonstrated repeatedly.  In a 1999 study sponsored by NHTSA, researchers found that the number of drivers who had a BAC at or above 0.10 percent and who were involved in fatal crashes decreased by almost 13 percent after ALR was implemented.  There was almost a 19 percent decline among drivers who had a positive BAC below 0.10 percent and who were involved in fatal crashes.  In an earlier study sponsored by the U.S. Department of Justice, researchers found that the rate of recidivism in North Dakota declined by 40 percent after North Dakota enacted ALR.

Opponents of ALR have argued that it is unconstitutional -- that it denies the DWI offender due process.  However, no State supreme court has declared ALR unconstitutional.  To the contrary, the Supreme Court of the United States ruled that revocation of a license, prior to an administrative hearing, is not a violation of due process as long as there are provisions for a swift post-suspension hearing.

Another objection to ALR has been the possibility that suspended a person’s license will inhibit that person’s ability to maintain a positive and productive life.  The concern that the loss of driving privileges, especially in rural areas, would result in the loss of a job, prompted studies in New Mexico, Mississippi, and Delaware to determine whether the concern is justified.  In all three States, the problem was minimal.  For example, in Delaware, a rural State with little public transit, only 1.2 percent of those whose licenses were revoked lost their jobs.  Loss of employment resulting from the loss of a driver’s license is unusual.

The benefits of ALR are well recognized throughout the nation.  ALR was one of the recommendations from the Surgeon General’s 1988 workshop on drunk driving.  ALR has been one of the elements in qualifying for Federal grants since 1988, and remains one of eight elements needed to qualify for Section 410 grants under the current Federal highway funding law.

In 1990, the National Highway Traffic Safety Administration joined with the Safety Board to form the ALR Coalition, inviting a auto manufacturers, insurers, enforcement, and many other groups to share information on the effectiveness of  ALR throughout the country.  Despite the fact that 40 States and the District of Columbia had ALR in 2000, the Safety Board still included ALR as one of the eleven core elements of its model program to address hard core drinking driving (attached).

ALR works because it specifically deters those drivers who are caught drinking and driving from doing it again.  And, it generally deters those who have not been caught, because they are afraid of losing their driving privileges.  ALR is still one of the most effective measures to reduce alcohol-related fatalities because it works with all offenders.  Nebraska’s experience demonstrates the effectiveness of ALR; the single greatest decline in alcohol-related fatalities occurred during the debate and enactment of ALR.  LB 553 would not only remove an important tool in the fight to eliminate impaired driving, it would send the wrong message, particularly to hard core drinking drivers.

Conclusion

Almost 38 percent of highway fatalities in Nebraska involve alcohol, and more than 54 percent of alcohol-related fatalities involve a hard core drinking driver.  ALR is a proven countermeasure for impaired driving.  ALR played a major role in reducing alcohol-related fatalities from over 28,000 per year in 1980 to less than 17,000 in 2005.  ALR needs to be retained, improved, and supported with the other measures included in the Safety Board’s model program.  As evidence of the importance of ALR and other impaired driving measures, the Board has placed the hard core drinking driving recommendation (including ALR) on its “Most Wanted” list of State recommendations.  The Safety Board urges the Nebraska legislature and this committee to keep this effective sanction in place by voting against LB 553.

Thank you again for allowing the Safety Board to testify about this important problem.  I would be happy to answer any questions you may have.

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NTSB Hard Core Drinking Driving Model Program

• Frequent and statewide sobriety checkpoints.  During a 1994 program, Tennessee experienced a 20.4% reduction of crashes involving impaired drivers.
• Programs for identifying individuals who drive on a suspended or revoked license.  In Ohio, such a program contributed to a 30% reduction in alcohol-related fatalities.
• Defining repeat offender as anyone arrested of a DWI offense within 10 years of a prior arrest for DWI.  One DWI arrest is indicative of a substance abuse problem.
• Enhanced penalties for DWI offenders arrested with a BAC level of 0.15% or higher.  The estimated relative fatality risk for drivers in single-vehicle crashes with a high BAC is 385 times that of a zero-BAC driver.
• Administrative license revocation – reduces involvement of adult drivers in alcohol-related fatal crashes by 13 to 19%
• Prohibiting plea bargaining.  Alternatively, requiring that the original alcohol-related charge be listed in the court and motor vehicle licensing records.  Towns in Arkansas and Kentucky experienced a reduction in recidivism after establishing plea bargaining limits.
• Prohibiting diversion programs.  Diverted offenders recidivate faster and often receive multiple diversions despite legislated limits on its use.
• Individualized court-based sanction programs (DWI Courts) with frequent offender contact, unannounced testing, mandatory assessment, treatment, and long-term follow-up.  Participants in the Rockdale County program had a 6% recidivism rate after 1 year and a 13.8% rate after 4 years, as compared to an 11% rate and 24.7% rate for offenders adjudicated in neighboring jurisdictions.  A similar program in Oregon produced a 48% reduction in re-arrests for DWI for participants in the program when compared with offenders who went through traditional courts.
• Alternatives to jail confinement:
  • Home detention with electronic monitoring.  One year after entering a Los Angeles County program, participants had about a one-third less recidivism rate.
  • Intensive supervision probation.  Milwaukee County’s probation program resulted in a re-arrest rate of 6% for participants, as compared to 11% for the control group.
  • Jail-treatment facilities, especially for multiple DWI offenders.  Residents of a Baltimore County facility have a 4% recidivism rate, as opposed to the 35% recidivism rate for a comparison group.
• Requirements that DWI offenders maintain a zero BAC level.  In conjunction with other components of a comprehensive system, this measure in Maine has resulted in a 45% reduction of the proportion of DWI offenders to all drivers involved in fatal crashes.
• Vehicle sanctions:
  • License plate impoundment - reduces recidivism by 50% after 1 year.
  • Ignition interlock device – reduces recidivism by 62 to 75% after 1 year.
  • Vehicle immobilization – reduces recidivism by 36% after 1 year.
  • Vehicle impoundment -18 to 34% reduction in subsequent convictions and 25 to 34% reduction in crashes.
  • Vehicle forfeiture - 14% reduction in crashes and 32% reduction in alcohol-related fatalities (preliminary data).