DUI"s In Drug Court

kmurrant@idahopress.com
Sunday, January 31st, 2010

CANYON COUNTY — "Only a year ago, if a defendant pleaded guilty to a felony DUI in Canyon County, he essentially had two options: prison or probation. Prison provides punishment, but does it offer sufficient treatment for rehabilitation? Probation provides a certain level of treatment, but with overwhelming caseloads, could offenders get lost in the shuffle, or get away with continued substance abuse?

On Jan. 12, 2009, Canyon County Prosecutor John Bujak decided that felony DUI offenders should be given another option: drug court. Though once a skeptic of the alternative, community treatment-based program, Bujak said data shows the program brings good and lasting change for offenders and society.

What is drug court?

Caldwell teacher's case

Caldwell High School teacher Jon Kelpin, who was arrested for felony DUI on May 31, 2009, began drug court on Dec. 18, 2009, after pleading guilty to the felony. Judgment is withheld on that charge, and if Kelpin successfully completes drug court, that case will be dismissed. The case can still be used for prosecution purposes in the future if he reoffends.

Kelpin's license is suspended, and he has been in custody at the work release center in Caldwell. He could receive a restricted driver's permit after 45 days per Idaho law.

Kelpin also received a withheld judgment for misdemeanor DUI on July 13, 2007, and was convicted of a misdemeanor DUI on Jan. 17, 2008.

Kelpin's defense attorney, Charles Crafts, said he believes his client is well suited to be successful in drug court.

"Kelpin, by all accounts, is this incredibly responsible person with this one aspect of his life that has gotten away from him a little bit. I think his personality and the fact that he's been (teaching) for 30 years, he certainly lends himself to be more successful in the program because it requires such a high degree of responsibility," he said.
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*Editor's note: List of DUI offenders removed from this article. May be seen by clicking on Title.
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BY THE NUMBERS

DUIs in Idaho

• In 2008, there were 167 felony DUIs filed in district court and 1,307 misdemeanor DUIs filed in magistrate court in Canyon County. Statewide, 12,655 felony and misdemeanor DUI cases were filed in district court.

• 640 DUI offenders participated in Idaho problem-solving courts in fiscal year 2009.

• In 2008, 91 offenders graduated from Idaho DUI courts — 90 percent of those who left the program.

• 576 offenders graduated statewide from drug and mental health courts in 2009, up from 425 graduates in 2008.

• In FY 2009, 1,492 adults in Idaho entered into a drug court program. Of those, 1,293 graduated from or remained in drug court and mental health court; 199 did not successfully complete the programs.

• Information provided by Norma Jaeger, Idaho's director of problem-solving court and community sentencing alternative. Information provided by Norma Jaeger, Idaho's director of problem-solving court and community sentencing alternative.

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Drug court is a problem-solving court that aims for holistic rehabilitation for criminal drug addicts and alcoholics. Canyon County's drug court only accepts felony-level offenders, although other courts in the state also handle misdemeanor crime.

Canyon County has several problem-solving courts, including mental health court, youth court and truancy court. These courts, which use community treatment, are more cost effective than imprisonment, according to Norma Jaeger, Idaho's director of problem-solving court and community sentencing alternative. According to 2007 data, the average felony drug court offender costs $6,836 per year, while the average prison inmate costs $20,382.

It also helps ease the overcrowding of the regular courts and prisons, Jaeger said. About 1,500 people were in program-solving courts in 2009. Without that option, most of them would have been incarcerated, she said.

Idaho Sen. Patti Anne Lodge, who earned the Idaho Drug Court Leadership Award in 2006 for her work with the specialty court, said the program is a cost-effective and beneficial option for taxpayers.

"If we can save taxpayer money and create an accountable citizen ... I'd rather have them there than in jail where they're not learning to be accountable," Lodge said. "(It's) one of the most cost-effective ways to process people and bring them back into society as productive citizens. Drug courts work; I'm totally supportive."

Who goes to drug court?

