August 20, 2013

How safe are you on the road?

With the potential for so many repeat OUI offenders getting behind the wheel again, the question arises: Why doesn't Maine have a provision to revoke driving privileges for good?

By David Hench dhench@pressherald.com
Staff Writer

and Eric Russell erussell@pressherald.com
Staff Writer

When David Labonte was charged with driving drunk into a family of cyclists early this month in Biddeford, people were shocked to learn he had been convicted of drunken driving four times already.

Today's poll: Drunk driving penalties

Should Maine have tougher penalties for people with multiple drunk driving convictions?

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A sign warns motorists of a sobriety checkpoint on Route 1 in Brunswick.

Photos by Carl D. Walsh/Staff Photographer

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They shouldn't have been.

An analysis by the Maine Sunday Telegram has found that more than 5,000 people who have been stopped four or more times for drunken driving may still be getting behind the wheel. That number jumps to almost 15,000 for people who have at least three prior cases of operating under the influence, or OUI.

"Without question, it's cause for concern," said Portland Police Chief Michael Sauschuck. "When you see somebody who has multiple OUI offenses, it's a ticking time bomb. They're behind the wheel of a dangerous weapon."

The state can't say exactly how many repeat offenders are still on the road. The Bureau of Motor Vehicles electronic database goes back to 1982. Some of those drivers may have died, given up driving or left the state.

However, many are like Labonte, whose convictions were spread out over decades, enabling repeat offenders to get their license back and drive legally again.

Maine has no provision to permanently revoke a motorist's driving privileges, regardless of how many drunken driving convictions a person may have. Only New York state has such a provision; it revokes driving privileges permanently after five OUIs

Experts say permanently revoking someone's license would do little to lower the number of people who repeatedly drive drunk. The only way to do that is to physically stop them from starting a car, through an ignition interlock system. Maine will increase its use of the systems starting Dec. 1, and they are being used in more states as legislators look for ways to reduce drunken driving.

Years ago, Maine led most states in instituting aggressive drunken driving laws, but other states have caught up and in some cases surpassed Maine.

Some states now have started looking at a person's entire driving history to assess how dangerous that driver is on the road. Maine's Bureau of Motor Vehicles, by contrast, considers only the previous 10 years in determining how long a person's license should be suspended.

Maine legislators and public safety officials say the data suggest the state should at least study existing laws to determine whether changes should be made.

"The tragedy in Biddeford again reopened the eyes of many people in terms of the reissuing of driving licenses to those convicted of multiple infractions of OUI," said Rep. Alan Casavant, D-Biddeford, a member of the Legislature's Criminal Justice and Public Safety Committee.

"I think that most people would agree that multiple offenses raise a huge red flag in terms of driving habits and addiction. The Legislature might have to re-examine the issue and be willing to create greater penalties in terms of driving."

State records show that 819 drivers have three or more drunken driving license suspensions within the past 10 years. In court, a third OUI within 10 years is a felony. If the third offense occurs more than 10 years after the first, then it's a misdemeanor.

HABITUAL OFFENDERS

Labonte was first arrested for OUI in 1983 when he was 25. He was caught again in 1988 and deemed a habitual offender. His license was suspended until 1990. For two years, he could only use it to get to and from work.

He was pulled over for OUI again in 2005, when he was 48 years old.

From the state's perspective, it was his first offense, since the third OUI was the only one that fell in the 10-year review period. He received a suspended sentence and a $600 fine. His license was suspended for three months.

In April 2006, shortly after he got his license back, he was picked up again with a blood alcohol content of 0.13 percent.

Under current law, he should have had his license suspended for 18 months and been sentenced to seven days in jail. But he received almost the same penalty as for a first offense: a $750 fine, suspended sentence and 90-day license suspension. Bureau of Motor Vehicles staff could not say why his penalty wasn't more punitive.

At 6 p.m. on Aug. 2, a witness saw Labonte apparently asleep at the wheel as he drove his pickup truck on Elm Street in Biddeford. He made no effort to swerve or apply the brakes before drifting into the oncoming lane and onto the sidewalk, slamming into a family on bicycles.

