One batch of drunken driving cases reflects flaws, futility of system

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1 December 11, 2011 DUI: A sobering week One batch of drunken driving cases reflects flaws, futility of system By John Hult Amanda Hood fell into the police officer who arrested her for third-offense DUI. She rear-ended a car at 41st Street and Kiwanis Avenue. Reeca Rettig blacked out the night of her first DUI. A new mother, she vows to never drive drunk again. Lavar Blackmon was convicted of fifth-offense DUI after almost sideswiping an undercover police car. He s in prison. Biniyam Liben was acquitted of second-offense DUI. Police couldn t prove he had driven the running car in which they found him. Gak Kuir Gak, a Sudanese refugee, missed a half dozen court appearances for his second DUI. He s a fugitive and hasn t been sentenced. These are a handful of the 61 people who made their first appearance in a Sioux Falls courtroom during the week of Jan on charges of driving under the influence of alcohol. The Argus Leader picked a week of cases to examine how authorities deal with drunken driving, South Dakota s most common, costly and time-consuming criminal offense. The arrests and legal result for the drivers who appeared in court that cold, snowy week last winter run the gamut. Almost a year later, most have paid their fines, served their time and moved out of the court system. Decades of aggressive rhetoric against drunken driving led to tougher penalties, but jail time remains scarce. In South Dakota, the most common prevention tool is the highly regarded 24/7 sobriety program. Since its inception six years ago, the state has seen a drop in alcohol-related traffic fatalities and new DUI cases. Yet even the program s supporters recognize its limitations. People can continue to drink, and there s little recourse if they don t show up for testing. The experiences of the 61 drivers 35 of whom were arrested for first offense offer a glimpse into how Minnehaha County courts handle DUI cases: The system is geared to allow people to keep their freedom. It s cheaper for taxpayers and, experts say, it s more effective than jail. A number of options help and punish offenders, from 24/7 to alcoholmonitoring bracelets, treatment, intensive probation or incarceration. The county tends to endorse a one-size-fits all approach to deal with drunken drivers at each level regardless of an offender s needs. Under most circumstances, a first offender takes a DUI course. A second conviction sends them to treatment before sentencing. A third offense means more treatment 1 of 5 12/11/11 3:50 PM

2 and about six months in jail. Offenders who have money sometimes are monitored more closely for alcohol use, which can help them stay sober. They have more options for alcohol treatment and often have better support systems than people without jobs or stable incomes. Much is riding on the success of the system for dealing with DUIs. Last year, alcohol-related fatalities accounted for more than one-third of the 140 deaths on the state s roads and highways. Threat of penalty and treatment isn t always enough to stop the drivers who scare society the most, the people who won t or don t respond and simply insist on driving drunk. Almost 1 in 3 felony cases The crime drains resources. About 10,000 cases are filed each year in the state. In Minnehaha County, almost one of every three felony cases is a DUI. Probation officers spend about 40 percent of their time dealing with repeat offenders and every lawyer in the state s sttorney s office works the cases even though a grant-funded DUI prosecutor was hired last year. DUI courts and treatment programs designed to tackle addiction can help the worst offenders. There are skeptics, however, who say trying to help those who ve rejected past assistance is a losing game, and the answer is longer prison sentences. Larry Long, a 2nd Circuit Court judge, championed the 24/7 concept as South Dakota s attorney general. Long said the court system s approach must continue to evolve and use whatever combination of monitoring, treatment and punishment shows the most promise. We re all trying to do the same thing: To get these people out of the system, he said. The way you get them out of the system permanently is to get them past the drug use and past the alcohol use. Options for offenders A first-offense DUI in South Dakota is punishable by up to a year in jail and a $1,000 fine. A second offense carries the same possible jail time, and offenders can lose their driver s license for a year. A third DUI draws the potential of a two-year prison sentence, a fourth bumps possible prison time to five years, and a fifth or more means up to 10 years. But few offenders are treated so harshly. In Minnehaha County, prosecutors try to funnel people through alternatives and give offenders a chance at reforming before resorting to costly incarcerations, State s Attorney Aaron McGowan said. Prosecutors routinely ask for less prison or jail time if a person has completed an alcohol-treatment program, and judges are willing to delay sentence hearings until treatment is complete. There s certainly going to be those who just go through the steps so they can have a lesser sentence, McGowan said. But you also hope that they pick up on something that s going to make them more successful or that they ll meet somebody that s got a story to tell that will trigger them to say, This is not how I want to live my life. Even repeat offenders are given several chances to get clean before prison becomes a serious possibility. Of the group of 61 people charged with DUI that the Argus Leader studied, two of the four people who went to prison were incarcerated for violating the terms of previous suspended sentences, not for drunken driving. 2 of 5 12/11/11 3:50 PM

