“Hardcore drunk driving is not just a criminal issue. It is a public health issue second to none. We must change the role of the judge in order to be effective. We need to educate judges about the fact that it is ethical to treat a crime as an illness, too. Judges should be willing to make an investment in offenders’ lives if offenders will make the same investment in themselves.” — Judge Robert Pirraglia

The complexity of adjudicating the hardcore DWI offender is exacerbated by rapid changes in technology, case law and statutes. These complexities can be mitigated by convening multiple disciplines to discuss hardcore drunk driving issues. These include judges, prosecutors, defense attorneys, probation officers, law enforcement, driver’s license representatives, court clerks, and treatment providers.

A multi-disciplinary approach will materially enhance the adjudication and management of hardcore drunk drivers including improved public perception and support, improved delivery of justice services, and safer communities and citizenry.

Judges can ethically organize and serve on stakeholder committees whose purpose is to improve the delivery of justice in hardcore drunk driving and other traffic-related cases. This extrajudicial activity is encouraged by the Code of Judicial Conduct (see Canon 3, New Model Code Comment: “To the extent that time permits and independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities”).

The Paramount Importance of Ethics

Ethical considerations are always paramount when undertaking any extrajudicial activity. The provisions of the Code of Judicial Conduct vary from state to state and it is necessary to consult local sources of ethical guidance such as state judicial advisory opinions, state ethics codes and canons. The American Judicature Society (AJS) is a good independent resource. AJS provides linked access to the Judicial Ethics Advisory Committee opinions of 39 states. Independent research should always be done to determine applicability for the reader.

Addressing Judicial Ethics Concerns: A Multi-Disciplinary Case Study

Judicial leadership is crucial to deter drunk driving. Not only is it well within the ethical bounds of a judge to do more than adjudicate the facts and apply the law, but our system relies on courts to help identify an offender’s problems and promote the offender’s healing and rehabilitation. In addressing the problem of hardcore drunk driving, to what extent, if any, can judges work with other criminal justice stakeholders?

In Florida, the major concern regarding the concept of stakeholder meetings came from the judges. Would meeting with law enforcement, prosecutors, and defense attorneys compromise their independence and give the appearance of impropriety as they discussed issues in cases they swore to judge fairly and impartially?

When judges are concerned about the ethical propriety of contemplated conduct, they can seek ethical guidance from a number of sources. These sources include the Code and Canons of Judicial Conduct, commentary to the Canons, treatises on ethics, reports of disciplinary committees and the opinions of ethics advisory committees that have been created to provide guidance to judges concerning contemplated extra-judicial activities.

Judges in Florida requested a judicial ethics advisory opinion before gathering with criminal justice system stakeholders to discuss impaired driving issues. The request to the Florida Supreme Court Ethics Committee for an opinion posed the following question:

“May a judge implement a local Criminal Advisory Committee that would include representatives from the offices of the State Attorney and Public Defender, the criminal justice bar, the Sheriff’s department, local law enforcement, felony and misdemeanor probation departments, clerk of the court, court administrator’s office, the department of motor vehicles, and drug and alcohol treatment providers involved in the disposition of felony, misdemeanor, and traffic cases?”

The answer of the Florida Supreme Court ethics advisory committee was “yes.” In its Opinion 04-14, the committee pointed out that Canon 4B allows a judge to speak, write, lecture, teach, and participate in other quasi-judicial activities concerning the law, the legal system, and the administration of justice subject to the requirements of the Code. The commentary to Canon 4B recognizes that as a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, and to the extent that time permits, a judge is encouraged to do so, either independently, or through a bar association, judicial conference or other organization dedicated to the improvement of the law. Opinion 04-14 came with a caveat. Discussing DWI issues and resolving matters such as scheduling and discovery is acceptable, but discussing pending or impending cases of individual defendants must be avoided.

While the Florida Supreme Court Ethics Committee’s opinion does not have precedential value in other states, it may be a valuable indication of how other ethics advisory committees would rule if presented with a similar inquiry.  Other states that have already issued favorable judicial ethics opinions on stakeholder meeting issues include Illinois in Opinion 98-1 and South Carolina in Opinion 23-2006.

One Florida state court that relied on Opinion 04-14 was the Pinellas County Court, serving Clearwater and St. Petersburg, Florida. Under the leadership of County Judge William Overton, stakeholders in the DWI adjudication process joined together to discuss the impact of the state’s mandatory alcohol ignition interlock device (IID) law. In addition to a demonstration of the device, prosecutors, criminal defense lawyers, probation officers and judges discussed in what cases the device would be mandated, how compliance would be monitored, and how violations of court ordered compliance would be addressed and processed. The meeting also resulted in cooperative efforts to provide information to the practicing bar and the public concerning the operation of the new law.

A criminal justice advisory committee, such as the one implemented in Florida, is an effective means of bringing stakeholders together to listen to and learn from each other and to reason together and address common issues.  It provides the opportunity to improve the delivery of justice in DWI and other criminal traffic cases.

Identifying and Engaging Multi-Disciplinary Stakeholders

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.