BUREAU OF JUSTICE ASSISTANCE (BJA) DRUG COURT CLEARINGHOUSE/TECHNICAL ASSISTANCE PROJECT

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1 JUSTICE PROGRAMS OFFICE SCHOOL OF PUBLIC AFFAIRS BUREAU OF JUSTICE ASSISTANCE (BJA) DRUG COURT CLEARINGHOUSE/TECHNICAL ASSISTANCE PROJECT FREQUENTLY ASKED QUESTIONS SERIES: States Considering Presumptive Sentencing Provisions Requiring DUI Drug Court Participation for DUI Misdemeanor Offenses Subject: States Considering Presumptive Sentencing Provisions Requiring DUI Drug Court Participation for DUI Misdemeanor Offenses From: BJA Drug Court Clearinghouse/Technical Assistance Project Date: February 2, 2013 Michelle Bartley, State Drug Court Coordinator for Alaska, has raised the following concerns regarding the state s consideration of changing their current practice relating to the process for referring individuals to misdemeanor DUI Courts. At the time of her request, participation in misdemeanor DUI Courts in Alaska had been voluntary. However, the Therapeutic Courts subcommittee, a policy level stakeholder group, had been considering the possibility of mandating participation in misdemeanor DUI Drug Courts for persons who (1) had committed their second misdemeanor DUI offense within 12 months; and/or (2) met the criteria for high risk as defined by NHTSA, as space permits. Michelle indicated that there has been a belief in Alaska that defendants with a 2 nd DUI offense within 12 months would be appropriate for a mandatory referral and if deemed appropriate, would be placed in the DWI court. With this background, Michelle asked for the following information on behalf of the therapeutic courts subcommittee: Questions (1) Is there any other state that sentences defendants, charged with misdemeanor DUI offenses, to be screened and evaluated for participation in a misdemeanor DUI Court? (2) If so, what is the experience with that approach? NOTE: Ms. Bartley indicated that Alaska would like to move to what they're calling a "presumptive system" where every defendant who meets the legal criteria (charged with a second DUI within 12 months of the first conviction) would be offered the option of entering the DUI therapeutic court if (a) there is an opening in the court; and (b) a clinical assessment indicates that the defendant's treatment needs can be met. She indicates "We would like to move away from the current admissions system which is seen by many as highly subjective and time-consuming because it involves the defense

2 attorney proposing particular clients for admission and the prosecutor then determining whether he/she wants to forward those names to the team. RESPONSES CONNECTICUT Kimberly D. Joyner, L.M.F.T Caseflow Management Specialist Court Operations - Criminal Division Judicial Branch, Superior Court State of Connecticut Wethersfield, CT Kimberly.Joyner@jud.ct.gov Comment [AU1]: It is only listed as court operations in the . I searched online and I believe that it is the court operations department for the state of CT. [succeeded by Chris Pleasanton, Court Planner/Coordinator Chris.Pleasonton@Jud.Ct.Gov] Connecticut does not have a DUI/DWI court. MARYLAND Judge Neil Edward Axel District Court of Maryland for Howard County Ellicott City, MD Neil.Axel@courts.state.md.us A problem solving approach to repeat DUI offenders has proven to be more effective than traditional sentencing approaches and certainly any effort to refer offenders to a Drug or DUI Court program is beneficial. Of note, however, is a recent webinar from the National Drug Court Institute that addresses the important differences between DUI Court participants and Drug Court participants, and why separate tracks should be maintained. It is a 60-minute program on "The DWI vs. the Drug Offender" and the second half of the program (Judge Patrick Bowler) discusses this issue. The webinar can be found at the following website. Once you get there, simply click on the "Watch this webinar"link. In Howard County, Maryland we run both a Drug and DUI Court program, and although there is some overlap with the same Team members, we schedule the DUI review hearings in the afternoon and the Drug Court review hearings in the morning. Kerin Raymond Drug Court Coordinator MASSACHUSETTS

3 Concord and Ayer Drug Courts Massachusetts does not have any guidelines or regulations pertaining to this inquiry. Abby Kuschel Wellness Court Coordinator Itasca County Wellness Court Grand Rapids, MN MINNESOTA Itasca County in Minnesota currently doesn t employ this practice; however, I find it very intriguing. I would love to get a summary of the responses you receive to take into consideration. Joseph K. Craft State Drug Court Coortdinator Mississippi Administrative Office of the Courts Jackson, MS jcraft@courts.ms.gov MISSISSIPPI Mississippi does not. However, I like the idea of this and would like to know how this turns out. Linda Miller Coordinator Billings Municipal Treatment Court Billings, MT millerl@ci.billings.mt.us MONTANA In April of 2011, the State of Montana passed a new law stating anyone found guilty of an Aggravated DUI (link to statute: m) must be sentenced into mandatory treatment court where available. I was very happy the law had passed and finally our state (ranked 2 nd in the nation per capita for DUI s) was being proactive with treating DUI offenders. The only drawback was the Legislature forgot one important thing funding! Billings, the largest town in MT with a population of 109,000. The Court has seen over 150 people charged with Aggravated DUI s, not counting 1 st -3 rd offenses. At this point, we do not have a designated DUI Court and we are seeking funding to offset the DUI offenses from our Drug Court. Secondly, NADCP strongly supports voluntary admission into Treatment Courts; I feel the voluntary requirement is important because offenders must want to change rather than have attempts to MAKE THEM CHANGE BEFORE THEY ARE READY. Our team has seen an influx of Aggravated DUI offenders with low motivation or little chemical dependency issues who are not willing to participate while in treatment. Their poor attitude towards the court and treatment is counterproductive to the people who want help. Our team has decided to enroll all Aggravated DUI offenders into the Prime For Life class. Based on

