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State Recommendations Report 12/82 SYNOPSIS OF THE FINAL REPORT OF THE KANSAS GOVERNOR'S COMMITTEE ON DRINKING AND DRIVING Backgound The tragic consequences of drunk driving have been identified by Governor John Carlin as a major problem in Kansas. In response to this concern, in his 1982 State of the State Address, Governor Carlin committed Kansas to the implementation of a plan to reduce the number of alcohol-related traffic offenses. On March 9, 1982 the Governor's Committee on Drinking and Driving was established to study the issue and subsequently make recommendations to the Governor for use in future policy formulation. After reviewing the literature and conducting eleven public nearings statewide, the Committee delivered its final report, containing the package of recommendations, to Governor Carlin on December 13, 1982. Reducing the number of alcohol-related traffic offenses entails changing the collective social attitude ("norm") that accepts the practice of drinking and driving, as well as toughening the law. The Committee's recommendations are based on the three major requirements for effective deterrence of drunk driving: 1) a high level of public awareness about the issue; 2) the percept i on that those who dri nk and dri ve wi 11 be apprehended; and 3) the perception that those who are apprehended will suffer the consequences. It is suggested that the recommendat ions be implemented as a comprehens i ve plan, administered by a Drinking and Driving Coordinating Board comprised of re 1 evant governmental agenci es and pri vate sector ent it i es. Although there are no specific recommendations regarding funding for the State and local governments to implement the plan, the need to explore various possibilities is emphasized. One potential source of funding for the state is the federal government, due to the passage of House Bill 6170 (amended) which was signed by President Reagan on October 5, 1982. The intent of this law is to encourage the estab 1 i shment of effect i ve a 1 coho 1 traffi c safety programs by states; seed grants will be awarded to those states which adopt and implement programs meeting the criteri a spec if i ed. The Committee took these criteri a into consideration as the recommendations were developed. The recommendations of the Committee are categorized as follows: Prevention - Education - Public Awareness; Law Enforcement; Adjudication; the Legal Drinking Age; and Senate Bill 699. Review of the Recommendations by Category A. Prevention - Education - Public Awareness: The major focus of attention in both oral and written testimony presented to the Governor's Committee on Drinking and Driving was prevention through public awareness. One-time campaigns will not work. Media programs and other effective methods of informing and educating the public must be provided on a cont i nua 1 bas is in order to persuade the dri vi ng pub'l i c to reduce al coho 1 consumption before driving. This list comprises the specific recommendations for prevention of drinking and driving, with the initial two of primary importance: Page 1 1. An on-going public information effort to inform and educate the public about the drinking and driving effort should be implemented. A statewi de program of long term education to prevent a 1 coho 1 and other drug abuse, specifically focused on traffic safety, should be mandated as a required part of the curriculum in kindergarten through 12th grade. The program would emphasize scientific information, self-image enhancement, and life skills training. More generic education should be provided at the lower grade levels, with traffic safety information emphasized in junior high and high school. 2. 3. Curriculum content relative to Alcohol Traffic Safety for private drivers' education pupils/schools should be mandated. 4. Alcohol and drug information and education should be provided for college students. 5. Comprehensive coverage of alcohol/drugs and driving should be included in the Kansas Driver's Handbook, with provisions for failure of the portion of the test covering that material to result in withholding of the driver's license until an acceptable score is achieved. 6. Required alcohol and other drug education and training should be provided by the state for all criminal justice personnel who work with DUI offenders. The Committee recognizes that it is more cost-effective to prevent the problem than to pay for the damage caused to persons and property by dri nk i ng and driving. B. Law Enforcement: The public's perception of suffering the consequences, and to a lesser extent the perception of apprehension, are inherently tied to law enforcement practices. The m~ority of recommendations related to law enforcement constitute a revised offender code which extends the amount of discretion that criminal justice personnel can exercise. The chart attached to the end of this synopsis presents the suggested changes in a format which makes their interrelationships apparent, and includes some recommendations for changes in Senate Bill 699. The Committee makes these proposals regarding law enforcement: 1. A new offense of Driving While Impaired (DWI) should be added. Driving While Impaired would be a lesser offense than Drilving Under the Influence, applying to persons whose blood alcohol content (b.a.c.) was .05% or above, but less than .10%. Current;¡y reckless driving is the charge that would be applied in such cases, although it is not inherently an alcohol-related offense. The Committee supports the option of considering all alcohol-related offenses in determining the penalties for a Driving While Impaired or Driving Under the Influence conviction. (The designation OWl throughout the rest of this synopsis refers to Driving While Impaired.) 