D  e  s  e  r  t     E  x  p  o  s  u  r  e      february 2005

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Taking the Fourth

DWI checkpoints skirt the Fourth Amendment and fail to arrest most drunk drivers. But, checkpoints, though they mostly scare social drinkers, do save lives. Even as the war against DWI stalls, that's a tradeoff New Mexicans seem willing to keep making — because it's easier than tackling the real problem.

By David A. Fryxell

Shortly after suppertime on an autumn evening, the last twilight already leaching from the sky, we came upon a red welter of brake lights on the road to Pinos Altos. We were on our way to a performance in the Mimbres Region Arts Council's Folk Series, and this spontaneous traffic jam threatened our goal of getting good seats. Was there an accident up ahead? we wondered as our car crawled forward and we spotted the flashing lights of police cruisers.

When we finally reached the choke point, we found no accident—only patrol cars. Through our rolled-down window, an officer asked my wife, who was driving, for her license and registration, then inquired whether she'd had anything to drink recently. She responded truthfully—perhaps foolishly, in retrospect—that she'd had half a glass of wine with dinner. The officer instructed her to step out of the car and made her walk a straight line and touch her nose with her extended index finger. Her legal sobriety established, we were at last allowed to continue on our way to the Pinos Altos Opera House.

Welcome to the world of sobriety checkpoints, a key weapon in New Mexico's battle to lift itself off the "worst list" of DWI states.

This was a first for us. Somehow, we'd spent much of our adult lives in states—Iowa, Minnesota, Wisconsin—among the 11 that don't use random roadblocks to check for drunk drivers. In our time in states that do allow checkpoints, we'd never run into one. But of course we'd never lived in New Mexico before—a state that ranked first or second seven times between 1990 and 2002 in the worst crash death rates per capita where one or more drivers had .08 blood alcohol content (BAC) or greater. A state that, according to the DWI Resource Center in Albuquerque, ranks first in deaths from cirrhosis of the liver. A state where fatal crashes are 38 percent more likely to involve DWI than elsewhere in America.

We'd seen the TV ads where a glowering Gov. Bill Richardson barks, "You drink. You drive. You lose." Thank goodness New Mexico was cracking down on what's obviously a serious problem! If we'd ever lost a loved one to a drunk driver, we'd probably be out manning that checkpoint ourselves.

But still, as the folk music faded and we drove back home through the darkness, we wondered: How could a roadblock, stopping every driver whether exhibiting signs of impairment or not, be legal? Doesn't the US Constitution say something about unreasonable search and seizure? Where's the "probable cause," a phrase we knew from countless courtroom dramas?

How many people actually get arrested for DWI at such checkpoints, anyway? If you wanted to catch drunk drivers, was a roadblock en route to Pinos Altos at 7 p.m. really the best spot? Why not check drivers as they leave some bar—or on the road back to Silver City later in the night, when we sailed home unimpeded?

How, for that matter, does harassing people who've had a glass of wine with dinner help stop the guy who's knocked back eight cans of beer in an hour? (As I later learned, that's what a 160-pound man would have to consume to reach the average .167 BAC of drivers arrested for DWI in Grant County.)

In its understandable zeal to change a culture that somehow seems to encourage drunk driving, and to reduce the tragic toll of alcohol-related crashes, had New Mexico taken a wrong turn somewhere?

The national Mothers Against Drunk Driving (MADD) organization, whose members often have been touched most painfully by DWI, would answer that last question with an unequivocal no. Indeed, even as I began researching this article, MADD issued a call for more sobriety checkpoints. It urged the 10 states that don't allow them—typically on state constitutional grounds—and the one, Alaska, that allows checkpoints but doesn't use them, to get with the program. "This is a proven, effective strategy," said MADD President Wendy Hamilton. "It really does have credible scientific backing that proves that it reduces alcohol-related fatalities by 20 percent."

New Mexico first began to make headway against drunk driving after a sweeping set of law changes and anti-DWI initiatives in late 1993 and early 1994, which included an extensive checkpoint program launched in December 1993. These changes also included lowering the BAC limit to .08, tougher sentencing guidelines and penalties, and $11 million in added alcohol taxes. An in-depth 2000 study for the National Highway Traffic Safety Administration (NHTSA) of New Mexico's anti-DWI efforts concluded that it was impossible to measure the effect of any single change. Overall, however, the study credited the initiatives with a 19 percent reduction in drunk-driving fatal crashes from December 1993 through 1995 compared with January 1988 through November 1993.

That progress continued, with New Mexico climbing out of the DWI cellar to fourth- or fifth-worst among the states in DWI fatalities. In October, the NHTSA released rankings that showed New Mexico improving to sixth-worst, with 198 alcohol-related traffic deaths in 2003, down from 219 the previous year. (DWI is difficult to measure; arrest rates, for example, may reflect only stepped-up enforcement and not an actual reduction in drinking and driving. Most experts agree that per-capita deaths in DWI-related crashes is the most meaningful gauge, especially in comparison with overall traffic fatalities. From a high in 1982 to 2003, according to the Legislative Council Service, New Mexico has reduced alcohol-related crash deaths at almost double the rate of all traffic fatalities.)

But recently, despite that climb to sixth, New Mexico's battle against drunk driving seems to have plateaued. Since 1998, according to the DWI Resource Center, "the alcohol-involved fatality rate has gradually increased, reversing the previous favorable trend." Measured as a percentage of all traffic deaths, DWI fatalities dropped for five straight years to a low of 44.8 percent in 1999, according to the Legislative Council Service: "For reasons still not clear to those who study the problem, progress then slowed for both New Mexico and the nation as a whole." Our percentage of DWI fatalities actually ticked upward in 2000, dropping again to 45.1 in 2003, still fractionally higher than in 1999.

