In 2002, NHTSA invited representatives from the judicial, executive and administrative branches of state government to discuss issues involved in impaired driving cases including enforcement, prosecution, adjudication, supervision, sentencing, and treatment. The goal was exploration of effective practices and approaches that would improve the delivery of justice in impaired driving cases without compromising the independence of various criminal justice stakeholders.
It is essential for the court to reach out to justice and community stakeholders for support to ensure the successful disposition of the hardcore drunk driving defendant is not done in a vacuum. Reliable communication, rapport and collaboration among criminal justice professionals are also imperative to fair and just dispositions of these cases. Together with
judges, prosecutors, defense counsel, probation officers and treatment professionals, critical information and options can be explored which may otherwise have been overlooked or never properly addressed. The development and facilitation of these relationships will be discussed in the following section, which provides a list of potential agency partners and suggestions on ways judges may collaborate with them.
The first step in developing prevention strategies is to identify and engage major stakeholders. These stakeholders typically include judges, prosecutors, defense attorneys, law enforcement, probation/parole officers, treatment providers, community-based service programs, mental health services, and community leaders. A description of key stakeholders follows.
Judges often have concerns about the ethics of consulting with others. They do not commonly invite colleagues to join in outreach activities because of a fear of criticism or a reluctance to give input into other judge’s dockets. However, once a multi-disciplinary approach has been successfully implemented, sharing the success with other judges and including them is vital and ethical. The judge can serve as a convenor when the ultimate goal is to develop a collaborative approach where each stakeholder’s mission is respected.
Development of effective sentences, timely responses to probation violations, and successful compliance requires an ethically appropriate relationship with prosecutors featuring openness and balance. Issues related to hardcore drunk driving must be discussed in open forums in which the adversarial process is respected and ex parte discussions are avoided. The goal is balanced participation that addresses the administration of justice.
Examples of ethics advisory opinions that set forth ethical parameters for multi-disciplinary group discussion of hardcore drunk driving issues include: Illinois 98-1, South Carolina 23- 2006, and Florida Judicial Ethics Opinion—2004-14. This is to be contrasted with ethical limitations when a judge seeks to speak with prosecutors in a closed meeting or trainingin which only prosecutors are present. In those situations, the judge must be willing and available to train attorneys representing the other defense bar as well.1
To ensure an open and balanced approach, care must be taken to include representatives of the defense bar, particularly those who specialize in the defense of impaired drivers. Care must also be taken to avoid discussion of the cases of individual hardcore drunk driving defendants who may have cases pending before the judge.
The justification for including defense counsel in the multi-disciplinary approach extends beyond the obvious ethical need for openness and balance. Many issues that relate to the efficient disposition of hardcore drunk driving cases are those that relate to the discovery process. Removing impediments that delay or complicate the discovery process assists the defense bar in assessing and discussing the prosecution’s case with their clients, resulting in earlier plea changes or speedier trials. Defense buy-in is essential to the implementation of DWI/Drug Courts.
Law enforcement is the first responder to community crime and serves as the “on the street” eyes and ears of the justice system. They are the professionals that probation, parole, judges, and other justice professionals often rely on for updates regarding individuals who are under probation supervision.
The inclusion of law enforcement in a multi-disciplinary stakeholder approach is important to promote understanding of the enforcement process for hardcore drunk drivers. Law enforcement stakeholders appreciate the opportunity to understand the process by which courts, prosecutors, and the defense bar arrive at the disposition of these cases. They will highlight issues such as the high rate of hardcore drunk driver breath and field sobriety test refusals, more effective and efficient high visibility enforcement programs, how to speed up the discovery process and how to minimize law enforcement wait time in court.
These subjects can ethically be discussed when judges meet with law enforcement in the company of multi-disciplinary stakeholders.4
Legislators and Policymakers
A multi-disciplinary approach to hardcore drunk driving can ethically include lawmakers. Legislation governing the enforcement, prosecution, adjudication and treatment of hardcore drunk drivers is important to judges as well as other criminal justice system stakeholders.
Proposed legislation addressing recidivism, implied consent refusals, and the establishment and funding of DWI/drug courts are but a few of the legislative subjects that can benefit from multi-discipline stakeholder input.3
Substance Abuse Assessors and Treatment Providers
Substance abuse assessors and treatment providers play a crucial role in planning for, intervention and supervision of hardcore drunk driving offenders. Ideally, these offenders should be screened and, when indicated, receive a comprehensive alcohol/substance abuse assessment by a licensed or certified assessor. It is essential that the results of these assessments be shared with the court and probation officers for inclusion in the development of pre- sentence reports as well as supervision and treatment plans. Additionally, many hardcore drunk driving offenders will require treatment interventions (e.g. detoxification; individual, group, or family alcohol or drug counseling).
The formation of working relationships with treatment providers will allow substance abuse assessors to contribute to the development of measureable treatment goals. Including assessment and treatment providers with other stakeholders at regular meetings promotes the open and balanced multi-disciplinary approach. One state’s ethics advisory committee has even approved of a judge accepting a position as an unpaid board member for the local DWI countermeasure school that provides substance abuse assessments and education courses for hardcore drunk driving offenders.4
Supervising authorities (pretrial, probation, parole and community supervision) use a combined approach involving surveillance, treatment, and accountability to enforce court orders and ensure sentence compliance among offenders. Recognizing these individuals as stakeholders in the development of a multi-disciplinary approach to hardcore drunk driving is essential.
Actions to consider for opening the lines of communication with supervision authorities:
- Contact the probation and parole offices in the jurisdiction.
- Request a meeting with the local supervisors to better understand the criteria involved in developing terms and conditions for the hardcore drunk driver.
- Obtain sample terms from other surrounding jurisdictions.
- Advise post-release supervisors about what other systems do to minimize recidivism.
Technology and Technology Providers
It is important for court administrators and officers to develop relationships with agencies providing their chosen technologies (e.g., remote alcohol monitoring devices, ignition interlock, electronic monitoring or reporting equipment, and alcohol or drug testing mechanisms). They need to be aware of what supervision technologies are available, the benefits/barriers to their use in the particular jurisdiction, and training required to use the technology and analyze the reports.
When a judge considers the use of technology as a means of linking stakeholders and facilitating open and balanced communications, there are ethical considerations. It is important to remember that communication by e-mail provided through court or government agencies is considered to be public record in many jurisdictions.
A judge who considers using electronic social and professional media should also be aware that at least one state has ruled that communication by a judge of the list of the judge’s connections to others, who the judge has approved, violates Canon 2B of the Code of Judicial Conduct (see Florida Opinion 2012-12). Participating in e-forms may also involve ethical issues concerning the appearance of giving legal advice and/or engaging in ex parte communications (see Florida Opinion 2001-02).
Clerks of Court/Court Administration
A successful multi-disciplinary approach to hardcore drunk driving should include the involvement of representatives from the office of the clerk of courts. Courts in supervisory positions in those divisions where hardcore drunk driving cases are frequently adjudicated are of particular importance. One effective approach is early identification of hardcore drunk drivers at their first appearance where conditions of release can aid in obtaining early offender assessment and public safeguards with appropriate conditions of release. These include ignition interlock devices, abstinence, and restricted driving privileges, etc. Clerks of court are able to draft orders and provide procedures to expedite application of these conditions.