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Hot Springs City Attorney Brian Albright said Wednesday that he believes the district court is on solid legal ground in sentencing DWI offenders to probation in addition to state-mandated penalties.

His remarks came a day after Little Rock attorneys Chris Burks and Michael Kaiser filed a lawsuit in Garland County Circuit Court contending that the district court's practice of sentencing DWI offenders to probation is a violation of Arkansas Code Annotated § 5-4-301 and Arkansas Code Annotated § 5-4-322 -- and that the requirement that DWI offenders pay probation fees in addition to all other mandatory fines and fees amounts to an illegal exaction in violation of Article 16, § 13 of the Arkansas Constitution.

Albright said the interpretation of the law that Burks and Kaiser used in drafting the complaint is incorrect.

"I pulled the complaint and I've reviewed it, and I'll be filing a response pretty soon, I'm sure," Albright said. "Essentially, what he claims is that the probation fee is an illegal exaction, not authorized by law, and therefore a tax and unlawful. But the crux of it is in paragraph four [of the complaint]."

The section he referenced states: "Specifically, A.C.A. §§ 5-4-301(a)(1)(D) and 5-4-322(b)(1) explicitly state that a court may not place a person on probation as one of the punishments of a DWI conviction under the Omnibus DWI Act, A.C.A . § 5-65-101 et seq."

"Those statutes do deal with a prohibition about probation," Albright said. "But in terms of those two statutes, it's more of a suspension, not terms of post-conviction probation."

Albright said that farther down in the statutes, Arkansas Code Annotated § 5-65-108 does allow the imposition of post-conviction probation as a supervisory tool for DWI offenders.

The statute reads:

"5-65-108. No probation prior to adjudication of guilt.

(a) A circuit court judge or district court judge may not utilize the first-time offender probation provisions under § 16-93-301 et seq. when the defendant is charged with violating § 5-65-103.

(b) Notwithstanding the provisions of § 5-4-301, § 5-4-322, or subsection (a) of this section, a circuit court judge or district court judge may:

(1) Utilize probationary supervision, in addition to the mandatory penalties required for a violation of § 5-65-103, solely for the purpose of monitoring compliance with his or her orders; and

(2) Require an offender to pay a reasonable fee in an amount to be established by the circuit court judge or district court judge."

"Just in a cursory reading, it sounds like we're doing exactly what is required under the law, under the DWI act," Albright said. "We still have to impose the statutory minimums. You can't do this probation in lieu of what the statutory minimums are; they have to follow that. But to make sure that they are complying, like doing their alcohol safety classes and so forth, you can have this probationary monitoring to make sure they are complying with the orders that have been established by the court."

Albright said that judges are bound by the minimum penalties set by the sate Legislature in the DWI statutes.

Upon conviction, Albright said, probation can be used to ensure a person is performing legal obligations such as payment of fines, completion of alcohol safety class, a victim impact panel, and other requirements, but the law prohibits the use of pre-conviction probation as a way of providing an offender with a way to escape or minimize punishment or keep the offense from showing up on the person's record."

"The judge has to apply the statutory minimum penalties associated with whatever level of DWI it is," he said. "But, in addition to that, they're able to to do this probation to make sure that they're monitoring compliance."

On Wednesday, Kaiser told the Arkansas Democrat-Gazette that although the law does allow for post-conviction probation as a tool to monitor compliance, records from Garland County District Court show that the imposition goes further than simple compliance monitoring.

""If you look at 5-65-108, it says you can use a probation provider to monitor the court's orders, and that's it," Kaiser said. "The difference between that and real supervised probation, which is not allowed for DWI's, is found in A.C.A. § 5-4-303."

"That statute lists all the conditions the court can impose as part of a supervised probation -- things like random drug screens, submitting to search of your person, your car, or your home, the threat of being revoked and sentenced to jail time. That is what real, supervised probation is, and that is what Hot Springs is doing," he said.

Kaiser said that in almost all DWI cases since 2015, the district court has ordered those convicted of DWI to submit to random drug and alcohol screening, which he said goes beyond the function of probationary supervision in the statute cited by Albright.

"The court records in these cases don't say the defendant is being placed on probation solely to supervise compliance with the court's orders," he said. "It imposes conditions of the probation like random drug screens, which is not an authorized sentence for DWI."

Kaiser said actual supervised probation terms and the supervisory power of the probation provider to monitor compliance with court orders contained in the DWI statute are two separate things under the law. He said the Garland County District Court is violating the terms of the DWI statute by placing conditions outside of compliance monitoring in its probation orders.

"They're going to try to make that semantic distinction," Kaiser said. "But that would look like someone going to the probation office and only being monitored for paying their fine, completing their drug and alcohol safety education program, and their victim impact class. It would not involve any of the probation conditions in 5-4-303, like random drug screens, which, if you look in every single Hot Springs case that we're dealing with, that was an order of the court."

Kaiser said other supervised probation conditions that are prohibited under the DWI statute may surface as the case progresses, but he said the drug and alcohol screening condition was a red flag that drew his attention.

"Definitely for everyone, random drug and alcohol screenings, which are not allowed," he said. "Every single one."

State Desk on 05/28/2020

Print Headline: DWI sentencing statutes debated

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