The same trend can be seen in national statistics. In 2002, MADD warned that the war on drunk driving had "flatlined. We are losing ground and losing lives." Despite a slight dip in 2003, national alcohol-related traffic fatalities remain relatively unchanged at more than 17,000 annually, plus half a million injuries. Alcohol-related traffic crashes still claim a life every half-hour, on average, according to MADD.

Just last month, NHTSA administrator Dr. Jeffrey W. Runge conceded that the US would fall short of its goal to reduce alcohol-related traffic deaths to .53 per 100 million miles traveled by all vehicles by the end of 2004.

What's happened? Linda Atkinson, founder and executive director of the DWI Resource Center, which targets New Mexico's drunk-driving problem, blames a slackening of law-enforcement activities—especially sobriety checkpoints. She's not necessarily pointing a finger at law-enforcement officials; her group will be lobbying this legislative session, for example, for increased funding for law enforcement, especially in rural areas. "Our state police are undermanned and underpaid," Atkinson says. She's also hoping the state will finalize a plan to place two full-time DWI officers in each of five counties, including Dona Ana, for which $1 million has already been appropriated.

Runge, a former emergency-room physician who became chief of the NHTSA in 2001, says "we already know what works" to reduce drunk driving. But while continuing to support "high visibility traffic enforcement," he is promoting special "DWI courts" to help hard-core offenders grapple with their alcohol-abuse problems. Why? "I think the educable have been educated, and that's why we saw the rapid drop-off in the numbers," Runge has explained. "What we're dealing with now is a very different population of impaired drivers. There are still some who commit social indiscretions, but by far and away, the larger majority of [drunk] drivers are those who have alcohol-abuse problems."

Efforts by government and groups such as MADD, so this thinking goes, have plucked all of the "low-hanging fruit" in the battle against drunk driving. Most of us now "get it." Instead having six drinks and climbing behind the wheel, Runge says, we've learned to quit at one. We've been "scared straight" by sobriety checkpoints and those "You Lose" ads.

"We've gotten the message to those who are willing to listen," agrees Rich Ferrary. A former lawyer with the state highway department, he founded the Dona Ana County MADD chapter in 1999 with his wife Joanne, an ex-traffic safety official with the highway department (where she helped launch Operation DWI) and Sabina Urbina. "It's pretty simple—don't do stupid things. That resonates with most folks."

So who's left out there on the highways, drinking and driving? The hard-core cases not deterred by a few checkpoints, or even by losing their driver's licenses (70 percent of DWI license revokees, some studies report, still drive; in New Mexico, half of revokees don't even bother to apply for reinstatement when eligible).

"We've already deterred all the social drinkers," according to Chuck Hurley, a spokesman for the National Safety Council, which advocates tougher laws against drunk driving. "We're now down to the hard core of people who drink and drive in spite of public scorn."

And in spite of sobriety checkpoints. "Roadblocks target, harass and threaten the privacy of responsible, law-abiding citizens," says John Doyle, executive director of the American Beverage Institute, an association of restaurants and on-premise retailers, "while ignoring drivers with high blood alcohol concentrations and repeat offenders. These are the dangerous few who do not respond to threatening campaigns and cause the majority of alcohol-related deaths on our nation's highways."

Atkinson of the DWI Resource Center flatly rejects this "hard-core" argument, especially in New Mexico. She says, "That's a myth put out by the alcoholic-beverage industry, which would rather have people think the social drinker is not a risk on the road."

Ferrary of the local MADD chapter sees it a bit differently. Some 70 percent of the population either doesn't drink at all or doesn't drink enough to get drunk, he says. That leaves 30 percent—heavily overrepresented by males under 35—who are at risk and who should be the chief targets of anti-DWI efforts. He thinks progress can still be made in this group: "There's a certain hard-core number we'll never get below, of people who just don't care. But we're not anywhere close to that baseline number yet."

This debate, according to a 2003 Los Angeles Times report, has split those looking to further reduce DWI fatalities: "On one side are safety advocates who say greater emphasis should be placed on catching and prosecuting highly intoxicated drivers, who cause the majority of fatal accidents. But others favor continuing to emphasize the message that all drinking and driving can impair safety."

So who are New Mexico's drunk drivers? Are they social drinkers who can still be scared by ever more sobriety checkpoints and TV ads? Or are they hard-core alcohol abusers, requiring a fresh approach?

Anti-DWI crusaders are fond of citing the fact that about 70 percent of the 19,847 New Mexicans arrested for DWI in 2003 were first-time offenders, according to the state transportation department. Similarly, says Atkinson, more than 60 percent of those involved in DWI-related accidents are first offenders. "They've never been arrested before," she says, "yet the first time law enforcement sees them they're involved in a crash. To think we can focus on hard-core drinkers—we're not there yet."

Yet other statistics suggest that these first-time offenders are in fact also hard-core drinkers—just drunks the cops haven't caught before. The profile of the average DWI offender in New Mexico hardly fits the social drinker who's had a glass of wine with dinner—or two or three glasses, for that matter. Think eight drinks in an hour: The average blood alcohol content of arrested DWI offenders is .16, twice the legal limit.