2. A fourth alcohol-related offense in a five (5) year period should constitute a Habitual Violators category, which would be a Class E Felony. Page 2 3. There should be a minimum of ninety (90) day license suspension for the first alcohol related offense, and a minimum of one (1) year suspension for a second offense. 4. The blood alcohol concentrations for Driving While Impaired and Driving Under the Influence should constitute Per Se ev'idence of an alcohol-related offense. The Per Se law raises the legal significance given to standards for b.a.c. from prima facie evidence of being affected by drinking alcohol to conclusive evidence of illegal alcohol consumption when coupled with driving. Consequently, the need for some of the more subjective methods of estab 1 i shi ng the offenses of DWI and DUI (e.g., behavioral tests, slurred speech, etc.) is eliminated, thus increasing the probability of conviction. 5. An alcohol-related offense with property damage and/or personal injury should be included in the law as a separate offense, equivalent to either a Class A Misdemeanor or Class E Felony, contingent upon the mitigating circumstances. In addition, the alternative penalty of Restitution could be utilized. 6. An alcohol-related offense with fatality(ies) should be incorporated in the Revised Offender Code with a Class D Felony as the corresponding classification. 7 . Driving with a license that has been suspended due to an alcohol- related offense should receive the same classification as the current Driving on a Suspended license (Class B Misdemeaner), in conjunction with the additional deterrent of Automafìcally Impounding the vehicle. Anyone who refuses to have a breath analysi s when askea to do so by the authorities should automatically lose his or her license for a predetermined amount of time, such as ninety (90) days for a first offense and one (1) year for a second offense. The benef i t of an administrative hearing would be impermissable. A proCi~dure whereby arresting officers would confiscate licenses and send them to the Department of Motor Vehicles, with that Department returning them to operators at the appropriate times, is suggested. 8. 9. Written license Persons license issued. consent for a breath test shoul d be stated on the dri ver I s and signed as a part of the agreement to hold the 1 i cense. refusing to sign their name to that clause on their driver's would be denied the privilege to drive; no liŒnse would be 10. Pre 1 i mi nary Bre ath Test i ng Procedures shou 1 d be ut i 1 i zed as a too 1 for determining probable cause in what appears to be an alcohol- related offense. A preliminary breath test is an alternative or addition to field sobriety tests for making arrest determinations. The results of a preliminary breath test would not be admissable as evidence, but the consequences of refusing to take a preliminary test would be the same as for actual tests, and the fact that a person refused to take the test would be admissable as evidence. 11. Sanctions corresponding to those for refusal to take breath-tests for alcohol consumption should be instituted for refusal to take tests for other drug use, once such tests are developed and utilized. Page 3 C. Furthermore, after the tests are developed and utilized, driving under the influence of (or impaired by) other drugs should be included in the Offender Code, consistent with the alcohol provisions. 12. The Records Keeping System should be improved so that it is functional as a systematic mechanism for tracking prior offenses, and as a permanent log of all alcohol-related offenses. Wherever the records are stored, an optimal system will require that municipal courts report appropri ate i nformat i on and 1 aw enforcement personne 1 have acceptable uniform reporting procedures. A national system should be developed. 13. Roadblocks should be utilized specifically for the purpose of finding drinking drivers. 14. The use of camera equipment to film persons during their field tests is encouraged. Filming could be especially useful in cases where drugs other than alcohol have been used, given that the breath test does not work for other drugs and it is necessary to know what drug to test for if blood tests are to be valuable. 