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Fairfax County
Fairfax County is a suburb of Washington, DC, in Northern Virginia. As of the 2010 census, the population of the county was 1,081,726. It is the most populous jurisdiction in Virginia (with 13.5% of the State’s population) and the most populous jurisdiction in the Washington DC Metropolitan Area (with 19.8% of the area’s population). The county has a total area of 407 square miles, of which 395 square miles is land and 12 square miles is water. Within the county is the city of Fairfax, an incorporated city separate from the county. The county government center is in an unincorporated area of the county, near the city of Fairfax.
The County of Fairfax has a sheriff’s department with offices located in the government center. The county also has a police department with headquarters at the government center and eight police substations distributed around the county.
All convicted DWI offenders in the Commonwealth of Virginia must participate in the Virginia Alcohol Safety Action Program (VASAP). This typically includes an alcohol education program consisting of 20 hours of classroom participation over 10 weeks. Offenders are on probation for 1 year and assigned a probation counselor. Offenders are breath tested upon initial intake at VASAP and periodically at one or two of their 2-hour classes. Offenders who screen as alcohol dependent or addicted are referred to a certified treatment facility.
Reportedly, 1,100 to 1,300 arrests for multiple DWI or high-BAC DWI are made each year in Fairfax. Rural 24/7 programs reported that offenders tend to remain on the program from 2 to 6 months. If it is assumed that there are 1,200 DWI offenders eligible for the program each year and that they remain on the program for an average of 4 months, it is estimated that there would be approximately 400 offenders being tested each day. If these were spread evenly across eight police substations, each station would test an estimated 50 offenders twice each day.
General Sense about Feasibility
Officials in Fairfax were asked for their general impressions about the feasibility of a 24/7-type monitoring program in Fairfax, including what modifications might be necessary and what alternatives might be more feasible.
Necessary program modifications
Whereas the rural programs involve testing at sheriff’s offices at the county seat, Fairfax officials suggested that traveling to Fairfax City for testing would be too inconvenient and take more time than most people have. An alternative would be to go to offenders’ local district police substations.
Because all DWI offenders are sentenced to participation in VASAP, VASAP would likely be the agency tasked with supervising offenders on a 24/7-type program. This is different from the rural States, in which there is no similar program for overseeing DWI offenders.
Fairfax officials stated that law enforcement officers would not be permitted to take payments from offenders, but VASAP officials can do so.
Immediate incarceration for violations, which is considered an important part of the rural 24/7 programs, was considered problematic and currently not possible in Fairfax without a change in legislation. Reported barriers include legal/political difficulties related to incarcerating offenders without a hearing, lack of available facilities to hold offenders, and resources required to transport them to holding facilities. Legislation would likely be necessary to overcome these hurdles.
Viable alternatives that would be more feasible
Some officials suggested that the current system, involving participation in VASAP, is more feasible and may be sufficiently effective. Fairfax County (and all of Virginia) is beginning to use ignition interlocks more than they have in the past due to legislation mandating their use for all convicted DWI offenders. Interlocks were seen by some as a feasible alternative. Home-testing technologies and other monitoring technologies, such as TAM, were mentioned as potentially viable alternatives. Some officials, however, had doubts as to whether twice-daily testing, or any of the alternatives, could be considered effective because they believed that offenders could find ways to circumvent any of the alternatives and continue to drive while intoxicated.
Most officials expressed the belief that State-level legislation would be necessary to (a) allow judges to order offenders to participate in the program, (b) allow law enforcement officers to incarcerate offenders immediately after violating the program, (c) make it possible for offenders to obtain restricted driver license privileges to drive to testing facilities, and (d) establish a system for receiving breath-test payments from offenders and sending it to VASAP to pay for the extra resources necessary to run the 24/7 program.
The Fairfax County sheriff’s office is in the city of Fairfax. The area is fairly congested. It would therefore be difficult for offenders to get to the sheriff’s office from most parts of the county. Eight district police substations are located throughout the county. Fairfax officials believed that the substations would be a more reasonable location for twice-daily testing. One problem with using these facilities would be that parking is considered limited at five of them. Another hindrance is that only two have facilities to lock up offenders who violate the program. This means that an officer would be required to drive violators to the nearest substation with lock-up facilities.