Idaho law limits who is eligible for drug court: no violent offenses or crimes with gun use and no sex offenses. When a defendant fits within the legal criteria, Canyon County Prosecuting Attorney Chief of Staff Tim Fleming, who screens all drug court applicants for the county, looks for other indicators of a potential good fit.

"If a person is ready and willing and able to accept responsibility, waive their defenses and is ready to deal with their addictions" they make a good candidate, Fleming said. He also weighs whether the person needs the intense level of treatment drug court provides, or if he or she could successfully complete a regular probation, which has less intense accountability.

Jaeger said drug courts initially targeted first-time offenders, but as data was collected, the court changed its focus.

"Drug courts are most effective for higher risk, in terms of addiction and more significant criminal or offense histories," Jaeger said. "Research shows people with a first or second offense generally do as well on (regular) probation. It's the harder core that requires the significant structure and regular accountability that drug court provides to have positive outcomes."

Carrots and sticks

Drug court is rooted in the method of rewards and sanctions — carrots and sticks, Fleming calls it. In drug court, participants' judgments are withheld — if they graduate from the program, the case is dismissed. This dismissal is the ultimate carrot drug court participants work toward, Fleming said.

Magistrate George Southworth, the current presiding judge of drug court, volunteers his time to take on the additional 70-plus drug court cases — without a reduction in his regular caseload. Each week, he reviews the defendants' progress in court.

There are punishments for offenders who don't follow the rules: everything from essay-writing to jail time and even expulsion from the program. But Southworth said that drug court participants come from all walks of life and backgrounds — for some, this is the first time in their life they are required to follow a set of established rules.

"We don't kick somebody out of drug court until we've given them every chance to comply. They don't change overnight," he said.

However, drug court is not designed to be a walk in the park.

"It's much more strenuous, more difficult," Fleming said of drug court compared to regular probation. "It's not a slap on the hand."

For Canyon County DUI offenders in drug court, Southworth mandates 90 consecutive days in jail or work release, triple the minimum time required by law.

"People in drug court are not pampered. They realize this is a serious crime. We take it seriously," Southworth said.

Another carrot, approved by Idaho lawmakers last year, is a restricted driver's permit, which can be issued to a drug court offender after a 45-day license suspension. Outside drug court, offenders lose their licenses for at least one year.

Southworth said with Idaho's lack of public transit, it's hard to expect defendants to make all of their counseling sessions, alcohol testings, court appearances and probation meetings if they can't drive.

A violation of driving privileges automatically boots offenders out of the program, and they will be resentenced in regular court. Fleming said it often means prison time for the offender.

Does it work?

Both national and local statistics show that, whether it relates to drugs or alcohol, recidivism is lower among offenders who complete drug court compared to those who go to prison or are on regular probation, Fleming said.

According to a 2008 study submitted to the Idaho Legislature, Idaho DUI offenders are half as likely to reoffend after completing DUI court versus completing regular probation.

High-risk offenders who don't receive treatment through drug court either tend to not follow through with treatment, drop out or fail to follow conditions of probation, Jaeger said. But in drug court, "they stay in treatment long enough, are held accountable consistently and regularly enough to really change their behavior," Jaeger said. "The treatment effect is more than skin deep."

"Drug court — it gets right to the heart of the problem. They are there to treat people and help them overcome their addictions, period," defense attorney Charles Crafts said.

Continued from 12 MAIN

And treatment also deals with more than the person's addiction.

"It's really focused on all the characteristics that makes a person pro-social, less likely to have attitudes toward committing crime ... not just abstaining from the use of alcohol," Jaeger said.

She said it's common for repeat DUI offenders to have other attitude adjustments to make.

"They think, 'Well, I can drink, I just need to be more careful, make plans to not drive.' When they do drink, their judgment becomes impaired. The decisions they make in that condition are not good decisions."

Another benefit to rehabilitation through problem-solving courts, Jaeger said, is that offenders can keep social supports.

