New DUI Program Requires Mandatory Daily Monitoring: Protection For The Public Or Undue Burden On Offenders?

Submitted by Darren Smith, Guest Blogger

A pilot program has been initiated in four Washington counties and two municipalities. Essentially the program requires those convicted of a second DUI offense are required to 24/7 daily monitoring consisting of a twice daily visit to a jail for a breath test or an ankle monitor capable of reading breath samples. Both options are mandated at cost to the offender. A newly created state law, effective January first, provides for this program named the 24/7 Sobriety Program Pilot Project.

The program is the result of repeat DUI offenders who have posed significant risk to the public and have shown to not be easily deterred from future violations by present statutes and sentencing. Yet some may question the effectiveness of the program and whether it places an undue burden on offenders who might not have the means to comply.

In 2013 the state legislature passed laws creating the program and that it be maintained by the Washington Traffic Safety Commission with consultation with the Washington Association of Sheriffs and Police Chiefs. The pilot program is to be run for three years and participation is subject to willing participation by law enforcement agency administrators. In 2017 the program is to be statewide.

Pertinent elements to this article of the program are as follows:

1. RCW 10.21.055 requires that a person arrested for DUI, Physical Control of a Motor Vehicle While Intoxicated, Vehicular Homicide, or Vehicular Assault who has a previous conviction for these offenses as a condition of being released from trial or arraignment be subject to having an Ignition Interlock device on vehicles they own and operate and / or participate in the 24/7 Sobriety Program. Upon acquittal or dismissal of charges the court shall authorize removal of the interlock and end participation in the 24/7 program.
2. RCW 36.28A.330 includes definitions “24/7 electronic alcohol/drug monitoring” means the monitoring by the use of any electronic instrument that is capable of determining and monitoring the presence of alcohol or drugs in a person’s body and includes any associated equipment a participant needs in order for the device to properly perform. Monitoring may also include mandatory urine analysis tests as ordered by the court” and “24/7 sobriety program” means a twenty-four hour and seven day a week sobriety program in which a participant submits to the testing of the participant’s blood, breath, urine, or other bodily substances in order to determine the presence of alcohol, marijuana, or any controlled substance in the participant’s body.”
3. RCW 36.28A.360 The Washington association of sheriffs and police chiefs may adopt policies and procedures for the administration of the 24/7 sobriety program to: (2) Establish fees and costs for participation in the program to be paid by the participants.
4. RCW 36.28A.360 (1)(a) Any daily user fee, installation fee, deactivation fee, enrollment fee, or monitoring fee collected under the 24/7 sobriety program shall be collected by the sheriff or chief, or an entity designated by the sheriff or chief, and deposited with the county or city treasurer of the proper county or city, the proceeds of which shall be applied and used only to defray the recurring costs of the 24/7 sobriety program including maintaining equipment, funding support services, and ensuring compliance (2) All applicable fees shall be paid by the participant contemporaneously or in advance of the time when the fee becomes due.
5. RCW 36.28A.380 The court shall not waive or reduce fees or associated costs charged for participation in the 24/7 sobriety program.
6. RCW 36.28A.390
   • (1) A participant who violates the terms of participation in the 24/7 sobriety program or does not pay the required fees or associated costs shall:
     • (a) Receive a written warning notice for a first violation;
     • (b) Serve a term of two days imprisonment for a second violation;
     • (c) Serve a term of up to five days imprisonment for a third violation;
     • (d) Serve a term of up to ten days imprisonment for a fourth violation; and
     • (e) For a fifth violation, the participant shall serve the entire remaining sentence imposed by the court.
   • (2) A sheriff or chief, or the designee of a sheriff or chief, who has probable cause to believe that a participant has violated the terms of participation in the 24/7 sobriety program or has not paid the required fees or associated costs shall immediately take the participant into custody and cause him or her to be held until an appearance before a judge on the next judicial day.
7. RCW 46.61.5055 Penalty Schedule for Alcohol and Drug Violators (Traffic Law). This statute has a matrix that is too complex for discussion here but in essence it addresses the punishments for alcohol traffic convictions. Succinctly for the 24/7 program it directs the court, based upon the prior history of the defendant, blood alcohol level post arrest, and other requirements to impose home monitoring for generally 30 days and in some cases 364 days. If the court decides to waive the 24/7 home monitoring it must explain the decision and shall substitute additional jail time in lieu of the monitoring requirement.News reports indicated the current costs to the defendant are $4.00 per day for the breath test performed at a police station or jail and $12.00 per day for an ankle monitor.

There are many issues raised by this program. Frequently it is the case where a judge as a condition of pre-trial release will order the defendant to abstain from alcoholic beverages subject to contempt if violated. Ignition Interlock devices have been around for decades and are often used for various offenses requiring their use. An interlock device is one installed into the defendant’s vehicle and it requires a breath sample showing minimal alcohol on breath before it will start the vehicle. Defeating the interlock or permitting another to provide the sample is a crime. Under the interlock system the defendant is only required to provide a sample if driving.

Monitoring 24/7 addresses the issue where a person might become intoxicated in violation of terms of release and acquire another vehicle and drive under the influence again. Yet the defendant might find another method to defeat the home monitor as well.