Staffing
Fairfax officials believed that law enforcement agencies and VASAP staff would be unable to take on the additional effort of testing without hiring additional staff. They acknowledged that it might be possible to use citizen volunteers or hire non-law enforcement staff (e.g., VASAP) for testing and data entry, but any official action because of a violation (e.g., arrest and transportation) would require law enforcement officers.
A potential problem for the acceptance of the program by law enforcement was that having officers conducting tests, transporting offenders, and engaging in administrative aspects of the program would be considered “taking officers off the street,” which would be unpopular with county officials and the public. Even if VASAP officials conducted the tests, law enforcement would still be needed for sanctioning the 1% of offenders (~4 per day) who are BAC positive and who are no-shows.
Training
Officials noted that conducting breath tests and other tasks related to the program would require some training and believed that all officials who might be called upon to participate in the program should be trained. This will reduce the likelihood of problems that might emerge should trained staff become unavailable.
It would also be necessary to educate officials from other agencies involved in the program, so that they are aware of it and use it appropriately.
Equipment
There are an adequate number of PBTs available at police substations, at the sheriff’s headquarters, and at the VASAP headquarters. Whether they would be up to the task of conducting the number of tests necessary is unclear. A VASAP official mentioned costs for maintenance of the PBTs, mouthpieces, etc., that would be required.
An issue that arose concerning equipment is whether it would be possible to use PBTs in Fairfax for a twice-daily breath-testing program. The concern is that there have been challenges in the past to the use of PBTs in DWI cases. Officials acknowledged that the circumstances are different in a twice-daily testing program, where it is not necessary to show that offenders are over a given BAC level, but believe there would still likely be a challenge to the reliability of the devices if the results are used to sanction offenders. So a calibration and certification program may be necessary to run a 24/7 program.
Costs
Officials understood that the programs in the rural jurisdictions were generally considered self-supporting after receiving some initial funding for equipment. Some Fairfax officials believed that it would be difficult to make such a program self-supporting in Fairfax because they believed more new staff and facilities would be needed and because there would be offenders who are indigent or “working poor” who are unable to pay even $2 to $4 per day. Some suggested that the program might pay for itself if higher offender fees were established.
Reciprocity
Reciprocity is a concern for Fairfax officials because of the number of offenders who drive through Fairfax while commuting to and from Washington, DC, and Maryland. There was also concern about offenders from neighboring counties, though this would probably not be an issue if the program were implemented statewide. Any offender arrested and convicted of DWI in Fairfax County must initially report to the Fairfax County VASAP for intake.
Transportation
Officials believed that transportation to testing facilities would be difficult for offenders. Although Fairfax has public transportation, it is not necessarily configured to get people to places where testing would occur. Using public transportation would likely take enough time, twice a day, to interfere with offenders’ ability to work. Traffic was also considered a problem. The distances to be travelled might be significantly shorter in Fairfax than in rural States, but the amount of time spent traveling would not necessarily be shorter.
Other
Officials noted that implementing a 24/7-type program would require creating channels of communication between the agencies involved. For example, probation officers from VASAP would need to know quickly when probationers violated the program. If testing took place at county police stations, and VASAP ran the program, fast and efficient lines of communication between the two would need to be established.
Judges expressed some concern over issues of due process associated with the program. Offenders would probably need to sign agreements to participate in the 24/7 program (or serve their jail sentence) and agree to the sanctioning for positive BACs or for not showing up for testing.
Some officials believed the program would be overly burdensome to some offenders (e.g., to those without licenses who may need significant time to appear at testing facilities twice a day).
Officials expressed the belief that the program could reduce their workload if it resulted in reduced recidivism and, therefore, an overall reduction in DWI offenses in the county. However, at least initially, officials believed it would increase their workload.
Potential Interference with or Facilitation from Other Programs
There was concern that having offenders assigned to both ignition interlocks and a breath-testing program could be problematic because it could be seen as redundant. Additionally, the interlock law sets a maximum BAC of .02 to start a vehicle; however, some 24/7 programs have set lower levels as violation of the program. Under this situation, offenders could “pass” an interlock test but “fail” the 24/7 breath test. This situation was considered confusing and, potentially, a political problem.
One official suggested that it would be hard to identify any single agency whose operations would be substantially affected; however, the additional administrative load on each agency involved in the program would likely have some negative effect. This would be particularly true of the VASAP program should a 24/7 program in Virginia be handled by VASAP.