3 Two five-time offenders, Blackmon and Richard Walking Jr., were given prison sentence for their DUIs. Of the 20 who did jail time, most did fewer than 10 days. 24/7 redefines approach The 24/7 sobriety program is part of the reason that many offenders face less jail time. It is designed to address public safety and addiction and it has fundamentally changed Minnehaha County s handling of drunken driving since the pilot project launched in The program requires most participants to pass a breath test at the county jail twice a day at a cost of $1 per test to prove their sobriety. Generally, people ordered to participate go to the jail for testing in the morning and evening. Other people, as part of 24/7, wear a Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet at a cost of $6 a day to test for alcohol use once every hour. Those caught drinking by either means go to jail and must ask a judge to give them another chance to get out. Twenty-two of the 61 people charged in late January were ordered to join 24/7. Most participated as a condition of pretrial release. That was the program s initial selling point, but its uses have expanded since Seven of the 19 who were charged with a second offense, for example, avoided some or all jail time by wearing SCRAM bracelets or taking breath tests during the final days of their sentence. Long said he thinks the program has helped give problem drinkers a chance to clear their heads and has cut the chance that a repeat offender will endanger others at least while they re participating. Since 2005, almost 20,000 people statewide have taken breath tests twice a day with an overall pass rate of 99 percent. But that doesn t mean people are staying completely sober, and the judge knows that. Part of the reason the pass rate is so good is that the person has 12 hours to sober up, Long said. A stricter alternative Michael Wrage spent five months on 24/7 after his arrest on a second-offense DUI. He never failed a breath test, either, but admits, I maybe had a six-pack a time or two. Wrage quit drinking entirely for a few months, though, and during that time he wore a SCRAM bracelet. The device detects alcohol use by testing skin temperature and sweat once an hour. The results are sent to a company in Denver, where employees analyze the results and notify law enforcement of violations. One downside to a SCRAM bracelet is that it takes 24 hours for law enforcement to be notified of a violation. Statewide, 77 percent of 24/7 participants who opt for a bracelet have no violations. Money changes options The fact is, the more money an offender has, the more treatment options they have to earn leniency from the court or get help if they genuinely want to address their drinking problem. The state pays treatment providers to take clients who fall within certain income guidelines, said Karen 3 of 5 12/11/11 3:50 PM

4 Johnson of Choices Recovery Services, but the money available to providers through annual contracts often runs out before the need does. The money shortage sometimes leaves those who qualify for aid shopping for help. Choices Recovery increases its price for low-income clients from $390 to $600 when the state aid money runs out, usually about halfway through the fiscal year. This year, funding for treatment took a 4.5 percent cut because of state government budget woes. We re seeing more people who need treatment, and there s less money to pay for it every year, said Gary Tuschen, director of the Carroll Institute. Traci Smith, a Minnehaha County public defender, and counselors say stress about money often is an aggravating factor for people with addiction. Some clients cite the daily fees of 24/7 and presentence treatment costs as reason for relapse. Holes in system Some of the 61 cases studied point to another persistent issue for the 24/7 model: People who stop going often aren t promptly caught. Several times a week, someone blows hot, as a failed test is called, then runs to avoid jail. And each day, Minnehaha County Sheriff Mike Milstead pulls a patrol deputy to take a few hours to check on a list of no-shows and failures. But the deputies can do only so much. A warrant can be issued for violators if they aren t found, Milstead said, but they re not high-priority warrants. Despite its shortcomings, Long and Milstead say working the 24/7 concept into the state s approach to drunken driving has had a huge positive effect. A study of the 24/7 program from Mountain Plains Research in Salem shows that people who spend time on the program are consistently less likely to be arrested for a new DUI in the three years following their conviction. Have we saved some lives by keeping somebody sober for six months who otherwise would have gone out and killed someone? That s pretty speculative, but I feel like we have, Long said. Intensive probation A pilot project started in Pierre called STOP DUI also shows promise. The court-based program involves strict and intensive probation for felony DUI offenders who fit a profile of addiction and want to change their lives. The DUI court model tries to help addicts find the three things counselors and probation officers say are integral to maintaining sobriety: a job, a place to stay and a support system Lori Wilbur was a judge for the DUI court from 2009 until her appointment to the South Dakota Supreme Court earlier this year. People under her supervision were on 24/7, received help with job placement and mental health concerns, saw the judge once a week and were given incentives such as later curfews or lower fines in exchange for continued sobriety and employment. The emphasis is on dealing not only with the drinking problem that brings these people to court but all the other problems they ve got, Wilbur said. Our concern is always public safety, but we re also 4 of 5 12/11/11 3:50 PM

5 interested in giving them the tools that they need to succeed outside the four walls of the prison. Prison the final choice But there is this frustrating reality of addiction acknowledged by counselors, prosecutors, judges and defense lawyers: Some people simply won t stay clean no matter what kind of deterrents and help are offered. McGowan said those who fail to get clean, or at least to give their keys to someone else when they start drinking, can be given only so many chances before prosecutors gear up to get them off the street for as long as possible. I think once you get to the fourth, fifth or sixth (DUI), you have to house them, McGowan said. At that point, we ve tried everything else to protect society. Glenn Brenner, state s attorney in the Pennington County, also said he thinks public safety demands longer prison terms for some repeat offenders. One of the 61 offenders tracked by the Argus Leader was Lavar Blackmon. He went to trial for a fifthoffense DUI in September. Jurors found Blackmon guilty and Judge Peter Lieberman sentenced him Nov. 29 to eight years in the state penitentiary. You will continue to be a danger to your fellow citizens and you will continue to be a danger to yourself, Lieberman said. During the sentencing hearing, Blackmon told Lieberman he still thinks he can change. The 32-year-old who once held down two jobs to help his wife go to nursing school wants to return to college some day and study engineering. I am an alcoholic, but I m many other things along with that. I m a husband, I m a son, I m an uncle. I m part of all my relations, he said. This problem hasn t defeated me, but it has been a struggle. Additional Facts About this report Argus Leader criminal justice reporter John Hult followed one week of cases of driving under the influence of alcohol through the Minnehaha County court system. The 61 cases were those in which the defendant made his/her first court appearance during the week of Jan The goal was to get a sense for how quickly cases are disposed, how the punishments differ and to what degree the 24/7 program and other treatments help in preventing repeat offenses. Argus Leader staffers attempted to contact all 61 of those charged with DUI. Some chose to talk on the record about the circumstances and disposition of their cases, others did not. But all 61 were included in this report. Contact Hult at or at of 5 12/11/11 3:50 PM

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