The father, Jamerico Elliott, 52, died several days later. His 17-month-old son, Lavarice Elliott, remains hospitalized; he was listed in fair condition Saturday evening at Maine Medical Center in Portland. The boy's mother, Melodie Brennan, 31, suffered a broken ankle.

Blood tests showed Labonte's blood alcohol content was between 0.15 and 0.17 percent, twice the 0.08 legal limit for driving. At the time, Labonte carried a conditional license that forbade him from having any alcohol in his system.

Labonte is just the latest example of high-profile cases involving offenders who amassed multiple OUIs.

In 2002, Randal Horr of Windham was convicted of his 13th OUI after being pulled over at the Westbrook-Portland line. He was sentenced to 11 years behind bars, the longest sentence in state history at the time for a habitual offender who hadn't caused an injury.

Milo White of Weston was sentenced in 2011 in Aroostook County Superior Court to almost six years in prison after his 12th conviction for drunken driving. He hadn't had a valid license in the previous 27 years but still drove regularly.

Robert Pineo was sentenced to 15 years in 2001 after he crashed into a mother and daughter in Scarborough. It was his seventh drunken driving conviction. He had already been in an alcohol-related crash 15 years earlier for which he had been sentenced to the maximum 10 years allowed.

Samuel Burgess III was sentenced to eight years in prison in 2011 for his third drunken driving conviction. His first drunken driving arrest led to a manslaughter conviction after a crash that killed a passenger.

Last year, Maine had 48 alcohol-related traffic fatalities out of 164 fatal crashes overall. That was up from 23 alcohol-involved fatals in 2011.

The 23 drunken driving fatals in 2011 represented 17 percent of the total 136 fatal crashes that year, the lowest percentage of alcohol-related fatal crashes in the country that year.

CRACKING DOWN

Decades ago, Maine was at the forefront in cracking down on drunken driving. In 1981, the state became just the second state to institute a mandatory penalty for a first-time conviction. In 1988, it was the third to lower the blood-alcohol threshold to 0.08 percent. In 1994, Maine was among the first states to call for harsher penalties for repeat offenders.

However, Maine is no longer as strict as other states in revoking the licenses of those with multiple OUIs or increasing the 10-year license review period.

"We were way out front and then we kind of plateaued and other states caught on," said Bill Diamond of Windham, a former lawmaker and Maine's secretary of state from 1989 to 1996.

Although it is poised to increase, the minimum penalty for a first OUI in Maine is a 90-day license suspension. That is among the lowest license suspension penalties, although 16 states have lower penalties, according to the National Highway Traffic Safety Administration.

Twenty-one states impose longer license suspensions or revocations for first-time offenders, including eight states that have a 12-month mandatory suspension.

Forty-one states, including Maine, have administrative revocation laws associated with drunken driving, meaning a person's license is taken away even before conviction.

Before 2008, the minimum license suspension for a driver with two OUIs was 18 months. Fourteen states have longer sanctions.

Beginning in September 2008, Maine increased the minimum suspension for a second offense from 18 months to three years and a third offense from four to six years. That brought Maine near the top in minimum suspensions.

Twenty states have minimum licensing sanctions for drunken drivers with a high blood-alcohol level, but Maine is not one of them.

Advocates no longer believe suspending a driver's license for repeat OUI offenders deters drunken driving.

"You could throw the book at a repeat offender and it probably won't help," said Frank Harris, state legislative affairs manager for Mothers Against Drunk Driving. "Interlocks are a better alternative because it forces them to drive sober."

Harris worked with Rep. Robert Nutting, R-Oakland, on a bill that creates an incentive to reduce the license suspension for convicted first-time drunken drivers who install interlock ignition devices, which prevent a vehicle from starting if the operator has any alcohol in his system.

As of Dec. 1, the license suspension period for a first offender would double to 180 days, unless the offender installs an interlock device. That would reduce the suspension to 30 days.

Nineteen other states already have similar laws, with most of them requiring interlock devices. Maine's law is optional.