15. Obtaining equipment for the testing and laboratory analysis of specimens in DUI (or DWI) cases, to be uti 1 i zed by 1 aw enforcement personnel, is encouraged. Adjudication: The recommendations regarding the sentencing process include the concept of a dram shop law, which would actually present ramifications for both law enforcement and adjudication; the courts would probably be more directly affected by it due to the civil liabilities that are inherent in the concept. Adjudication might be expedited by taking these measures: 1. A Dram Shop Law should be considered as a means to enhance the comprehens i ve plan to deter drunk dri vi ng. The Dram Shop Law is a concept providing for third party liability, wherein establishment owners and potentially others (such as parents or party hosts) could be held liable for personal and/or property damages for serving alcoholic beverage(s) to an intoxicated person who subsequently caused such damages, wi th hi s/her i ntox i cat i on a contri but i ng factor. The laws Kansas now has prohibit the sale of liquor to intoxicated persons and minors, but civil liability is not explicit in those laws. A training/education program for beverage sales personnel might be implemented in conjuction with a Dram Shop Law. 2. Judges from districts or areas where caseloads and dockets are lighter should be utilized to help clear up heavy dockets in districts other than their own; this is essentially "borrowing" judges. (Additional) night-courts should be used to alleviate lengthy court dockets. 3. 4. A judicial guidelines manual for driving issues should be developed. courts all dealing with drunk Page 4 D. 5. Community Service, as an option in the sentencing process, should become more widespread. 6. Alternative detention facilities should be utilized for QUI (or DWI) offenders, in addition to cooperative efforts among various localities in the housing and incarcertion of such offenders. Options include work-release centers, halfway houses, and juvenile detention and holding centers. 7 . Centralized minimum security (or non-security) operated by either the state or local governments. DUI (or DWI) laws in Kansas should apply to juveniles consistent with their application to adults. units should be 8. 9. Juveniles who are incarcerated for traffic offenses should be completely separated from adult offenders. The standards for separation should achieve complete isolation from adult offenders: not just physical separation with bars between cell blocks, but sight and sound separation as well. 10. A uniform definition of Indigent or Indigency should be developed. It is reasonable to assume that the criteria for determining Indigency in many criminal cases would not be appropriate for DUI cases. The definition and application procedure would be a logical part of the recommended Judicial Guidelines Manual. Legal Drinking Age: Determining a recommendation in regard to the minimum legal age for purchasing alcoholic beverages was the most difficult part of the Committee's task. The drinking age is a controversial and emotional issue, with no simple solutions. From the Committee's perspective, the question of ~~hether the legal drinking age should be changed is still unanswered. The legal drinking age was not a major topic of concern in the testimony presented at the public hearings. Based on what was stated in the testimony, it is impossible to reach a consensus about what should be done. Furthermore, the literature on the subject is confusing; at best it can legitimately be purported that the evidence is suggestive, but not conclusive, that raising the drinking age will reduce the statistics for alcohol-related traffic accidents. Other possible causes for changes in the statistics after raising the dri nk i ng age i nc 1 ude increased pub 1 i c awareness and s tri cter enforcement of alcoholic beverage control laws. The Committee believes that a more thorough analysis of the impact of raising the legal minimum drinking age is in order, and recommends the following: 1. A Special Sub-Committee should be assigned the task of further studying the single issue of the legal drinking age. The Committee encourages the establishment of a special legislative committee or blue ribbon committee to investigate the data relative to the issue and consider the ramifications of instituting such a change in Page 5 Kansas. In its analysis, this committee would need to address the fact that the age to buy 3.2% beer is 18 in Kansas, while the age to purchase all other alcoholic beverages is 21. E. Senate Bill 699: There are problem areas with Senate Bill 699 which the Committee reviewed but could not resolve because they involve constitutional issues. Sp~cific types of corrective action are suggested to "clean up" certain other parts/problems of SB 699 on which the Committee is comfortable making comments. The Committee has the following comments about SB 699: 1. The prohibition of plea-bargaining should be retained as an integral part of an effective deterrence model. Plea-bargaining for reasons other then to avoid penalties should also be disallowed. File- bargaining for the purposes of curtailing the prerequisites of the DUI law is counter-productive to the deterrence needed, but it is not feasible to prohibit all file-bargaining in order to el"iminate this problem. 