That's the average BAC, not the maximum. According to the National Hardcore Drunk Driving Project, 40 percent of New Mexicans arrested for DWI in 2001 had blood alcohol levels of .15 or above. Of those actually convicted, more than 45 percent had BAC of .15 or more and 41 percent were repeat offenders.

MADD's Ferrary concedes, "The only difference between many first-time offenders and repeat offenders is that the first-timers hadn't been caught yet and had to suffer the consequences of their risky behavior."

Anti-DWI activists point out that impairment begins with the first drink—you don't have to hit a BAC of .08, much less .16, to have alcohol affect your driving ability. (Technically, in New Mexico you don't have to hit .08 to be arrested for DWI, if alcohol can be shown to have impaired your driving.) That thinking was also behind the recent push to lower BAC limits from .10 to .08, which New Mexico enacted in 1993 before much of the rest of the nation. According to MADD, the risk of a driver at .08 being killed in a crash is at least 11 times that of a non-drinking driver; at .10 BAC the risk reaches 29 times greater.

Advocates of the national .08 limit cited NHTSA statistics that "more than 20 percent of alcohol-related traffic deaths involve BAC levels below .10"—a figure that's actually oddly low if you're trying to make the case that the problem is social drinkers, not hard-core drunks. That means 80 percent of DWI deaths can be blamed on drivers who've consumed the equivalent of (for a 170-pound man) more than five drinks in an hour on an empty stomach.

Advocates of a national .08 limit also widely quoted a 1996 study by Dr. Ralph Hingson of Boston University that concluded if all states adopted the lower limit for DWI, 500 to 600 fewer fatal crashes would occur annually. Although .08 became a Congressional mandate, the predicted drop in fatal crashes simply hasn't happened: "We seem to be stalled or stuck at relatively the same fatality rate," according to Dennis Utter, chief mathematician for NHTSA's National Center for Statistics and Analysis. The US General Accounting Office subsequently found that the 500-600 fewer crashes conclusion was "unfounded."

While it's true that someone who's had even a single drink won't be as sharp a driver as that same person completely sober, the same could be said for using antihistamines or cell phones and driving. (A British study found that using a cell phone while driving caused more impairment than a .08 BAC.) Moreover, at lower levels blood alcohol content is a less significant factor in crash risk than the driver's age: According to studies cited by the Preusser Research Group in an Albuquerque presentation on "BAC and Risk," a sober teenager has almost the same crash risk as a 40-year-old with a .08 BAC. A non-drinking senior citizen's crash risk is equivalent to that of a 50-64-year-old with .06-.07 BAC. (Two of the three studies cited by Preusser actually found that for all drivers combined crash risk declined from .00 BAC to .02-.03 BAC.)

Nobody's arguing that it's a good idea to have a few belts before getting behind the wheel, or that someone with a .08 BAC is a safe driver. And .08 advocates themselves were careful to distinguish persons at that level as not "social drinkers." The question is whether targeting true "social drinkers"—those most deterred by sobriety checkpoints—is the right focus in the battle against DWI crashes. Impairment may begin with the first drink, but the typical DWI offender has had a lot more than one.

Besides being serious alcohol abusers, what else characterizes New Mexico's drunk drivers? They are disproportionately male and young. Although men represent 50 percent of licensed drivers, they account for 79 percent of DWI crashes, according to the DWI Resource Center. One in five DWI crash drivers is under the legal drinking age.

DWI offenders are also overrepresented among Hispanics and Native Americans. According to a 2002 study, Hispanics had twice the rate of alcohol-involved fatalities as Anglos and Native American had five times the rate.

Looking ahead, according to a 2004 report, "The Demographics of DWI in New Mexico," by James W. Davis of the University of New Mexico's Division of Government Research, those statistics mean New Mexico's DWI problem is likely to get worse, not better. That's because the prime demographic groups for DWI are growing as a percentage of the overall population. Davis says the population ages 20-34 will grow about 22 percent by 2015, as the larger "Echo" generation replaces "Generation X," versus 15 percent for the population as a whole. In that age group, while the Anglo population will increase about 11 percent, Hispanics will increase 27 percent and Native Americans by 45 percent. Davis predicts that the number of alcohol-involved drivers in fatal crashes will increase 17 percent over the next 10 years—with four-fifths of that increase coming among Hispanics and Native Americans who are currently ages 9-23. Tragically, since DWI-related fatalities are most likely to kill the drivers and their families, that means the increased DWI toll "will fall most heavily on the Hispanic and Native American populations."

To "move the numbers," Davis concludes, the key will be focusing on the Echo generation, particularly coming-of-age Hispanics and Native Americans. While he cautions that we shouldn't let Anglo or older drunk drivers off the hook, he asks, "What is the message that will move the attitudes in this group over the next 10 years?"

"Instead of just saying 'no, no, no,' we've got to come up with something more creative to reach down into the younger age group," says Ferrary of MADD, who believes it's crucial to target young people—before they become adult alcoholics who drink and drive. "We can't just be preachy. Kids don't listen to that, anyway."

According to the National Commission Against Drunk Driving, about two-thirds of drivers passing through sobriety checkpoints or stopped by special DWI roving patrols are ages 21-34. Drinking drivers in this age group are more likely to escape detection at checkpoints, the commission says, than are older drivers. Among the expert advice on how to reach younger drivers at risk for DWI, the commission cites: "Don't use scare tactics that say 'don't do [blank],' as young adults simply edit themselves out of a threat, and they won't see such messages as an honest communication."

