ICWinter09: Summary of DWI Survey


It should be noted that 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 judges receiving the survey did not respond because they did not hear DWI cases or that 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 that Texas judges are currently hearing, 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 driver's 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 tampering with the ignition 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 an average of 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 through 10, with 1 indicating “not at all” and 10 indicating “extremely confident”). Judges who reviewed 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 through 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 through 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 had 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 eExpert had testified in their court. Continue next column	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 two 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 regarding funding for case management; information regarding treatment resources; resources for DWI court team development; provision of SCRAM units for the first 90 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 driver's 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 were 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 has been 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 courtCTeam 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; Training 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 back to top
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It should be noted that 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 judges receiving the survey did not respond because they did not hear DWI cases or that 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 that Texas judges are currently hearing, 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 driver's 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 tampering with the ignition 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 an average of 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 through 10, with 1 indicating “not at all” and 10 indicating “extremely confident”). Judges who reviewed 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 through 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).

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Field Sobriety Tests
Judges were asked to rate, on a scale of 1 through 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 had 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 eExpert had testified in their court.

Continue next column

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 two 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 regarding funding for case management; information regarding treatment resources; resources for DWI court team development; provision of SCRAM units for the first 90 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 driver's 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 were 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 has been 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 courtCTeam 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;
Training 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

Dr. Ann Blankenship
Research and Grant Program Manager
Texas Center for the Judiciary