Building on DUI law

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In a legal proceeding conducted entirely by phone, the sheriff's deputy described how he'd pulled over the Blair, Neb., man for speeding and smelled alcohol.

The driver then blew more than double the legal limit in a breath test.

Defense attorney Randy Paragas didn't even bother questioning the officer about things like probable cause for the stop. In these administrative license revocation hearings, only two things matter: Was the accused driving? Did he fail an alcohol test?

The whole thing lasted 10 minutes, and days later, the State of Nebraska made it official, yanking the driver's license for 90 days.

Safety advocates say there's no doubt administrative license revocation has been a critical weapon in the battle against deadly drunken driving, making DUI punishment much surer and swifter. That's why many are now alarmed to see the law facing possible repeal in the Nebraska Legislature.

As state lawmakers ponder a crackdown on drinking and driving, one of the most important debates may be whether or not to keep a system that for almost two decades has been central to the state's strategy. It comes down to disagreements over what's the best approach to quickly get and keep drunken drivers off the road.

A bill pushed by the speaker of the Legislature and Nebraska Attorney General Jon Bruning would replace administrative license revocation with a new DUI procedure based on ignition interlocks — devices that prevent a vehicle from being started if a driver has drunk too much.

Backers of the bill say administrative license revocation has become a costly, duplicative process in which defense attorneys play games to stall suspensions, and police officers log thousands of overtime hours involved in them. Many drivers whose licenses are revoked just drive anyway.

“I think it's time to reform ALR — and by ‘reform' I mean get rid of it,'' said Hall County Attorney Mark Young.

Supporters of the procedure say the bill would substitute an unproven strategy for one already shown to speed punishments, boost conviction rates, deter other drinkers and save lives.

“This represents an unprecedented risk in terms of public safety,'' said Marty Conboy, Omaha city prosecutor. “It would be a huge step backwards.''

However it appears there may be ways short of gutting the administrative license revocation system to achieve the goals of increased interlock use and fewer costly hearings. In interviews with national safety experts, program administrators in Nebraska and other states, and attorneys familiar with the process, The World-Herald identified ways to streamline the procedure and better integrate fast-advancing interlock technology into it, including:

» Increase the length of such revocations to boost the time offenders use interlocks. First-time Nebraska offenders are allowed to drive for the last 60 days of their 90-day revocations if they obtain interlocks. That's a period so short, many drivers say they'll just wait out the full suspension — and then maybe drive anyway.

Interlock use for most first-time offenders under administrative license revocation spans six months in Iowa, eight months in Colorado, 11 months in Kansas and up to a year in New Mexico. Iowa and New Mexico both allow most first-time drunken drivers to use interlocks from day one, a further incentive.

» Have the state administer interlock installation through the administrative license revocation process, which is what happens in many states. In Nebraska, a driver must first obtain a court order.

» Have the police officer's sworn report substitute for direct testimony in hearings.

In recent interviews, both sides in the revocation debate said such proposals merit consideration.

“These are things we need to look at seriously,'' said Mike Flood of Norfolk, speaker of the Nebraska Legislature and sponsor of the repeal bill.

Jim Fell, a longtime administrator with the National Highway Traffic Safety Administration, said those who want to eliminate administrative license revocation may be forgetting what ultimately prompted 40 states and Washington, D.C., to adopt the system in the first place.

Those who are charged would do anything to stay on the road. Court cases often dragged on for more than a year. Prosecutors often were willing to accept pleas to lesser charges such as reckless driving to keep cases from tying up courts.

As a result, a Reagan administration blue-ribbon panel in 1982 recommended creating a separate legal process in which state motor vehicle departments would take action against the licenses of drivers who fail or refuse to take breath tests.

While drivers still are given hearings and other due process rights, they don't receive all they would be due in court. The idea is that a license is a privilege granted by the state, not a right. The court case continues, with the driver also facing possible fines, jail time or probation.

Under the administrative license revocation law Nebraska passed in 1992, police officers immediately confiscate the license of anyone arrested for drunken driving and issue a 30-day temporary license.

The temporary license creates a window for a driver to exercise his right to a hearing before a Department of Motor Vehicles hearing officer. Those who don't request hearings or lose at their hearing are left without a license when the temporary expires. Anyone losing in a hearing also can appeal to district court.