But scare tactics, as we will see, are what sobriety checkpoints are all about. To the extent that checkpoints are effective, it's almost entirely by scaring potential drunk drivers off the road with the fear of apprehension.

No one seriously questions that sobriety checkpoints do reduce the number of alcohol-related traffic fatalities in the communities where they are employed. The research is voluminous and pretty much unanimous: An annotated bibliography of studies on checkpoints by the Insurance Institute for Highway Safety runs to five pages of tiny type. The Task Force on Community Preventive Services reviewed 23 such studies and concluded that on average alcohol-involved crashes dropped 20 percent and fatal crashes 23 percent after the implementation of checkpoints. A 2001 Centers for Disease Control study found checkpoints led to a 20 percent reduction in alcohol-related crashes and fatalities. The most commonly cited single study is a 1994-1995 checkpoint test in Tennessee, which also showed a 20 percent drop in fatal crashes involving a driver at .10 BAC or greater.

"The research is so solid, year after year, showing a 20 percent reduction," says Atkinson. "It's actually even higher when checkpoints are done more regularly."

Surprisingly, however, the 11 states that do not employ checkpoints collectively rank better in NHTSA comparisons of DWI-related crash death rates than the states that do. Although worst-ranked (in 2002) Wyoming doesn't use checkpoints, all the other states among the worst 10 are checkpoint states. Obviously, there are many cultural and demographic variables complicating these rankings. Still, it's puzzling that no-checkpoints Texas ranked 14th worst while neighboring New Mexico ranked 5th worst. It's also hard to see a checkpoints effect in the nationwide trends: DWI fatalities declined at a 43 percent faster average annual pace from 1982 to 1990, the year the US Supreme Court unleashed checkpoints as constitutional, than from 1990-2003.

And, no, despite my driving-home puzzlement, sobriety checkpoints do not violate the Fourth Amendment. You can see why a literal reading of the Fourth Amendment might make one wonder: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Admittedly, the Constitution doesn't mention automobiles, but courts have often extended the Bill of Rights to things unforeseen by the Founding Fathers. A roadblock that stops all travelers with no probable cause sounds like exactly the sort of thing we got out from under King George III to avoid.

Nonetheless, in June 1990, the Supreme Court ruled by a 6-3 majority in Michigan v. Sitz that society's interest in reducing alcohol-impaired driving was sufficient to override Fourth-Amendment concerns about the intrusion of a sobriety checkpoint. The state of Michigan conceded that stopping a car at a checkpoint constituted a Fourth Amendment "seizure," but the court ruled that the magnitude of the DWI problem was such that this was nonetheless "reasonable." Chief Justice William Rehnquist wrote, "In sum, the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program."

(Nonetheless, Michigan remains among the states that don't allow roadblocks. Its State Supreme Court promptly ruled that the checkpoints challenged in the Sitz case violated the state constitution. In 2002, Michigan ranked 35th in the rate of DWI traffic deaths—a better record than 27 states that do use roadblocks.)

Today, not even the American Civil Liberties Union seriously contests the legality of checkpoints, so successful has been the campaign to make pariahs out of drunk drivers. The ACLU Web site has more entries for the Ku Klux Klan than for DWI.

But the 1990 Rehnquist decision was based on inflated statistics for the number of alcohol-related traffic fatalities (see box page XX), coupled with an exaggerated faith in checkpoints' ability to actually catch drunk drivers. Justice John Paul Stevens proved more on the mark when he described the net effect of checkpoints as "infinitesimal and possibly negative."

In another dissenting opinion, Justice William Brennan wrote, "I do not dispute the immense social cost caused by drunken drivers, nor do I slight the government's efforts to prevent such tragic losses. . . . But consensus that a particular law enforcement technique serves a laudable purpose has never been the touchstone of constitutional analysis. " He concluded, "This is a case that is driven by nothing more than symbolic state action—an insufficient justification for an otherwise unreasonable program of random seizures. Unfortunately, the Court is transfixed by the wrong symbol—the illusory prospect of punishing countless intoxicated motorists—when it should keep its eyes on the road plainly marked by the Constitution."

Brennan was correct in describing the punishment effect of checkpoints as "illusory." The Michigan checkpoints that provided the Supreme Court test resulted in only two arrests for DWI. The "Checkpoint Tennessee" program that's frequently pointed to as proof of roadblocks' effectiveness actually resulted in 11 other arrests or citations for every DWI arrest; in nearly 900 checkpoints, the program netted only 773 DWI arrests. Although the public may perceive the goal of checkpoints as arresting drunk drivers, even the most ardent checkpoint advocates concede that officers don't make many arrests at roadblocks. "A successful checkpoint would be zero arrests, zero crashes," says Atkinson.

Typical was a July roadblock staffed by nine officers from the Silver City Police Department that stopped 323 vehicles, issued 15 various citations and made one arrest for an outstanding warrant. Zero DWI arrests were made. In August, state police officer Greg Smith told the Sun-News, "We'll have random checkpoints and we're checking for insurance registration and licenses on drivers. And a lot of times other violations can pop up. So we just set up random checkpoints to check everybody out."

It's probably a good thing for the constitutionality of checkpoints that Officer Smith was not testifying in the Supreme Court ruling on Michigan v. Sitz. "Checking everybody out" and catching expired licenses was not exactly what the court had in mind when it ruled that checkpoints topped the Fourth Amendment.

