November 10, 2014

In Wisconsin statehouse, laws on drunken driving seen as tough enough

Legislators have rejected efforts to hike penalties, even for repeat offenders

Quinn Felly of Apex Property Management sweeps broken glass from the sidewalk in front of an apartment building on Williamson Street in Madison, Wis. on Wednesday, June 6, 2012.  A car crash took off the front of the building in the middle of the night.  Felly said a woman was sleeping behind the bookcase at the center. Christopher Brunetto of Fairfield, Conn., was found guilty of a fourth drunken driving offense and fleeing the scene.

Craig Schreiner/Wisconsin State Journal

Quinn Felly of Apex Property Management sweeps broken glass from the sidewalk in front of an apartment building on Williamson Street in Madison, Wis. on Wednesday, June 6, 2012. A car crash took off the front of the building in the middle of the night. Felly said a woman was sleeping behind the bookcase at the center. Christopher Brunetto of Fairfield, Conn., was found guilty of a fourth drunken driving offense and fleeing the scene.

Under the Influence Logo

Despite arrests, fines, convictions and prison time, many Wisconsin drivers continue to drink and drive. The Gannett Wisconsin Media Investigative Team in cooperation with the Wisconsin Center for Investigative Journalism in Madison is documenting the pervasive problem of repeat drunken driving that plagues this state in an eight-day series, Under the Influence.

Read the series here.

State Sen. Tim Carpenter, D-Milwaukee, knows what a difference a law can make. In 1996 his alcoholic father was cited for operating under the influence, after being involved in an automobile crash.

To get an occupational license, Kenneth Carpenter, 70, had to appear in court. To keep his son’s support, he had to quit drinking. He did both.

“This completely turned around his life,” said Carpenter of his authority-respecting father’s need to stand before a judge. “I wish it would have happened earlier.”

Kenneth Carpenter died in 2010, after 14 years of sobriety. In the 2013-14 legislative session, Tim Carpenter co-sponsored a number of bills, authored by Republicans, to toughen Wisconsin’s laws regarding drunken driving.

These included a bill to make all persons cited with first-offense operating while intoxicated, or OWI, appear in court, which some can now avoid. The bill drew unanimous support from committees in both legislative houses and passed the Assembly on a voice vote.

And then it died — along with every bill in the package and virtually every other proposal in the session to toughen Wisconsin’s drunken driving laws.

Carpenter, on the cusp of his fourth decade as a state lawmaker, is dismayed. “People were overwhelmingly in favor of this legislation,” he said of the package. “We blew a golden opportunity.”

A review shows that Rep. Jim Ott, R-Mequon, and state Sen. Alberta Darling, R-River Hills, the bills’ authors, received only about a half-dozen critical responses (the proposed bills, one person wrote, “are way too strict and are killing the tavern business in Wisconsin”) and more than 90 positive ones.

State Sen. Tim Carpenter, D-Milwaukee, is dismayed by the Legislature’s failure to pass GOP-backed bills to toughen state penalties for drunken driving: “We blew a golden opportunity.”

Wisconsin Legislature

State Sen. Tim Carpenter, D-Milwaukee, is dismayed by the Legislature’s failure to pass GOP-backed bills to toughen state penalties for drunken driving: “We blew a golden opportunity.”

“It is great to see that you are working on tougher drunk driving laws,” one person emailed. “I’m embarrassed to live in a state that allows these repeat offenders to drive our streets and highways,” wrote another. “I want to offer my help and support,” said a man paralyzed by a drunken driver who also killed his mother, father and little brother.

How does Republican backing in a GOP-controlled state, overwhelming public support and virtually no opposition add up to legislative defeat?

Sidebar

Bills found diverse ways to die

More than a dozen bills aimed at addressing drunken driving in Wisconsin were introduced in the 2013-14 legislative session. Almost all failed to pass.

Cost was a key concern, but Senate Majority Leader Scott Fitzgerald, R-Juneau, the person most responsible for blocking these bills, cites another factor.

“There is significant disagreement over whether simply hiking penalties will solve the problem,” Fitzgerald wrote in an email. Despite past moves to do so, “we still experience an alarming rate of recidivism….  Clearly traditional penalties have not provided a significant deterrent for those with serious substance abuse problems, and I think this is where our focus needs to be as we search for a long-term solution.”