But more importantly are some large deviations from standard criminal procedures regarding pre-trial or pre-arraignment release. The defendant is required under these new laws and programs to submit at his or hew own cost to this program; that is pay for this monitoring prior to a conviction. Since trials are sometimes months later in the future, especially if the defendant waives a speedy trial the cost can add up quickly. Even if the defendant did not waive her right to a speedy trial, and is not incarcerated, the prosecutor can bring the case to trial up to ninety days after arrest. If the defendant selected the ankle monitor device at the current rate he would be subject to per diem fees of $1,080.00 and could in principle and in practice have their case dismissed or found not guilty. Yet, they are subject to arrest if the payment is not made.

Another problem relates to practicality of the law. Chapter 46.20 RCW contains a statute where if a driver is arrested for an alcohol criminal traffic offense, such as DUI, and they provide a breath test resulting in a reading above the state presumptive intoxication rate (.08) the Department of Licensing will suspend the driver’s license for ninety days. If the defendant refuses the breath test, the DOL will suspend the license for one year. How does this relate to our topic? If the pre-trial defendant is required to participate in the 24/7 program and is of very low income, the defendant might not be able to afford the twelve dollar monitoring service and might elect to have the testing at a local jail. A problem with this is the location of the jail. Counties such as Chelan, has only one jail facility located in Wenatchee, near the extreme south of the county. A person having to travel to receive the testing at the jail might have to travel an hour or more one way. Furthermore, that person is prohibited from driving and would twice daily have to arrange for another person to transport them, or to rely on limited public transit services. They are then forced into the $12.00 ankle monitoring service.

In paragraph 2) above the statute permits bodily fluids as being used as well as blood to determine alcohol or substance use. Washington State courts require a search warrant to obtain samples taken from inside the defendant’s body with a few exceptions (such as DUI unconscious or DUI with likelihood of death) yet this clause implies the test can bypass this requirement. Furthermore, as permitted of the state by the statute, the home monitoring test can, though implementation might differ, require the defendant to submit to tests at a very inconvenient hour or at times that disrupt their work and an employer.

Section 3) provides a non-government agency, the Washington State Association of Sheriffs and Police Chiefs to implement rules and designate the fees to be charged to the defendant. It is not the courts, as in the case of traffic infraction (tickets) penalties as the state supreme court designates, or even to a limited degree the judge, that decides this. In the case of Ignition Interlock devices licensed and certified private vendors compete for defendant’s business to provide the interlock device. Here a fourth branch of government does. In fact, it is so hard that under paragraph 5) above the court itself is prohibited from lowering or eliminating the cost to the defendant. Furthermore the statute reads the local agencies will provide the defendants the equipment for the ankle brace technology which subjects the defendant to paying a multitude of other fees including installation fees, monitoring fees, and, absurdly, disconnection fees. All of this can happen before or after conviction. If the defendant is found not guilty, or has charges dismissed at arraignment, there is no provision to return the fees paid by the defendant, and the fees can increase at any time under the discretion of WASPC.

Under paragraph 6) some might see as most concerning. Essentially it provides for summary arrest if the defendant fails test or does not pay fees associated with the 24/7 program. In fact, it is so hard law enforcement officers have no discretion and “shall arrest and take the defendant into custody pending appearance before the court.” This is a substantial deviation from decades of criminal procedure in Washington. First, arrests for non-payment of fines, as assessed by courts result in bench warrants being issued. Failures to pay fine for traffic fines only result in suspensions of driver license. Police officers cannot arrest for these failures to pay fines of courts without an arrest warrant issued by that court. But in this new statute, failure to pay a local police department administering the 24/7 program a fee the department, which manages the program, can summarily arrest the defendant. The defendant can also be summarily arrested for failure to pass the breath sampling. Plus, the defendant is mandated to serve time outside the sentencing guideline that might be the purview of the courts ordinarily.

One truly unfair aspect of the testing is that those who cannot afford the more expensive home monitoring option are required to go to the police station or jail for their twice daily test. If they fail the test, they are booked into jail right there and then, while those able to be at home can stay at home and the police will need a search warrant to enter, possibly avoiding the arrest.

While the former system used, the Ignition Interlock Device, was only needed if the defendant chose to drive, the 24/7 system is substantially more intrusive even if the defendant chooses not to drive. Hopefully at least, the home monitoring device is such that it give s 15 minutes warning before the defendant blows into it, in the event he uses mouth wash or a cold remedy so that mouth alcohol does not give a false reading, and the device is capable of distinguishing acetone sometimes in the breath of those with health issues.

Lastly, have we not forgotten the station of those having alcohol dependence? One day they are arrested for DUI, released on pre-trial and suddenly have to submit to twice daily testing and total abstinence from alcohol. Is this even realistic from a practical and medical point of view? Would it result in admissions to hospital those suffering extreme alcohol withdrawal symptoms?

This is a new program as one has to recognize but are the legal and personal costs worth the benefit to the greater society? What do you think?

Sources:

King 5 News

Revised Code of Washington