Interest in/Likelihood of Using a 24/7 Program
A Fairfax County Commonwealth Attorney reported that he would be inclined to use such a program if it were established and functioned smoothly. Although discussions focused on DWI offenders, some officials noted the potential for applying the program to domestic violence and assault offenders would provide a greater incentive to use the program, in addition to using it for drinking drivers.
Perceptions Regarding Program Costs
There was some concern that the program would not pay for itself, or that if it did, it would require significantly higher fees than are charged in the rural jurisdictions. Most officials noted that the program would likely be run through VASAP and that the current revenue for VASAP has not been enough to cover the costs of the existing programs. Increased costs, without sufficient revenue, would be impossible to sustain.
Perceptions Regarding Potential Program Effectiveness
Officials were generally unwilling to guess whether a 24/7-type program would be effective in reducing drinking behavior and recidivism by offenders or in reducing impaired-driving crashes. The 24/7 program has potential, but it would need to be demonstrated as effective in Fairfax County.
Perceptions Regarding Stakeholder Collaboration
There was no consensus on which agencies or types of officials would be more or less willing to participate in the creation and administration of a 24/7-type program. There was general agreement that a significant amount of preplanning would be necessary to establish procedures and agree on which agencies would assume which responsibilities under the program. All officials agreed that increased resources would be needed to implement 24/7 in Fairfax County.
Perceptions Regarding Community Support
Officials generally believed that such a program would be accepted by the community and by community groups concerned with impaired driving, provided they had the impression that the program would improve safety.
Washington, DC
Background
In 2012, Washington, DC, had an estimated population of 632,323, the 24th most populous jurisdiction in the United States. Commuters from the surrounding suburbs in Maryland and Virginia raise the city’s population to more than one million during the workweek. The Washington Metropolitan Area, of which the District is a part, has a population of 5.9 million, the seventh-largest metropolitan area in the country. A locally elected mayor and 13-member city council have governed the District since 1973 when the Congress granted limited home rule provisions; however, the Congress maintains supreme authority over the city and may overturn local laws. According to the U.S. Census Bureau, the District has 68.3 square miles, of which 61.4 square miles is land and 6.9 square miles is water.
Because Washington, DC, is not located in a State, it has no State-level government. Many of the political institutions that govern the District of Columbia are at the Federal level. Law enforcement agencies that arrest impaired drivers include the Metropolitan Police Department, U.S. Park Police, U.S. Capitol Police, and the U.S. Secret Service. Unlike the rural States currently operating 24/7 sobriety programs, Washington, DC, does not have a local sheriff’s department. The U.S. marshals function as sheriffs but serve the Federal court system. The courts that handle DWI cases are mostly local district courts, though in some cases, a Federal attorney may handle a DWI case in a local court.
Washington, DC, courts operate with the philosophy that bond should represent the least restrictive conditions for offenders. The courts do not use money bonds. Defendants who are required by the courts to be monitored between arrest and trial are assigned to the Pre-trial Services Agency for monitoring. Offenders on probation or parole are monitored by the Court Services and Offender Supervision Agency.
Many who drive in Washington, DC, are residents of the surrounding States of Maryland, Virginia, and West Virginia, who come to the District to work and for recreation. Washington is also host to many visitors from farther away, who come for work, important events, and tourism. The large number of nonresident drivers results in a high proportion of DWI arrests of nonresidents.
General Sense about Feasibility
Officials noted several major challenges to implementing a 24/7-type program. These challenges included the need for reciprocity with neighboring jurisdictions; the need to coordinate multiple law enforcement agencies, courts, and agencies that operate at both the local and the Federal levels; the need for financial resources to cover the costs to agencies involved in program operation and to provide an indigent fund; and a generally liberal environment under which courts and probation officials would likely not have the power or desire to require offenders to remain abstinent.
Most officials believed legislation would be needed for law enforcement officers to arrest program violators and that, even with such legislation in place, to do so would be legally and politically problematic. Some officials expressed the belief that the political and legal environment in primarily rural States is much less complicated than in urban environments such as Washington, DC, so what is feasible in rural areas is much less so in urban ones. Some officials noted that, of all the offenders they handle, the DWI offenders tend to be more responsible and less “criminalistic,” so judges and other officials are less likely to impose severe or onerous sanctions on them.
Necessary program modifications
Because the District of Columbia has no sheriff’s department, another agency or agencies would need to assume the task of breath-testing program participants. Perhaps the most likely agency would be the MPD, which has seven district stations and three substations.