License revocations for most first-time offenders last 90 days, at least 30 days of which is a “hard suspension,'' with no driving privileges. After that, drivers can get an interlock or work permit to drive for the duration.

More than 80 percent of the 13,000 drivers arrested annually for drunken driving in Nebraska have licenses revoked under administrative license revocation.

Studies have found the prospect of license suspension does serve as a general deterrent to driving drunk. Since the passage of administrative license revocation in Nebraska, alcohol-related crash injuries are down about 41 percent and fatalities have fallen 16 percent, saving about 16 lives a year.

The procedure also appears to have contributed to a jump in Nebraska court convictions for drunken driving — up from 54 percent in 1992 to 86 percent in 2009. Some defense attorneys say the incentive to fight cases in court fell off once drivers started losing licenses under the program.

“Losing the license just takes the fight right out of them,'' said Paragas, the Omaha defense attorney. “They think, ‘You can't do anything worse to me.'”

Though Omaha has always had a high DUI conviction rate, the number of cases going to trial dropped more than 75 percent after administrative license revocation passed, Conboy said. Conboy said conviction rates have skyrocketed in cash-strapped rural counties that routinely plea-bargained DUI cases.

But there's a growing discontent about administrative license revocation within the state's association of county attorneys. Some members complain that defense attorneys sometimes use the hearings to aggressively interrogate officers, looking for an advantage in upcoming court cases.

Almost half of all Nebraska administrative license revocation cases result in hearings, which national experts say appears higher than is typical. Some attorneys may request hearings in hopes the officer won't show up, causing the case to be dropped.

The hearings also can be costly for local police agencies. While most officers who make DUI arrests work at night, administrative license revocation hearings are held during the day, resulting in hours of overtime pay.

The revocations don't always stop drunken drivers from getting behind the wheel, something even advocates of the program acknowledge. One study estimated that more than 80 percent of drivers continued to drive while on suspension. That can have tragic consequences. An Omaha newlywed suffered fatal injuries last fall in an accident caused by a man who was driving drunk despite an administrative license revocation suspension.

Flood said that's one of the big advantages of his proposed repeal, Legislative Bill 667. Upon arrest, a drunken driver would have his license impounded as a condition of bail, and if he wanted to continue to drive, he would have to get an interlock installed at his expense.

The court case would proceed. The court still could revoke the license, but it appears unlikely most first-time offender drivers would continue to receive “hard'' suspensions. Under state criminal law, most first offenders receive probation and can get interlocks from the start of court-ordered revocations.

Backers of the plan say it would save the state money and better keep drunken drivers off the roads. But Flood acknowledged it faces hurdles.

Defense attorneys say courts could well find constitutional problems with requiring interlocks as soon as a driver is arrested. The bill would impose a penalty on all drunken drivers before they've had any hearing at all on the merits of the charge.

And with DUI sanctions again totally dependent on courts, opponents of the bill fear that Nebraska could return to the days of strung-out cases, frequent plea bargains, low conviction rates and little deterrence.

Opponents also say much of the overtime that officers currently run up testifying from home by phone would often be replaced by even more overtime waiting around courtrooms.

Repealing administrative license revocation also could put Nebraska out of compliance with federal highway safety law, risking $1.3 million in federal drunken driving enforcement dollars. That's one reason why Mothers Against Drunk Driving's Nebraska chapter, which once backed Flood's plan, no longer supports repealing administrative license revocation.

But it does appear there is much room for Nebraska to streamline and improve the procedure.

Missouri has developed a system in which a step-by-step form prepared by the arresting officer serves as his testimony in hearings and subsequent appeals.

Nebraska also could stop allowing an automatic stay of revocation for drunken drivers who appeal their administrative license revocation cases in district court, often a delay tactic.

As an incentive to obtain interlocks, Iowa allows most first-time drunken drivers to get interlocks right away under administrative license revocation but requires six months of use. Kansas and Colorado retain 30-day hard suspensions but require even longer interlock use.

Diane Riibe of Project Extra Mile, an Omaha group devoted to stopping underage drinking, said all Nebraskans will be safer if lawmakers improve administrative license revocation rather than kill it.

“It's not ALR versus ignition interlocks,'' she said. “We can have both. And we should.''

Contact the writer:

444-1130, henry.cordes@owh.com

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