"Having a job, having a family, taking care of your bills are protective factors, assets in making a recovery," Jaeger said. "Those social supports are important in making lasting behavior change. The more supports that you can keep for a person, the greater likelihood that they can establish a lasting recovery."

Crafts said the community-based treatment in problem-solving courts is a "progressive-thinking model" for rehabilitating offenders.

"I think that we have a tendency when someone gets in trouble to just turn around and want to punish them," Crafts said. "Drug court — it's definitely a punishment to be in drug court, but they do build in these motivations for people to be successful in the program. ... It's much more of a progressive-thinking model of rehabilitation."

Some voice concern

Miren Aburusa, victim advocate with Idaho's Mothers Against Drunk Driving, said her agency supports the use of drug courts "post adjudication," but is concerned that judgments are withheld and, upon graduation, dismissed for DUI offenders in drug court.

"I don't think it should be used to avoid a record of conviction or license sanctions," Aburusa said. "There's close supervision, lots of interaction, I think that's a success ... I don't think it should be used as an opportunity for someone to clear their record."

Aburusa also said she fears not having a record of conviction could lead to fewer restrictions for defendants who reoffend because a judge wouldn't know about past offenses.

But Fleming said withheld judgments are still fare game for charging enhancements on any future charges. By law, if a felony DUI drug court graduate gets another DUI within 15 years, it's a felony charge, Fleming said.

"If the concern is that the state can't hold them accountable in the future, they're wrong. We can," he said.

Aburusa also said she wants to see Idaho mandate ignition interlock devises — 11 states require this — rather than just license suspension.

"I don't think that license suspension is the answer," she said. "We support mandatory interlock on all drivers. Someone who's had their license revoked, it doesn't stop them from drinking and driving, but if we can get an interlock, that saves lives."

Lodge said she thinks a mandatory interlock law has merit, but she would want to know where funding would come from.

"We can't have one more thing that's costing the taxpayers more money," she said.

'Drug courts work'

Because the DUI participants are a new addition to Canyon County, none of them has graduated from the program yet. Fleming said the program typically takes about 18 to 24 months to complete.

Bujak said when he first learned of drug courts more than a decade ago, he was skeptical.

"I thought it was a terrible idea," Bujak said. "I remember hearing about drug court and thinking it was 'hugs for thugs,' a reward for people breaking the law."

But Bujak said as data began to support the real, positive change drug court makes for offenders, his mind changed.

"Drug courts work, and I support them wholeheartedly," he said.

As a defense attorney, Bujak said he would often work to get his clients into drug court. But he said some who weren't prepared to give up their drug addictions balked at the thought of going.

"They'd say, 'I don't want to do drug court, it's too hard,'" he said.

Crafts said about half of the people he talks to about drug court are hesitant to participate because they think it's too difficult to complete. Nevertheless, he recommends drug court for every client who is eligible "in any way shape or form," and applauds Canyon County's move to include DUI offenders in its program.

"I give a lot of credit to John Bujak for putting people into drug court with DUIs," Crafts said. "I think that kind of progressive thinking, to me it's a no brainer. ... Some counties choose not to do that, some do and I'm glad that he's made that option available."

Fleming agreed.

"This office very much believes in specialty courts, because the data supports them," Fleming said. "Communities that have drug courts are safer communities than those who don't."

Sentenced on felony DUI in drug court

• Judgment: Defendant pleads guilty to a felony and judgment is withheld. If the defendant is referred from a felony probation violation or comes from a retained jurisdiction (Rider) program, conviction has already been entered and judgment will not be withheld.

• Jail/prison time: Mandatory 90 consecutive days in jail or, if employed, work release. Additional discretionary jail time of 180 days, and judge can add more if needed.

• Probation: Lasts for three years. Ends when defendant graduates from program. The average person graduates after 18 to 24 months.

• Driver's license: Suspended for three years. Can receive a restricted driver's permit after 45 days per judge's discretion. Restricted permit requires interlock device installation, and participants must be current with fees and insurance. Permit may be revoked if defendant violates permit requirements or fails to comply with other drug court mandates.