The MPD does not currently use PBTs, although that is expected to change. With only evidential breath-test devices, it would not be feasible for the MPD to conduct breath tests unless PBTs were purchased separately for the 24/7 program.
The MPD is not authorized to take payments from citizens for program participation. Some other system would need to be instituted to collect program fees and disburse program funds.
Currently, MPD can hold someone for about 10 minutes without it being seen as an arrest. Probation and parole officers, in contrast, have more authority to hold someone and charge him or her than the police do, so it was suggested that it might be better to have probation and parole officers conduct the testing.
Officials believed that it would be necessary to have an indigent fund to operate an offender-paid, breath-testing program in Washington, DC.
Viable alternatives that would be more feasible
Washington, DC, has recently begun establishing an ignition interlock program. Some officials suggested that the use of interlocks might be a feasible alternative to a 24/7-type program. TAM was mentioned as a possible alternative, although it was not considered to be without potential drawbacks.
Officials reported that Washington, DC, tends to focus on providing treatment for people viewed as potentially being addicted to alcohol or drugs. This approach was considered by some as a viable alternative to requiring abstinence and monitoring alcohol and drug use. There was some concern expressed that the institution of a program of abstinence and monitoring might result in a shift toward sanctions for violators rather than treatment.
Another alternative to promote and monitor offender sobriety would be to change the way individuals are processed in the District. Currently, offenders in DC typically are not arraigned for 3 weeks or longer. Thus, there is a relatively long time between the DWI offense and any intervention (e.g., treatment, pre-trial supervision). Officials observed that a benefit of the 24/7 program is that offenders who violate the program are seen quickly (within 24 to 48 hours). Although the notion of expediting the process of getting offenders in contact with judges and treatment providers was seen as a plus, it would not necessarily require alcohol testing.
Need for Legislation
Officials believed that legislation would be necessary to institute a 24/7-type program. The legislation would be necessary to incarcerate offenders for violations of the program and to establish a system for funding the program through offender fees. Complicating the process would be a possible requirement for the U.S. Congress to be involved.
Related Issues
Due to traffic congestion in Washington, DC, and the potentially high number of offenders, officials believed that it would be necessary to have multiple testing stations within the city. A sensible choice would be to use MPD district stations and substations. Whether other law enforcement agencies would participate in testing would depend on their ability and/or willingness to conduct tests themselves or to hand off to the MPD cases that originated with their agencies. Officials suggested that if agencies such as PSA and CSOSA were to assign offenders to twice-daily testing, they might participate in testing at their offices. Officials suggested that testing by agencies other than just the MPD would help spread the burden, making it easier to conduct testing at any given individual location. Offices that are open during the day could handle testing during the day, lessening the burden on locations that are open day and night.
A lack of space and parking were considered barriers to using any of the facilities suggested for testing. Acquiring additional space to be used for testing stations would be complicated by the number of agencies that would be involved, the high cost of space in the District, and how high the decision would need to go (e.g., the Mayor’s office or possibly the U.S. Congress).
Another complication to testing at these facilities is related to the security at the entrances to most of them. Often, any available space for testing is located beyond a security station. Passing through security could add a significant burden to the time required for testing, and the system is not designed for the increased number of people who might be passing through for testing.
Yet another concern would be where to hold offenders in the event of a violation. If it were possible to incarcerate them immediately, as the program is designed in rural jurisdictions, officials questioned whether violators would be held in areas in which violent offenders are held, or in areas where intoxicated offenders are held (i.e., the “drunk tank”). The latter would be safer for offenders, but it typically requires police officer supervision to prevent intoxicated arrestees from injuring themselves. Breath-test program violators may or may not be intoxicated, but a decision to put them in the “drunk tank” carries potential negative liability-related consequences. Adding to the complication is the fact that males and females would each need to go to separate facilities.
Staffing
Most officials believed that current staff would be unable to accommodate additional work, so any testing, and certainly the amount of testing given the anticipated number of eligible offenders, would require additional staff. There was concern that whatever time officers spent on a testing program would result in “taking officers off the street,” which runs counter to their mission as perceived by the public and the officers themselves.
Training
Some training of officers or other staff tasked with conducting tests would be necessary, as would be training in other aspects of the program, such as data entry and administrative tasks. Agencies would lean toward training all staff who might be involved. Officials acknowledged that training in the use of PBTs requires relatively little time.