4 an exit interview, we can determine if treatment court is the correct approach or a less intensive alternative is warranted. We believe each person should be taken on a case by case basis. NEVADA Toni R. Barden Judicial Executive Assistant to Judge Douglas W. Hedger Henderson Municipal Court Department 2 Henderson, NV Toni.Barden@cityofhenderson.com We do not have such a provision. Robert A. Gasser Coordinator Grafton County Superior Court Drug Court North Haverhill, NH ragasser1@yahoo.com NEW HAMPSHIRE We have no DUI courts at this time in New Hampshire. Judge Ernie L. Glenn Bexar County Felony Drug Court San Antonio, TX eglenn@bexar.org TEXAS One section of the Texas Drug Court Enabling Statute, specifically, Sec of the Health and Safety Code, seems to require participation in Drug Court for subsequent DWI offenders if the county has a Drug Court program but not a DWI specific program. It reads as follows: "(a) The Commissioners Court of a county may establish under this chapter a drug court program exclusively for persons arrested for, charged with, or convicted of an offense involving the operation of a motor vehicle while intoxicated. (b) A county that establishes a drug court program under this chapter but does not establish a separate program under this section must employ procedures designed to ensure that a person arrested for, charged with, or convicted of a second or subsequent offense involving the operation of a motor vehicle while intoxicated participates in the county's existing drug court program." On the felony side, we are receiving quite a few DWI cases due to this language and it seems to be working quite well. Of course, the alternative for these participants could be 2-10 years in prison! Our biggest problem at this point is capacity. WASHINGTON

5 Bradley Finegood, LMHC Therapeutic Specialty Courts Coordinator Clark County Superior Court Clark County [In this case] the State would mandate each jurisdiction to have a DUI court also. Debbie Garvin Programs Manager Cowlitz County Drug Court Longview, WA GarvinD@co.cowlitz.wa.us Cowlitz County does not have a DUI Court. Rose Wilhelm Deputy Prosecuting Attorney rwilhel@co.pierce.wa.us Cowlitz County Pierce County Pierce County, WA does not have a DUI court. Shannon Koutecky DUI/District Court Probation Manager Spokane County District Court Spokane, WA SKoutecky@spokanecounty.org Spokane County Here in Spokane Washington, we, too, have a DUI Court. A couple of years ago we changed our criteria from opt in to Mandatory. If an offender has been convicted of a 3rd or more DUI within 10 years, he/she is ordered into our DUI Court. It's working ok for us. However, we have gotten some push back from defense attorneys on this issue. What we do see are deals being made to reduce that 3rd charge to a lesser offense so that offenders are not "ordered" to enter the program. This [negotiation] occurs because the prosecutors may have legal issues that create problems for them to take that case to trial. We will see in a few more years just how effective this process will be for us in making it mandatory. Shauna McCloskey Therapeutic Specialty Courts Coordinator Clark County District Court shauna.mccloskey@clark.wa.gov

6 Here in the State of Washington, Spokane County moved to a mandatory DWI Court a few years ago on a 3 rd DUI offense w/in 10 years. I ve been discussing this exact concept with my DUI Court team in the last few months and hitting resistance. I d like to learn more. I ve been proposing a DUI Court for offenders picking up their 3 rd or 4 th DUI within 7 years (that coincides with our sentencing structure here in the state). Thurston County Ellen Goodman Program Administrator, DUI/Drug Court Programs Thurston County Superior Court Olympia, WA goodmae@co.thurston.wa.us Here in Thurston County, Washington we have a DUI/Drug Court. Shelly L. Fox Special Projects Manager Office of Court Operations Madison, WI Shelly.Fox@wicourts.gov WISCONSIN I am not aware of any of our Wisconsin OWI courts having a model similar to that proposed by Alaska. WYOMING Enid White Supervised Treatment Program Manager State of Wyoming Court Behavioral Health Division Cheyenne, WY enid.white@wyo.gov In Wyoming, all participants who enter the programs must do so voluntarily. This is statutory. Here is the language from Wyo. Stat (c) and (d): (c) Participation in a program shall only be with the consent of the referring judge, the participant and the prosecuting attorney, and acceptance of the participant by the program team in accordance with a written agreement between the participant and the program team. The agreement shall include the participant's consent to release of medical and other records relevant to his treatment history and assessment that meets the requirements of 42 U.S.C. 290dd-2(b), 42 C.F.R. part 2.31 or W.S (c), as applicable. Prior to a participant's entry into a written agreement, the participating judge shall inform the participant that he may be subject to a term of probation that exceeds the maximum term of imprisonment established for the particular offense charged, as provided in W.S and

7 (d) Nothing in this act shall confer a right or an expectation of a right to participate in a program, nor does this act obligate a program team to accept any proposed participant. Neither the establishment of a program nor anything herein contained shall be construed as limiting the discretion of a prosecuting attorney in regard to the prosecution of any criminal or juvenile case. Peggy Hora Judge (Ret.) Superior Court of California Walnut Creek, CA peggyhora@sbcglobal.net OTHER In California, they are for High Risk/High Need repeat offenders and first timers with high Blood Alcohol Readings. For instance, in California, it s not a felony until the 4 th time and then it s a wobbler (misdemeanor or felony). Whether misdemeanor or felony, depending on state law. DWI courts are specifically for repeat offenders or first offenders with high BACs (typically.15 or >) ************************ We welcome any additional information and/or perspective readers may have on this topic. BJA Drug Court Clearinghouse Justice Programs Office, School of Public Affairs American University 4400 Massachusetts Avenue NW, Brandywine, Suite 100 Washington D.C Tel: 202/ Fax: 202/ justice@american.edu Web:

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*Time is listed as approximate as an offender may be charged with other crimes which may add on to the sentence.

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