But the officer was just being honest: Checkpoints are a lousy way to arrest drunk drivers. That's why, across the country, law-enforcement agencies are typically less enthusiastic about checkpoints than about so-called saturation patrols or roving patrols. "Law-enforcement officials don't like standing there and waiting for the drunk drivers to come to them," Atkinson says.

Sergeant Lonnie Sandoval, a spokesman for the state police in Silver City, says, "With checkpoints, we notify the media and tell the public: If you're dumb enough to go through drunk, we'll arrest you. But that's why there are not a lot of arrests—the drivers are forewarned."

Once it starts, word about a checkpoint's exact location travels fast, Sandoval adds. "These days, everyone has a cell phone."

Sandoval believes that checkpoints are "still effective. Even if we just get one drunk driver, it makes a difference." But he personally prefers saturation patrols: "They give the officer the leeway to go to areas with higher problems and a better opportunity to make arrests, rather than waiting for the offenders to come to us. Saturation patrols are more effective than roadblocks; the statistics are higher."

A National Academy of Sciences study concurs: "Our results suggest that policies focused on stopping erratic drivers with greater frequency might be more successful," wrote the study authors in the Journal of Political Economy. An FBI report concluded similarly, "Overall, measured in arrests per hour, a dedicated saturation patrol is the most effective method of apprehending offenders."

Experts agree, too, that saturation patrols beat checkpoints for catching repeat offenders. One NHTSA study noted, "For chronic drunk drivers, checkpoints may not be very effective since these drivers are more likely to avoid them in the first place, and have learned to alter their driving behavior to avoid detection. . . . Specific deterrence strategies, such as Roving Patrols, might be the optimum means for targeting this population of drunk drivers." An FBI report found, "Saturation patrols may afford a more effective means of detecting repeat offenders, who are likely to avoid detection at sobriety checkpoints."

Some evidence suggests patrols may even be more effective in cutting crash numbers. When Florida officials switched from roadblocks to roving patrols for their holiday enforcement push in 2003, traffic fatalities were cut in half. That's overall fatalities, not necessarily from alcohol-related crashes—but isn't saving lives the whole point? (And critics have questioned the methodology of counting "alcohol-involved crashes"—see box on page XX.)

In Las Cruces, according to Ferrary, law-enforcement officials have experimented with a sort of compromise between checkpoints and patrols, aimed at increasing the number of arrests. In these "mini-checkpoints," officers set up a highly visible checkpoint early in the evening, then move after midnight to a location more in the path of drivers leaving a bar, for example.

Often overlooked in the DWI debate is the fact that arrests have dropped sharply from their peak in New Mexico in 1993—when extensive checkpoints began. (The first full checkpoints year, 1994, also had a near-record number of arrests, but the trend since has been mostly downward.) Although DWI arrests ticked up slightly in 2003 versus 2002, they were still 16 percent below a decade before. Convictions have declined even more sharply, down 41 percent from 1993 in part due to a drop in the conviction rate to just 51.9 percent.

Despite the arrest statistics
, many anti-DWI advocates continue to call for more checkpoints, because the bottom line isn't to arrest drunk drivers—even though that may be what much of the public believes. Instead, the measure of "effectiveness" in battling DWI is reducing crashes, particularly fatal crashes. Whether the method used to achieve that goal targets the innocent or the guilty ultimately makes no difference. Lives are saved.

This "ends justify the means" attitude was spotlighted most spectacularly in the effort by Grants, NM, State Representative Ken Martinez—now the House majority leader—in the last legislative session to require ignition interlock devices on all New Mexico automobiles. The measure would have treated all New Mexicans like criminals, forcing drivers to prove their sobriety (using gizmos costing $1,000) before their car would start. The legislation actually passed the state house, 45-22, before time ran out on the session. Sen. Michael Sanchez of Belen, who chaired the Senate committee that would have considered the measure, described Martinez' bill as "a sound idea."

Martinez' own rationale for the bill might have been lifted right out of Brave New World: "We're leaving a huge segment of DWI drivers out when we wait until after they're convicted." Ignition interlocks on every car, truck and commercial vehicle would shift the focus, he argued, to preventing drunken driving, rather than punishing those who've already killed and injured others. Martinez justified punishing the innocent instead of the guilty with the seemingly irresistible argument made for all such tradeoffs of individual rights: "This bill will save lives."

Atkinson of the DWI Resource Center, who served on the task force launched in the wake of the ignition-interlock debate, calls last session's Martinez bill "stupid." DWI offenders would have found ways around it, she says, just as they keep on the road despite having licenses revoked.

But is the argument for checkpoints that much different? "The research is clear that roving patrols are not as effective as checkpoints in reducing crashes," Atkinson says. "They make more arrests, but they don't reduce death and injury."

Law-enforcement officials who'd rather go seek out DWI offenders are missing the point, she goes on: "The whole point is to bring as many people in contact with law enforcement as possible, to publicize the effort. With saturation patrols, the publicity isn't as good, and the officers don't reach as many people."

Apparently, the fact that the vast majority of people reached by checkpoints have done nothing wrong and have given officials no reason to interdict them is immaterial if you're getting results. "Increased perception is what's important," says Atkinson. "People aren't going to take a chance if they think they might get caught." She likens it to the public perception of speeding: New Mexicans think they won't get caught, so they drive 10-15 miles over the limit. The minute they cross into Texas or Colorado, though, where they fear a ticket, they slow down.