Equipment
At the time of discussions with MPD, Washington, DC, did not have PBTs, nor did it have a program for using and maintaining them. Plans were underway to establish a PBT program in the future. CSOSA does not use, own, or maintain breath-testing equipment. Some of the other agencies that might be tasked with testing (e.g., PSA) do own and maintain PBTs.
There is some concern that interested parties (e.g., defense attorneys) might push to use evidential breath testers for a 24/7-type program, given that program participants may be sanctioned based on test results. Using evidential testers would likely be too expensive and time consuming to be practical.
Costs
Officials assumed that the cost to implement and run the program would include labor costs to train staff and potentially to hire additional staff; costs of acquiring, maintaining, and periodically replacing PBTs; and costs of supplies. Predicting the cost of running the program would be difficult without first knowing how it would operate. For example, it is reasonable to assume that there would be a cost per testing station, requiring knowledge about the number of stations to calculate the cost of testing.
It was suggested that there would be people considered indigent and unable to pay the costs of the program. Historically, similar programs in Washington, DC, have been told to establish a mechanism for covering the cost of such programs for indigents.
Reciprocity
Given its location and the large number of nonresidents who drive in Washington, DC, reciprocity would be a major issue for a 24/7-type program there. Officials point out that nonresident drivers in the city include people from surrounding States who come to the city frequently, as well as visitors from across the United States and around the world. It is common for people convicted of DWI in Washington, DC, to be allowed to address court orders, such as alcohol treatment and driver improvement classes, in jurisdictions outside the city, using service providers more convenient to the offender. In the absence of any agencies in adjacent and nearby States that provide twice-daily breath-testing services, offenders would need to come into the Washington, DC, to take tests, which could be difficult or impossible.
Generally, when a crime is committed in one State, the offenders can be monitored in another State if there is an agreement between States through an Interstate Compact. Washington, DC, has such an agreement with neighboring States for felony but not for misdemeanor DWI. Therefore, even if there were a twice-daily breath-testing service in another State, it would not currently be usable for misdemeanor drinking-driving offenses in Washington, DC.
One official expressed the opinion that reciprocity may be more of an issue for urban jurisdictions than rural, in general, because urban jurisdictions are more likely to attract commuters and visitors who may be coming across State borders. Further, many of the more densely populated areas of the Unites States are in the Eastern part of the country where States are smaller and people are more likely to live within an easy drive of a border.
Transportation
As with the rural States operating 24/7 sobriety programs, it is possible that people assigned to a program in Washington, DC, would not have driving privileges. The Washington Metrorail system and Metrobus bus system could be useful for traveling to and from testing. Not all areas of the city or surrounding metropolitan areas are served by the rail system. Some officials believed any testing facility would have to be accessible to the rail system. Using the bus system can be time consuming. It was suggested that the city might be required to pay the transportation costs for indigent offenders assigned to the program.
Other
Because Washington, DC defendants are subjected to the least restrictive conditions of bond, assignment to a 24/7-type program as a condition of bond before the trial likely would be problematic. Judges in Washington, DC are reportedly reluctant to order abstinence as a condition of bond. PSA would not assign a program requiring abstinence to defendants it supervises in the absence of a court order. As part of its minimally restrictive approach, Washington, DC, does not take money from defendants as a condition of bond. Defendants awaiting trial are released on condition that they not violate the law (e.g., do not operate a vehicle after drinking). Therefore, the ability to offer reduced bond and program participation as an alternative to full bond cannot be used as an incentive to get defendants to participate in the program, as is sometimes done in the existing rural 24/7 programs. It was suggested that assigning offenders to the program as a condition of probation or parole would be more feasible than as a condition of bond, because the presumption of innocence is no longer a factor after conviction. An official at CSOSA, the agency that supervises offenders on parole or probation, reported that judges do occasionally order offenders to remain abstinent.
Another potential problem in Washington, DC is that finding offenders with warrants for failure to appear for testing would be difficult because it is so easy for people to get into neighboring jurisdictions where DC officials have no authority.
Because Washington, DC has not been using breath testing, the city has relied upon urine testing. A large proportion of drivers test positive for drugs, primarily PCP, marijuana, and cocaine. This is interpreted as suggesting that the city may have a substantial drugged-driving problem. For that reason, some officials may want a 24/7 sobriety program in the District to include a drug testing component, as it does in some of the rural programs. PSA already conducts drug screening of some individuals. CSOSA also conducts some drug testing.
Perceived Effects on Workload
It is difficult to predict the effect on workload without kno