Fatalities decline, problem persists

Wisconsin has long experienced a dismal level of carnage due to drunken driving. A national ranking based on 2012 numbers ranked it 16th worst among states in its percentage of fatal crashes that were OWI-related.

In 2013, according to the state Department of Transportation, there were 4,954 alcohol-related crashes in Wisconsin, leading to 185 deaths and 2,660 injuries. Over the past five years, the state’s annual average is 218 deaths. In the previous five-year period, 2004-2008, the average topped 300.

“We’ve had one of the most dramatic reductions of fatalities since they’ve been keeping data,” said Scott Stenger, a contract lobbyist for the Tavern League of Wisconsin. He cited SafeRide and designated driver programs, saying more people “are starting to plan ahead” to avoid driving while impaired.

Fitzgerald also heralds this decline, using the same numbers as those included on a Tavern League fact sheet. He said these prove “our reforms are at least moving Wisconsin’s OWI policies in the right direction.”

But Wisconsin native Frank Harris, director of state government affairs for the advocacy group Mothers Against Drunk Driving, sees no reason to celebrate. As he put it, “There’s still 200 people dying a year in a 100 percent preventable occurrence.”

Wisconsin native Frank Harris of the national group Mothers Against Drunk Driving says the recent decline in deaths and injuries caused by drunken driving is not enough: “There’s still 200 people dying a year in a 100 percent preventable occurrence.”

Mothers Against Drunk Driving

Wisconsin native Frank Harris of the national group Mothers Against Drunk Driving says the recent decline in deaths and injuries caused by drunken driving is not enough: “There’s still 200 people dying a year in a 100 percent preventable occurrence.”

MADD, with Harris as its sole registered Wisconsin lobbyist, backed a six-bill package introduced early in the 2013-14 session by Darling and Ott. Besides mandating that all first-time offenders appear in court, the bills would have:

* Made first-offense drunken driving a crime for persons with a blood alcohol concentration (BAC) of .15 or higher, roughly twice the legal limit.

* Hiked the penalties for repeat offenders.

* Created mandatory minimum sentences for drunken drivers who cause injuries or deaths.

* Allowed judges to confiscate autos used in third or subsequent OWIs.

In backing these bills, Ott noted that it takes a fourth offense within five years of a third to prompt a felony charge. He sought to lower the felony threshold to a third offense, saying “it’s obvious that our current laws do not sufficiently deter this bad and dangerous behavior.”

Darling, in turn, said state laws allow too many “do-overs.”

Rep. Jim Ott in his Capitol office, April 8, 2009. State Rep. Jim Ott, R-Mequon, disputes estimates that costs will skyrocket if tougher drunken driving laws are passed, saying these assume that conviction rates will stay the same when “the whole purpose in pushing through OWI legislation was to produce a deterrent effect.”

Mike DeVries / The Capital Times

Rep. Jim Ott, R-Mequon, in his Capitol office, April 8, 2009. Ott disputes estimates that costs will skyrocket if tougher drunken driving laws are passed, saying these assume that conviction rates will stay the same when “the whole purpose in pushing through OWI legislation was to produce a deterrent effect.”

Many initial concerns focused on cost. The state Department of Corrections, in a fiscal note, estimated that hiking the penalties for third- and subsequent offenders would set the state back $158 million to $226 million per year plus $236 million for new prison space, “excluding land acquisition costs.”

Harris called these estimates overblown, saying they assume incarceration would be “a uniform consequence” of tougher laws. Ott is also critical, noting in an interview that the DOC relied on past conviction rates when “the whole purpose in pushing through OWI legislation was to produce a deterrent effect.”

Ott, in his testimony, stressed the high cost of drunken driving. Besides those who have died, he cited victims who have had “their automobiles totaled, lost substantial time from work, spent time in the hospital, and still suffer from pain and other problems related to their injuries.”

And Carpenter, who considers the cost estimates “a bogeyman to scare people off,” pointed out that the bill to mandate court appearances for all offenders would have had a nominal fiscal impact and still did not pass.