She's hardly alone in focusing on the publicity and perception aspects of checkpoints. Dr. Jeffrey Michael, director of the NHTSA's Office of Impaired Driving and Occupant Protection, has said, "We need to make the best use of the arrests that we're making . . . that is, increasing the perceived risk of arrest community-wide from a small number of actual arrests. . . . You're looking at the perception—you're not trying to arrest a lot of people." Paul Snodgrass, a regional program manager for the NHTSA, has cited a study that compared two states conducting checkpoints: "One publicized the checkpoints and one did not. There was a drop in crashes in the state that publicized, and not much change in the other state."

Ferrary says MADD locally has worked to better explain checkpoints to frustrated law-enforcement officials. "If you want to catch people, they figure a patrol is the way to do it. With a checkpoint, you advertise it. You don't tell an armed robber you're going to be at the bank! But checkpoints were never designed to be places where you arrest a whole bunch of people," he emphasizes. "It's the deterrent effect. We really work at telling officers the measure of success isn't how many people you arrest."

"Arrests don't touch that many people," is how Peter Roeper of the Prevention Research Center in California recently put it, "but at a sobriety checkpoint, you've communicated to 1,000 people."

That's what the battle against drunk driving has come to: Defining "communicating" as detaining innocent motorists without probable cause.

Even in its instructions to local communities on how to conduct checkpoints, the US Department of Transportation notes, "Because only a small percentage of the driving population is affected, most people will only know about sobriety checkpoints through word-of-mouth or media reports."

And "most people"—not hard-core drunk drivers—are the target audience. An American Beverage Institute (ABI) white paper on sobriety checkpoints maintains, "Far from the worthwhile goal of catching dangerous drunks, roadblocks have their greatest impact on the behavior of individuals who generally restrict their alcohol consumption before driving anyway."

Stan Worthington, a former Indiana state trooper who staffed some of that state's first roadblocks, is quoted by the ABI: "I quickly realized that roadblocks are all about public relations and have very little to do with safety. In fact, roadblocks make it more likely that dangerously drunken drivers will not be caught. . . . Roadblocks just harass responsible drinkers who had a beer at a friend's house or a glass of wine with dinner at a restaurant. They look great on the evening news as a sign of what's being done to stop drunken driving, but in reality they are counterproductive."

Justice Stevens was again prescient when he wrote in 1990 that the real aim of roadblocks is to deter drinking by people who will never be stopped by them. He described sobriety checkpoints as "elaborate, and disquieting, publicity stunts. The possibility that anybody, no matter how innocent, may be stopped for police inspection is nothing if not attention getting."

Fifteen years later, these "publicity stunts" have become the centerpiece of our effort to reduce the toll of drunken driving—an effort that even the most ardent crusaders admit has stalled.

Critics such as the alcoholic beverage industry and the libertarian Cato Institute charge that MADD and other anti-DWI activists pursue checkpoints and lower BAC limits rather than focusing on hard-core drunk drivers because the real agenda is "neo-prohibition." Writes Cato commentator Radley Balko, "MADD deserves credit for raising awareness of the dangers of driving while intoxicated. It was almost certainly MADD's dogged efforts to spark public debate that effected the drop in fatalities since 1980. . . . [But] MADD is clearly wandering away from its original, admirable goal of preventing traffic fatalities caused by drunken drivers. Instead of declaring victory over drunken driving and downsizing its operation, MADD has sought new battles to justify its staffing and budget." MADD's annual budget, Balko says, is $45 million, $12 million of which goes to personnel costs. He goes on, "The main effort nowadays is to expand the definition of 'drunk' and to shift the focus of its battle from irresponsible drinkers to the 'environment of alcoholism.'"

Even MADD founder Candy Lightner has said the group has "become far more neo-prohibitionist than I had ever wanted or envisioned. . . . I didn't start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving."

Much of this neo-prohibition movement, according to critics, is funded by the Robert Wood Johnson Foundation, which has contributed more than $265 million to anti-alcohol organizations since 1997 (including $3.39 million to MADD from 1996 to 2001). Among the measures backed by the foundation are increasing alcohol taxes and banning Sunday liquor sales. Charles V. Pena of the American Beverage Licensees, a trade group, claims that the foundation's goal "is to reduce per capita alcohol consumption—a very different aim than reducing alcohol abuse or drunk driving."

That's why checkpoints are so appealing to neo-prohibitionists, liquor-industry defenders argue. "Drunk drivers can be spotted and arrested by patrol cars. Roadblocks have another purpose: to reinforce MADD's belief that there is no such thing as responsible drinking," charges the American Beverage Institute. "Roadblocks are intended to terrify casual drinkers—no matter how moderately, how responsibly, how legally or how safely they drink."

Also central to this anti-alcohol aim as it relates to drunk driving is pushing the legal BAC limit ever lower—despite the lack of evidence for the effectiveness of the move from .10 to .08. The ultimate goal seems to be "zero tolerance." As former MADD president Katherine Prescott has proclaimed, "There is no safe blood alcohol level, and for that reason responsible drinking means no drinking and driving." Similarly, in a fundraising letter, MADD President Wendy Hamilton wrote, "Forget the limits on BAC. It's just not acceptable to drink and drive. Period."

In this context, those ads with a growling Gov. Richardson take on a new meaning. The advertising message no longer focuses on drinking responsibly. Gov. Richardson doesn't urge New Mexicans to know when to say "no." Instead, it's "You Drink. You Drive. You Lose." Never mind that it's perfectly legal in New Mexico to have a glass of wine at a restaurant and then drive home—the implication is that your glass of merlot will land you in the slammer.