• Fees: $40 per week, plus probation supervision cost of $25 a month (about $3,330 to $4,440 total, on average). Judge can implement sanctions if a participant falls behind.

• Testing: Check in by phone each morning for potential testing. Required two tests per week, average of three times a week for new participants. Substance abuse tests and breath tests. Also may be randomly tested by probation officer on home visit or office visit.

• Treatment/counseling: Must attend at least three AA meetings a week. Must attend 200 to 250 hours of group and individual counseling through the course of the program. New participants attend counseling at least two to four times a week.

• Other requirements: To graduate, offenders must have a GED or high school diploma, maintain full-time (35 hours or more) employment for one year, remain sober for 180 consecutive days, pay fees and costs in full and complete an extensive community service project approved by the judge. Unemployed participants are required to do 20 hours a week of community service until they gain employment. Participants also take social classes (like budgeting class), family group sessions and attend alumni group.

• Contact with court, probation officer: Appear in court once a week. Check in with probation officer at least once a week. Officer can make additional appointments through office visits or house calls.

• Last step: Felony charge is dismissed once participants graduate from the program. Defendants whose judgment was withheld do not have a conviction on their record.* Defendants who entered the program on a felony probation violation will go to unsupervised felony probation or discontinue probation; those cases are not dismissed and defendants retain convictions. Civil rights suspended during judiciary process are reinstated.

* Although cases are dismissed, they are still considered for future charges and can be used for charging enhancement purposes. According to Idaho Code 18-8005, if a person received a withheld judgment on a felony DUI and gets another DUI within 15 years, the new offense will automatically be charged as a felony.

Sentenced on felony DUI in regular court

• Judgment: Pleads guilty to a felony and is either convicted and sentenced to prison, prison with a retained jurisdiction (Rider) or to probation, or judgment is withheld and the defendant goes on probation.

• Jail/prison time: Minimum 30 days in jail, 48 consecutive hours. Maximum 10 years in prison.

• Probation/parole: Up to 10 years

• Driver's license: Suspended one to five years after release from incarceration. Interlock device installation after mandatory suspension ends and during any remaining probation time, per judge's discretion. Must have proof of insurance to drive while on probation.

• Fees: Fined up to $5,000

• Testing: No required testing. Typically judge authorizes probation officer to assign testing.

• Treatment/counseling: No required treatment or counseling. Typically judge authorizes probation officer to assign treatment or counseling.

• Other requirements: No required classes. Typically judge authorizes probation officer to assign classes.

• Contact with court/probation officer: DUI probationers are usually placed on high-level probation. No required court appearances. Two separate contacts with probation officer a month, at least one of which is face to face. One home visit every three months; must visit within 30 days of a change of address. One employment verification every three months; must verify new employment within 30 days of job change. One treatment verification every three months; officers usually receive updates once a month or even once a week from treatment providers.

• Last step: If the defendant received a conviction, was placed straight on probation and complied with the terms and conditions of probation at all times, a judge can dismiss the case. Civil rights suspended during judiciary process are reinstated. If the defendant received a conviction, completed a Rider, then complied with the terms and conditions of probation at all times, a judge could amend the felony charge to a misdemeanor. Contact with court/probation officer: DUI probationers are usually placed on high-level probation. No required court appearances. Two separate contacts with probation officer a month, at least one of which is face to face. One home visit every three months; must visit within 30 days of a change of address. One employment verification every three months; must verify new employment within 30 days of job change. One treatment verification every three months; officers usually receive updates once a month or even once a week from treatment providers.

• Last step: If the defendant received a conviction, was placed straight on probation and complied with the terms and conditions of probation at all times, a judge can dismiss the case. Civil rights suspended during judiciary process are reinstated. If the defendant received a conviction, completed a Rider, then complied with the terms and conditions of probation at all times, a judge could amend the felony charge to a misdemeanor."