Rep. Samantha Kerkman, R-Salem, who supported the court-appearance bill “to bring seriousness to the fact that they were caught,” is disappointed by the Senate’s failure to pass it. She hopes the Legislature will take it up again next session.

Making matters worse

In all, the Legislature’s 2013-14 session saw the introduction of more than a dozen bills to toughen state OWI laws. The bills drew almost no opposition from lobby groups or at hearings, aside from the Wisconsin Counties Association, which pegged them as “unfunded mandates on county taxpayers.”

State Sen. Tim Carpenter, D-Milwaukee, is dismayed by the Legislature’s failure to pass GOP-backed bills to toughen state penalties for drunken driving: “We blew a golden opportunity.”

Wisconsin Legislature

State Sen. Tim Carpenter says the sole penalty-toughening bill that passed the Legislature “made (matters) worse” because a drafting error eliminated existing law allowing charges for simple injury crashes. “Not only didn’t we pass stiffer penalties, the bill we did pass mucked things up,” he said.

Several bills passed the Assembly in amended form, including one to make all fourth-offense drunken driving a felony. But, with Fitzgerald as gatekeeper, only one penalty-toughening bill received a Senate vote. And that bill, introduced after the initial package by Darling and Ott, had unintended consequences.

The bill, which passed, created mandatory minimum penalties for drivers who cause substantial injury or death in their seventh or subsequent OWI offense. But a drafting error axed existing law allowing charges for simple injury crashes.

“It made (matters) worse,” Carpenter said. “Not only didn’t we pass stiffer penalties, the bill we did pass mucked things up.” He anticipates the need for corrective legislation next session.

Other failed GOP-sponsored bills would have prevented those who lose driving privileges due to OWI offenses from buying or leasing cars and barred those required to install sobriety-checking ignition interlock devices on their own cars from driving any vehicle without it.

Also going down in flames were Democrat-sponsored bills to require interlock devices for all OWI offenses, impound the vehicle registration plates of repeat offenders, and make first-offense drunken driving a crime in Wisconsin, as it is in every other state.

Bradley Erickson was convicted for homicide by drunken driving for a crash that killed three people on a highway near Madison. Erickson was sentenced to 13 years in prison and 15 years of extended supervision. His lawyer attributed the Iraq veteran's decision to get behind the wheel drunk to post-traumatic stress disorder.

Ed Treleven / Wisconsin State Journal

Bradley Erickson was convicted for homicide by drunken driving for a crash that killed three people on a highway near Madison. Erickson was sentenced to 13 years in prison and 15 years of extended supervision. His lawyer attributed the Iraq veteran\’s decision to get behind the wheel drunk to post-traumatic stress disorder.

Rep. Josh Zepnick, D-Milwaukee, whose sister was killed by a repeat-offense drunken driver in 1990, introduced the impoundment bill and calls expanding the use of ignition interlock devices “a no-brainer, ‘cause you put the cost on the offender and it seems to change people’s behavior.”

But Zepnick declined to co-sponsor bills to impose a mandatory minimum and is ambivalent about making first-offense OWI a crime, given that “over 70 percent of first-time offenders do not repeat.” (On the other hand, three-quarters of the state’s OWI-related crashes causing deaths or serious injuries involve offenders with no prior convictions.)

In many cases, Zepnick said, the problem is not that the state’s laws lack teeth but that judges are disinclined to bite. He rattled off examples of drunken drivers who killed others and got off with light sentences, such as 60 days with work release.

“I know people in Milwaukee who steal from a gas station or sell a couple bags of pot who get more time than that,” he said.

Getting to the root

Carpenter believes all of the GOP-backed bills that passed the Assembly would have easily passed the Senate, had Fitzgerald heeded his appeals to bring them to a vote. He suspects Fitzgerald acted to protect a few lawmakers with election-related worries about making enemies or losing friends, who felt “I can’t in any way get the Tavern League mad at me.”

Sidebar

State stung by task force resignations

In June, four members of a state task force created to combat drunken driving resigned, saying they would no longer lend credibility to a “hollow process” in which the alcohol industry had too much sway.

State Sen. Scott Fitzgerald, R-Juneau, defends the Legislature’s reluctance to pass tougher laws: “There is significant disagreement over whether simply hiking penalties will solve the problem.”