"The very name of the program is misleading," says the ABI's Doyle. "It is legal and socially acceptable in every state to drink responsibly before driving."

California's anti-DWI program, "None for the Road," similarly makes no distinction between driving after one drink and driving after nine or 10 drinks. South Carolina runs "Operation SOS," short for "Sober Or Slammer"—and yet it's shot from number 22 in 1994 in DWI fatal-crash rankings to second-worst in the country in 2002.

The ABI paints a dire picture of the consequences of neo-prohibitionism: "Rolling out a nationwide arsenal of random roadblocks would essentially prohibit alcohol consumption at many places where it is now a part of life. Imagine no beer at the ballpark, no wine with an anniversary dinner, and no champagne toasts at a wedding reception."

Nonsense, says Atkinson of the DWI Resource Center. "They want to protect their industry and sell as much of their product as they can, so they mislead the public," she says. "They seem to think that if they holler 'prohibition' the public can ignore our message. That's never been the stance with us or with MADD."

Ferrary of the Dona Ana County MADD chapter—who says he and his wife both drink occasionally—says, "It'd be foolish to say there are not people in our organization who'd like to see alcohol banned from the earth. It's hard to be critical, though, of people who've lost so much in their lives because of drunk drivers. For people like my wife and me, who very fortunately have not been victims, I don't see that prohibitionism as the mainstream of MADD. We tried prohibition years ago and it didn't work very well."

He believes that much of the perception that MADD is anti-alcohol stems from its increasing emphasis on educating underage drinkers about the dangers of their behavior. "We've focused so heavily on that, when you start to talk about 'getting rid of that stuff,' it can sound like prohibition," he says. The organization has also fought to exclude alcohol and alcohol sponsorship from family events, because of the wrong message that sends kids who might attend. "The alcohol companies are way better at marketing than we are at trying to stop it," Ferrary adds.

"The liquor industry would like you to think it's OK to have a couple of drinks and then drive," Atkinson says. "Studies show that impairment begins with the first drink, and that impairs your judgment so you're inclined to drink more. Why play with fire? I'd like to see zero tolerance behind the wheel."

In addition to tougher measures against drunk driving, the DWI Resource Center's public policy agenda includes support for legislation "Targeting Alcohol Consumption," including a local county option to impose a consumer tax on alcoholic beverages. The center's newsletter contains a two-page section on "Alcohol Research," with such headlines as: "Drinking Linked to Hearing Loss," "Alcohol May Increase Risk of Colon Cancer" and "Study Finds Alcohol As Damaging as Tobacco." But this research roundup skips findings such as the consensus among the scientific community that moderate alcohol consumption protects against heart disease, or the recent study touting the life-prolonging benefits of a "Mediterranean diet," including moderate drinking. Nothing about antioxidants in red wine or beer strengthening your bones, either.

If New Mexico switched the focus in its war against DWI back to the guilty, instead of scaring the innocent into tea-totaling, could we once again start making headway against this scourge on the highways? The legislation being pushed by Gov. Richardson this session at least points in the right direction:

  • Ignition interlocks for all convicted DWI offenders—Instead of saddling all New Mexicans with these expensive gizmos, this proposal concentrates on those proven to be a danger on the road. Studies have shown that ignition interlocks do deter drunk drivers. One program in Ohio found that first-time DWI offenders with the devices were only one-third as likely to re-offend as those with suspended licenses. In a Canadian study, 10 percent of DWI offenders with interlocks were rearrested in an alcohol-related driving violation, compared to 25 percent without interlocks.

The problem with interlocks, Atkinson points out, is that the need for them typically outstrips the jurisdiction and length of oversight on the offender. Among repeat offenders in fatal New Mexico crashes, half have not been arrested in four and a half years or more—much longer than the period when they would have court-ordered interlocks. And research also shows that the deterrence effect of interlocks pretty much vanishes the instant they are removed.

"Ignition interlocks do not reduce death and injury," Atkinson says. "They reduce re-arrest rates—that's it. They are a useful tool, but not a panacea."

  • Lower the blood alcohol level of presumed impairment from .08 to .06 for repeat DWI offenders—While alcoholic beverage interests might see this proposal as "neo-prohibitionism," it again focuses on those proven guilty rather than punishing all New Mexicans. In the first six years after Maine adopted a similar measure, dropping the BAC to .05 for convicted DWI offenders, the proportion of fatal car crashes involving such offenders dropped by 25 percent—while the figure in the rest of New England rose 46 percent.

Since the average BAC in DWI arrests is .16, however, critics have likened this idea to lowering the speed limit from 65 to 55 mph—in order to catch drivers going 100 mph.

  • Set up a toll-free number to report drunk drivers or someone who is providing alcohol to a minor—The National Commission Against Drunk Driving says, "While these programs are limited in number and have not yet been evaluated, reports suggest that this approach may be useful in removing chronic drunk drivers from the road."

The governor's recent push to cut DWI dismissal rates in Metropolitan Court likewise aims to insure that those who are actually caught for drunk driving are punished. When more than a quarter of the 7,000 DWI cases heard annually in Bernalillo County are dismissed for administrative foul-ups, it's hard to take seriously calls for more checkpoints that will mostly inconvenience sober drivers.

But when asked what he'd most like to see happen in the battle against DWI, MADD's Ferrary, for one, does not begin his list with more checkpoints. "I'd like to see a more realistic treatment of first offenders," he says instead. "There's a terrible recidivism rate. It's important to understand that so many people who come before the court—it's assumed they've never done this before, when often it's just that they've never been caught before. If we didn't just give them a slap on the wrist, maybe we could reduce the problem among those who don't get caught, to deter their behavior."