"The interlock device is enormously successful. We've had it for years (for repeat offenders) and the recidivism rate is very low," said James Boulos, a defense attorney in Saco who specializes in drunken driving cases. "But I don't know that first-time offenders are going to bother. ... I think the devices are more effective in dealing with multiple offenders."

Under Maine law, a person can be convicted of operating under the influence three times in a 10-year period before he is required to install an interlock device.

A 2011 report by Mothers Against Drunk Driving ranked states on their drunken driving laws based on whether they met five criteria: requiring interlock devices for all offenders; conducting sobriety checkpoints; enhancing penalties for child endangerment; have no-refusal standards for field-sobriety tests; and utilizing administrative license revocation.

Only five states -- Kansas, Arizona, Illinois, Nebraska and Utah -- met all five criteria. Maine was one of 10 states that met four of five, falling short on the interlock device requirement. Five states -- Rhode Island, Pennsylvania, Montana, Michigan and South Dakota -- met only one of the five criteria.

"I think Maine is still pretty tough," Boulos said.

Like most states, Maine statute does not have a provision to revoke a repeat offender's license for life.

New York state approved regulations last year that would allow the Department of Motor Vehicles to permanently revoke a license for a motorist who has five DUIs, or driving under the influence convictions, in their lifetime, or three DUIs and a serious traffic offense within the past 25 years, but it appears to be the only state with a permanent revocation provision.

Florida had a similar law that was changed in 2010 to allow drivers with revoked licenses to reapply for a new license after 10 years.

"I'm in favor of lifetime revocation because we can predict that these people are a time bomb waiting to go off," Diamond said.

Maine also lags other states for reviewing repeat offenders' driving records. While a five- or 10-year review period for repeat offenses is the norm, there has been a trend in states toward a longer review period and, in some cases, a review of a repeat offender's entire record before allowing him to drive again. Massachusetts, for instance, recently adopted a lifetime review.

"I think we're going to become a lifetime state; that's certainly the trend," said Boulos.

MADD supports that push, Harris said. "But we see a lot of pushback from states on that."

Scott Gardner, a defense attorney in Biddeford who specializes in drunken driving cases, said a lifetime review is unfair. He cited as an example someone who receives a first conviction as a college student and another 15 years later. That second offense would mean a license suspension of three years.

Gardner said the bigger difference lies not between the first and second offense but between the second and third.

"By the time you get to three, that person is a serious public safety risk," he said. "But for a second offender, the risk is not always the same."

Gardner said Maine's judicial system gives judges plenty of discretion in levying penalties for second-time offenders.

Richard L. Hartley, past president of the Maine Association of Criminal Defense Lawyers, said stripping someone of his license forever is not the solution.

"Certainly there are situations, as a result of people getting killed on Maine's roads, we would say, 'I wish that person's license would have been taken so this didn't happen," he said. But that doesn't take into consideration the broader implications for others if the penalty for first or even second offenses is too severe.

"I can point to many of my clients who have made mistakes in the past and have been punished for those mistakes and who are now living productive lives they wouldn't be able to live if they didn't have a driver's license," Hartley said.

"We live in a rural state where driver's licenses are incredibly important to people working and supporting a family and living a productive life," he said. "If a suspension is reasonable and there's a light at the end of the tunnel, we would hope that person would work to get past it and be productive. If there is no light at the end of the tunnel, that person can be despairing and drive (without a valid license) and have new criminal charges."

In May the National Transportation Safety Board recommended that all 50 states amend their drunken driving laws to lower the blood-alcohol threshold to 0.05 percent.

It could take several years before those standards would be adopted and some industry groups, including the American Beverage Institute, are likely to fight the change. NTSB officials believe it's just a matter of time, however. More than 100 countries already have legal levels of 0.05 percent or lower.

DECLINING RATES

More than 115,000 people have been charged with one drunken driving offense in the state since 1982, the earliest year the state's electronic database tracks. Almost 28,000 have been charged with two OUIs.