Mike DeVries / The Capital Times

State Sen. Scott Fitzgerald, R-Juneau, defends the Legislature’s reluctance to pass tougher laws: “There is significant disagreement over whether simply hiking penalties will solve the problem.”

But Fitzgerald, while hailing Wisconsin’s “vibrant” beer and alcohol service industries, said the Tavern League’s influence was not the reason for the bills’ failure. The Senate moved instead “to combat drunk driving at the root of the problem by targeting substance abuse with a program that is proven effective.”

A bill passed unanimously late in the session hiked state spending on court-based substance abuse treatment and diversion programs by $3 million over two years. Fitzgerald said this approach has helped curb recidivism “while allowing offenders to get their addiction issues in check and go on to have productive lives.”

The Tavern League, which has backed tougher OWI penalties, also urges addressing drunken driving as a problem of addiction. “You can’t just say, throw the person in jail and two years from now everything will be fine,” Stenger said.

Since January 2013, when the two-year legislative session began, the Tavern League has reported spending $217,703 on lobbying; MillerCoors, another prominent state lobby group, spent $204,472.

During this period, the two groups have directed more than $80,000 in campaign contributions to state candidates, including $9,750 to Fitzgerald.

‘Let’s focus on things that work’

Neither the Tavern League nor MillerCoors took a position on the bills sponsored by Darling and Ott. “There just wasn’t a compelling reason one way or the other to lobby for or against them,” Stenger said.

The Tavern League did oppose a Democratic bill to mandate ignition interlock devices for all OWI offenses. Currently the devices are required only for second and subsequent offenses, first offenses with a BAC of .15 or more, and cases in which the driver causes injury or refuses a sobriety test.

Stenger said mandating these devices “isn’t working under current law,” since some drivers ordered to use them continue to reoffend. “Let’s focus on things that work.”

But Harris, of Mothers Against Drunk Driving, told lawmakers that “states with well-implemented interlock laws have seen significant reductions in drunk driving fatalities.” He cited research showing that 50 to 75 percent of convicted drunken drivers not required to use these devices continue to drive despite suspensions or revocation.

State data crunched by MADD shows that 2,122 of the 26,632 people convicted of OWI in

Edward Patrisio of Madison appears before a court commissioner in Madison in 2011. Patrisio, who is currently appealing his case, was convicted of one count of homicide by intoxicated use of a vehicle in 2012, for a four-vehicle crash in Madison. That same year, more than 26,000 drivers were convicted of a drunken driving offense.

M.P. King / Wisconsin State Journal

Edward Patrisio of Madison appears before a court commissioner in Madison in 2011. Patrisio, who is currently appealing his case, was convicted of one count of homicide by intoxicated use of a vehicle in 2012, for a four-vehicle crash in Madison. That same year, more than 26,000 drivers were convicted of a drunken driving offense.

2012 were rearrested within six months for driving illegally.

Currently, 24 states either require or highly incentivize the use of interlock devices for all persons convicted of OWI. Increasing this number is MADD’s No. 1 legislative priority.

MADD also supports sobriety checkpoints, in which police stop drivers looking for signs of impairment. These checkpoints, which Harris calls “as much of an inconvenience to a sober driver as a red light,” are now used in 38 states.

Carpenter and Zepnick hope to introduce a bill next session to allow but not require municipalities to create these. They expect opposition from within both parties.

“People are afraid it’s going to be unfair or inequitable — targeting certain people or locations,” Zepnick said.

Fitzgerald expects continued discussion of ways to combat the state’s drunken driving problem, including an examination of current policies. One focus will be “gauging how successful our new treatment programs prove to be in comparison to other existing penalties.”

Ott supports the expanded use of treatment and diversion programs, saying “I recognize this is not just a matter of passing tougher laws.” But he thinks the laws do need to be tougher, and to that end “I plan on bringing some of these (bills) back next session, maybe do a few tweaks.”

Harris also urges a range of strategies to combat what everyone agrees is a difficult problem: “Just throwing the book at offenders, we’ve tried that, it doesn’t work.”

Drunken driving bills in the Wisconsin Legislature, 2013-2014 session