Other ideas that could help get the DWI battle back on track include:

  • Tougher DWI criminal penalties—The DWI Resource Center calls for making vehicular homicide a second-degree felony, changing a second DWI offense to a third-degree felony, and a 90-day vehicle immobilization for a second offense.
  • Fewer reduced sentences—According to the center, the average time actually served by a DWI offender is approximately half that sentenced by the judge, typically because of good behavior and prison overcrowding.
  • Alcohol monitors for convicted offenders—Made by companies such as Adobe Interlock in Las Cruces, these bracelets detect whether a person has been drinking. They are not currently used anywhere in New Mexico.
  • Automobile impounding—Las Cruces is moving ahead, says Ferrary, with a program similar to that implemented in Albuquerque to impound the vehicles of repeat DWI offenders when they're caught again. Dona Ana County has a similar ordinance, though it's been mired in administrative problems, he says. "Our pitch to local government was: You start taking away a few folks' cars and you will see deterrence. Family members and friends won't want to give them the keys if there's a risk of losing that car."
  • Increased roving patrols—An NHTSA study found that roving patrols catch nearly three times as many drunk drivers as checkpoints do. Most law-enforcement officers understandably prefer going after drunks to waiting for them to show up at roadblocks (where, as one Florida Highway Patrol spokesperson put it, "we're only going to get the dumb ones").
  • Intervention and treatment programs—As much as it might feel good to punish hard-core drunk drivers, actually changing their behavior may require more than mere legal sanctions. A review of 215 studies concluded that combining education, counseling and followup with traditional legal sanctions was more effective than legal action alone, reducing alcohol-related crashes by seven to nine percent. The DWI Resource Center has also tried bringing offenders together with victims in order to make them see the effects of their irresponsible behavior. Other research has shown that those closest to a drunk driver—spouse, friends, significant others—are best able to prevent driving after drinking, and that arming these people with intervention skills may be a useful approach.

"It's better for all concerned if we don't look at first offenders as just somebody who 'made a mistake.' That's almost enabling," says MADD's Ferrary. "We need something to make these people think that they need help. Punishment doesn't always do the trick. We need more resources put into treatment facilities, referral programs, voluntary ignition interlocks, to help people handle their drinking so it doesn't create a risk to everybody else."

The bottom line, though, is that none of these measures will probably make as big an impact in reducing alcohol-related crashes—at least in the short term—as sobriety checkpoints have to date. Yet the argument can be made that—besides their dubious constitutionality and the ethics of scaring the innocent rather than targeting the guilty—checkpoints have exhausted their effectiveness. Further efforts to lower legal BAC limits and "scare sober" social drinkers may not produce the desired results, as evidenced by the failure nationally of .08 limits to deliver on saving lives.

Some anti-DWI crusaders, with all the best intentions, will insist that we need more checkpoints. "They save lives," will be the inevitable argument, one that's difficult to resist. Checkpoint opponents will be painted as pawns of the liquor industry and defenders of the worst offenders in the ongoing slaughter on the nation's highways—when in fact it's the neo-prohibitionist focus on deterring social drinkers that turns the spotlight away from repeat offenders and actually arresting first offenders. Or worse, checkpoint opponents will be labeled as drunk drivers themselves: "Opponents of sobriety checkpoints tend to be those who drink and drive," according to one MADD statement, "and are concerned about being caught."

Checkpoints are good for us, advocates say, and that siren song is hard to resist. But perhaps we should first listen to Supreme Court Justice Louis Brandeis, who, in his dissent in Olmstead v. United States, warned, "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachments by men of zeal, well-meaning but without understanding."

David A. Fryxell is editor of Desert Exposure.

Sobering Statistics

How many Americans are killed every year by drunken drivers? While even one death would obviously be one too many, overstating the problem can lead to solutions that don't fit the facts. Consider the figure of 25,000 roadway deaths that Chief Justice William Rehnquist relied on in the 1990 Supreme Court case that cleared the way for sobriety checkpoints like those in New Mexico. Rehnquist ruled that such an awful death toll was adequate reason to bypass the Fourth Amendment's protection against unreasonable search and seizure.

Like current counts, that figure included any automotive fatality in which alcohol was "involved" in any manner. If a sober motorist kills a drunken pedestrian who stepped out in front of the car, that would count. The statistic can even include fatalities where there's no evidence of alcohol but the circumstances resemble those of drunk-driving crashes, such as a lone motorist running off the road in the wee hours of the morning.
The real number of innocent victims of drink drivers nationwide, while still too high, is apparently far fewer than the statistics cited by MADD or the NHTSA. According to a 2002 Los Angeles Times analysis, of the then-17,448 "alcohol-related" traffic fatalities for the previous year, about 5,000 actually involved a drunk driver taking the life of a sober driver, pedestrian or passenger.

Who's Driving Drunk?

A snapshot of the numbers for counties in Southwest New Mexico reveals the DWI problem is heavily one of repeat offenders and drivers at double the legal blood alcohol level (BAC), not so-called "social drinkers." (Source: DWI Resource Center)

Mean arrest
crash deaths,
% of all
crash deaths 1998-2002
DWI-arrested drivers with a prior DWI arrest* 2001-2003

% of drivers arrested for DWI re-arrested within 3 years
DWI arrests 2003
DWI conviction rate
Dona Ana

* at least one prior arrest since since July 1984

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