Geoffrey Rushlau, district attorney for Lincoln, Knox and Sagadahoc counties and a prosecutor for more than 30 years, said the number of people on the road with multiple OUIs is a concern, but the law seems to be adequate for most offenders.

"Year after year the vast majority of OUI defendants get convicted only once," he said. "(The law) doesn't stop them once but it seems to be effective at stopping them from doing it again."

The number of drunken driving arrests in Maine has been declining in recent years, from 8,029 in 2001 to 6,026 in 2011.

Conviction rates vary from county to county, from 37 percent in York County to 83 percent in Hancock and Penobscot counties over 10 years, an analysis by the Portland Press Herald/ Maine Sunday Telegram found last year.

But a person's right to drive is determined by the Bureau of Motor Vehicles, not a conviction. A defendant can plead to a lesser charge or be found not guilty, and the drunken driving offense will still appear on his driving record because it is an administrative decision, not a criminal sanction.

With slightly more than 1 million licensed drivers in Maine, the number of drivers with multiple OUIs has startled some in law enforcement.

The bureau's electronic database includes people from out of state who were charged in Maine and people who no longer drive either because they gave it up or, in some cases, died.

The number of people currently under suspension in Maine for OUI -- whether licensed in Maine or out of state -- is 35,145.

Secretary of State Matthew Dunlap, who oversees the state's licensing, said the key to reducing alcohol-related fatalities is for individual drivers to examine their own behavior.

"You read the narrative of events around some of these tragedies and you want to scream, 'Don't get in the car. Don't do it,"' he said. "There's the inevitable collision. Someone is paralyzed, someone is killed, someone loses a father or daughter. It's terrible."

Passing increasingly severe penalties yields diminishing returns, he said.

"You've got to get people to believe when we talk about the faceless menace of a drunk driver, we have to consider the possibility that that's us," Dunlap said. "We are that driver. Then you have to do the necessary things to make sure you don't become that headline and that's very, very difficult."

Kennebec County District Attorney Maeghan Maloney said that if someone has a valid license, the state has found that, in a legal sense, that person is safe to drive.

"Of course, someone with multiple OUIs is a safety concern and that's why it's very important that that person receive treatment, if the OUI is alcohol-related, for alcohol dependency, because at that point it's clear the person has a problem with alcohol," she said.

While penalties are important, addressing the underlying problem is essential, she said. That is more effective than suspending someone's license, since the person has already shown a willingness to break the law.

"As much as possible I want to give people the opportunity to turn their life around, but if someone has three or more OUIs, then at that point it is necessary for the person to complete a treatment program to deal with the underlying problem or we could have a fatality in the future," Maloney said.

Criminal sanctions work for a large percentage of the population, said Dr. Mark Publicker, head of the Mercy Recovery Center in Westbrook. But alcohol impairs judgment and the ability to regulate behavior, and that includes the decision to drink and drive.

In some cases, stopping people from drinking can be more effective than trying to stop them from driving.

"Alcoholism is a chronic illness that requires chronic attention and some form of reinforcement of sobriety," Publicker said, noting that Alcoholics Anonymous has the best rate of long-term success. "At the point where the person no longer believes they have a problem is when drinking is going to express itself."

David Hench can be contacted at 791-6327 or at:

dhench@mainetoday.com

Eric Russell can be contacted at 791-6344 or at:

erussell@mainetoday.com

 

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Additional Photos

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A motorist walks a line while being assessed for sobriety at a checkpoint set up Friday on Route 1 in Brunswick by Cumberland County police assigned to the Regional Impaired Driving Enforcement, or RIDE, team. Maine records going back to 1982 show that nearly 15,000 people have at least three prior cases of operating under the influence.

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Brunswick Police Officer John Roma and other Cumberland County officers conduct sobriety checks Friday.

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Cumberland Police Officer Ryan Martin, below, conducts a field sobriety test Friday.

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Police cuff a drunken driving suspect.

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Today's poll: Drunk driving penalties

Should Maine have tougher penalties for people with multiple drunk driving convictions?

Yes

No

View Results