What Is Wrong in Virginia?

For the past several years, the number of innocent victims of drunk driving crashes has been steadily decreasing all across the United States. In 1997, 16,189 people died from alcohol-related crashes in this country. This number decreased to 15,936 in 1998 and further decreased to 15,794 in 1999. Nationally, this is very good news.

But in Virginia, the death toll from alcohol-related crashes has tragically taken the opposite course. In 1997, 302 innocent victims died on Virginia highways. In 1998, this number jumped to 336 and in 1999 it further jumped to 364.

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During this same time, a number of new laws were passed that increased the penalties for driving under the influence of alcohol and other drugs. Several national organizations have published materials to help the police apprehend drunk drivers and the majority of the police departments in Virginia have increased their enforcement efforts.

MADD has been very active at both the state and local level educating the public and the politicians about the issues surrounding drunk driving. Several high profile crashes in Northern Virginia have brought increased press coverage about the perils of drunk driving.

But the death trends in Virginia are going the wrong way. Drunk drivers, many of them repeat drunk drivers, are still endangering, maiming and killing us on the roadways of Virginia. What is causing Virginia to buck the national trend toward safer streets?

Let's look at one example for a possible explanation for Virginia's out of control increase in alcohol-related fatalities. A person's third conviction for driving under the influence of alcohol is a felony in Virginia. Because this characterization has several bad consequences for the person convicted, it should act as a deterrent. But often the fact that a person has been arrested for drunk driving multiple times does not act as a deterrent. Why not?

Part of the problem is that there are judges in Virginia who will say that the defendant is guilty of a first time DUI when the person has, in fact, been previously convicted several times before. Because the prosecutor cannot appeal this type of decision, the judge's ruling stands and a person's record can have a number of "first" offense DUI convictions. Thus, because a person in Virginia can have several "first" offense DUI convictions, that person does not suffer the consequences of receiving the justly-deserved felony conviction.

While legislative attempts to cure this particular problem have been instituted, the judges who want to go easy on drunk drivers have another trick that they have used and which they may start using even more now. Although reckless driving is not a lesser included offense under drunk driving, and therefore it is improper to "reduce" a drunk driving charge to reckless driving, there are certain judges who will convict a drunk driver of reckless driving instead of DUI even when there is clear evidence that the driver was drunk. Since the drunk driver was not convicted of DUI, the next time he or she is arrested, it is only a first offense.

While these miscarriages sometimes occur because the prosecutor is new or inexperienced, it appears that a couple of judges in Northern Virginia have reputations for being the judges to get when accused of drunk driving. These judges find excuses to let drunk drivers go without convicting them of DUI. Some defense lawyers even ask for continuances just to get the chance to have one of these soft judges hear their cases when the new trial date comes up.

Is it fair to place the primary blame for the rising number of alcohol-related crash deaths on the judges and the politicians who appoint them? Let's look at the direct and undeniable correlation between the number of deaths and the DUI conviction rate. In 1996, 92.2% of those arrested for DUI were convicted. In 1997, the conviction rate went down to 88.35%. It held nearly steady at 88.82% in 1998. And then suffered another drop to 86.65% in 1999. As the percentage of DUI convictions has been going down, the number of DUI-related deaths has been soaring. The police are doing a better job of clearing our streets of drunk drivers. The judges are putting them back out there without regard for the safety of the law-abiding public.

What can be done to turn Virginia's terrible alcohol-related death trend around? The judges who are letting the drunk drivers off are not necessarily bad people. Many have had distinguished careers as lawyers. Unfortunately, some of those who are soft on drunk drivers have a hard time being firm with their friends, the lawyers who appear before them. They do not like it when they cannot give their friends' clients another chance so they compromise and let truly guilty drunk drivers get away with drunk driving. There are other judges who just have a hard time punishing clean-cut, normally law-abiding, honest citizens who chose to risk the lives of the public by driving drunk.

In Virginia, judges are appointed by the legislature so they have no incentive to inform the public about whether they are doing a good job. MADD has even been told by the local court clerks that the records of the individual judges regarding drunk driving cases are either unavailable or very difficult to obtain. However, the judges who will not convict are well known to the legislators who appoint and reappoint them. Yet, because MADD does not have complete statistical data, we cannot go to the public and expose the soft judges and the legislators who reappoint them. That is where you come in.

We need people who have the time, during the workday, to go to the courthouses in Northern Virginia to watch these judges. Several years ago, we had a very active court monitoring program because we had one volunteer who went to the courthouse every day. Not only did he get valid statistics, but his presence in the courthouse reminded the judges that they are ultimately accountable to the people.

Once we have a few volunteers to monitor the courts, we will be able to present the public with a clear picture of the way the courts respond to the laws that the public wants. We will also be able to let the public know which legislators vote to return soft judges to the bench. Some may say that it is unfair to identify legislators who reappoint soft judges because the legislators do not know any more about how good the judges are than we do. But that begs the question. If the legislators who vote on judicial appointments want to know the judges' records, they can get them. If they want to deny that they know the records, then they are not doing their jobs.

Another thing that you can do is to write or call your delegate or state senator and tell him or her that you are tired of judges who circumvent the law and let drunk drivers get away with their crimes. Tell your legislator that you will hold him or her responsible at election time for any judge who is found to be soft on drunk driving if your legislator voted to reappoint that judge. The legislators know which judges should not be reappointed. If they let their friendships get in the way of appointing or reappointing people with appropriate dispositions to be judges, then they should not be representing you in Richmond.

If you want to learn how to be a court monitor, please call the MADD office. We will hold a brief training session and then will be able to start getting the data to publicize which judges should not be reappointed -- and if any of the soft judges have been recently reappointed, we will disclose the voting records of the legislators who allowed these soft judges to endanger the safety of all of us.

It is time for the voices of the victims to be heard in the judicial and political arenas. Lax penalties for drunk drivers only encourage those with alcohol problems to ignore the rules and endanger all of us. The laws are in place. The police are doing the job on the streets. But until the judges begin to act responsibly and the legislators begin to hold the judges accountable for their actions, none of us will be safe when we travel the roadways of Virginia.