2. Unless a Supreme Court ruling dictates otherwise, a defendent's refusal to submit to a chemical breath test should remain admissable as evidence. 3. The law should provide enforcement ability in the case of persons who are intoxicated on a drug or drugs other than alcohol. 4. The language of the law should be revised to provide consistency in the testing possibilities for all drugs. 5. The inclusion of diversion as a sentencing option for initial DUI offenses should be retained, and applied to Driving While Impaired as well. 6. The 1 anguage of the 1 aw shoul d be revi sed so that out of state offenses/records can be utilized in the sentencing process. 7 . The inherent impracticalities of indigency requirements (especially for municipal courts) should be considered if a uniform definition of indigency for DUI offenses is devised. 8. The policy that the arresting officer is not required to be present for the administrative hearing (before the Department of Revenue-Driver's License Division) should not be changed. Problems with the use of Community Service should be alleviated; perhaps recent Attorney General's opinions will help. 9. Conclusion: The Governor's Committee on Drinking and Driving encourages the implementation of the recommendations contained in the final report. Such action would reduce the impact of what the Commi ttee vi ews as the greatest health and safety problem in our state. Page 6 REVISED OFFENDER CODE DRIVING WHILE IMPAIRED Misdemeanor (Greater than or equal to .05% and less than .10%) 1st Offense = Any combination of - fine ($50.00 - $200.00), Community Service, d.l. restriction/suspension, ADIS, diversion. 2nd Offense = Any combination of - fine ($50.00 - $200.00), d.l. suspension/revocation, ADIS, Treatment (No diversion) 3rd Offense = 48 hours jail, ($200.00 - $500.00) fine, automatic d.l. suspension/revocation {Per Se Standard) 1st Offense DRIVING UNDER THE INFLUENCE (0.10% or greater B.A.C.) Not less than 48 hours or more than 6 months in jailor 100 hours of Public Service, fine of $200 to $500, restriction of driver's license, completion of ADSAP program and treatment program if ordered (diversion). Not less than gO days nor more than $1,000, treatment program completed less than 5 days, and suspension of (or completion of treatment). Not less than gO days nor more than 1 yr. in jail, fine $1,000 to $2,500, and revocation of driver's license for not less than 1 yr. Habitual Violator = Class E Felony_Jwithin 5 years) 90 day automatic suspension consistent with Fed. Regs. 2nd Offense 1 yr. in jail, fine $500 to sentence reduced, but not driver's license for 1 yr 1 year automatic suspension consistent with Fed Regs. (without restoration). 3rd Offense = (No changes) \J ~ ~ ro 4th Offense = ~ DRIVING WITH A B.A.C. OF 0.10% OR ABOVE (Per Se Law) 1st Offense through 4th Offense = Same as D.U.I. ALCOHOL RELATED OFFENSE/with property damage - (Restitution) /with personal injury Could be Driving While Impaired or Driving Under the Influence. Offender could be convicted/sentenced to either misdemeanor (Class A) or felony (Class E) depending upon mitigating circumstances (left to pro~eç_t¿1.~Y"s, judge's discretion). No Probation or Diversion. ALCOHOL RELATED OFFENSE/with fatality(ies) Class D Felony No Probation/Diversion DRIVING WHILE ON A SUSPENDED LICENSE/FOR AN ALCOHOL RELATED OFFENSE Class B Misdemeanor - Tmnt"\lInrlment - rt"\neietent .dth "en Rene ""...~-"-,,,-,,- -~"~,~--"-",,,,,--.,,-,,~. (Could be used as an additional charge or an individual, separate charge, but not for use as afjJ,flJJlea-bargaining item. This revised Offender Code does not allow for either Plea-Bargaining or Probation/Suspended Sentences (unti 1 the minimum sentence has been satisfied), in any of the categories. It does allow for diversion in certain categories. Chart 20A The Kansas Governor's Committee on Drinking and Driving Members Chairman: Judge Herb Rohleder Administrative Judge 20th Judicial District Great Bend, Kansas Committee Members: Dr. Lorne A. Phillips, Commissioner Alcohol and Drug Abuse Services Social and Rehabilitation Services Topeka, Kansas Reverend Richard Taylor, President Kansans For Life At Its Best Topeka, Kansas Dr. David L. Trudeau, Medical Director St. Joseph's Medical Center Alcoholism Treatment Unit Wichita, Kansas Colonel David Hornbaker, Superintendent Kansas Highway Patrol Topeka, Kansas Mr. Charles Baxter, General Manager Farm Bureau Mutual Insurance Companies Manhattan, Kansas Mr. Bruce Beale, Director Douglas County Counseling and Resource Center Kansas Community Alcohol Safety Action Project Lawrence, Kansas For further information, write to the Governor's Committee on Drinking and Driving, P.O. Box 4052, Topeka, Kansas, 66604; or call the Alcohol and Drug Abuse Services in the Kansas Department of Social and Rehabilitation Services, (913) 296-3925. JK:ss Page 8