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OWI court, tougher sentences possible

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Tony DiNicola

Criminal drunken driving cases

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Tony DiNicola

Sentencing guidelines for repeat drunken drivers

JANESVILLE — Longer jail sentences for multiple-offense drunken drivers are on the horizon in Rock County as the possibility of a special court and program for the offenders becomes more likely.

“We’re the lowest in the state for sentencing guidelines,” District Attorney David O’Leary said. “The problem we have here is when individuals come and plead guilty—which most do—they receive the minimum sentence under the guidelines.

“That leaves no incentive for a person to enter a program.”

The program should be rigorous—total abstinence and frequent random testing—and long—perhaps up to a year—to convince a person to stop drinking and driving, Judge Alan Bates said.

But if the drunken driver is facing only a handful of days in jail, he or she might not stick with a tough program, Bates and other officials said.

“We need to increase the penalties for repeat drunken drivers so there is an incentive for them to seek treatment instead of going to jail or prison,” O’Leary said.

If, when and how OWI (operating while intoxicated) court would start here are open questions. So are cost and funding.

The Rock County Criminal Justice Coordinating Council is exploring and discussing the creation of an OWI court.

And if the county institutes such a court, “there’s got to be a punishment aspect to intentionally driving while intoxicated,” said the county’s chief judge, James Daley.

Rock County already has a drug court. It requires offenders to stick with a rigorous program of education, counseling and work or job searches while staying drug-free. If they graduate, they get their charges reduced or dismissed.

Daley envisions a system in which repeat drunken drivers would be sentenced to a long time in jail. If they enter a court-ordered and court–supervised rehab program, their jail time would be reduced. If they wash out, they would have to serve the entire jail sentence, he said.

But if the jail sentence is only a handful of days, the incentive is minimal, officials said.

Daley cited Winnebago County, for which the state Legislature passed a special law that allows in-patient rehab time to be applied toward a jail sentence.

“Their program has had some success,” Daley said.

That law carries minimum jail sentences that escalate with the number of offenses so offenders have an incentive to enter rehab, the judge said.

It was his understanding, he said, that a bill would be proposed in the next legislative session to expand the law statewide.

“The biggest thing is that we don’t seem to be stopping multiple-offense drunken drivers with progressively longer sentences, progressively higher fines and progressively longer revocations,” Bates said. “These don’t seem to deter intoxicated drivers because it is a sickness. It is both a crime and a sickness.”

Last year, 553 misdemeanor drunken-driving cases—second through fourth offenses—were filed in Rock County, according to statistics compiled by Clerk of Courts Eldred Mielke.

In 2007, prosecutors filed 209 felony drunken driving cases for fifth and subsequent offenses.

So far this year, 277 misdemeanor and 96 felony cases have been filed. The nature of the crimes means that one person usually is responsible for multiple offenses.

Since 2002, the general trend is upward for both felonies and misdemeanors.

“We need to do something because of the sheer volume of cases and the repeat nature of the offenses,’ O’Leary said. “We can lock up people with drug and alcohol addictions, but unless we deal with the underlying root of addiction, when they get out, they’re still a threat to society.”

Treatment timing

When to offer OWI court and its rehab program to repeat offenders also is an open question. La Crosse County starts offering OWI court at the second offense.

“I think it can work,” said Jessica Skemp, the assistant district attorney assigned to La Crosse County’s OWI court.

“There are people who have graduated that I didn’t think could ever lead a sober life, but they are,” Skemp said. “I’m just so happy to see that. Once people see the benefits they have, they really can cling to that.”

But the jury is still out on the program as a whole, she said

“Right now, I think the numbers (of repeat offenders) are a little disappointing,” Skemp said. “We’re coming up on two years. It takes a year for people to graduate.

“At first, we were expelling more people than keeping in the program.”

But Daley thinks a Rock County program would be offered at the third offense at the earliest.

“There is a large mass of offenders who, after the first offense, don’t re-offend,” Daley said. “There is another huge drop-off after the second offense, so for an effective cost benefit, we’d probably start at some later offense. …

“We’re dealing with the addictive nature of multiple offenders. The evidence is right there in front of them: You have two offenses already, and now you have a third.

“It’s hard not to admit you have a problem,” the judge said.

“And it has to be long-term treatment,” Bates said.

Most alcohol and other drug addiction programs run 30 to 90 days, he said.

“But the research shows it needs to be nine months to a year to make it stick. And that raises the question of the cost factor: How can a guy without (medical) insurance pay for it?” Bates said.

But Daley said that many OWI offenders, unlike offenders in drug court, are employed and have medical insurance.

“They will be expected to pay part of the cost of treatment,” he said.

Daley doesn’t think OWI court will be overly expensive “because we already have a program (drug court) in place. We might have to add more AODA counselors. … The judges are already paid for; the district attorneys already are paid for.”

More than half of drug court’s annual $300,000 treatment cost is paid by a state grant. The county anticipates receiving the same grant next year, but that would be the grant’s last year for Rock County. When the state money runs out, the county board will be asked to pony up the difference.

And whether a grant is available for OWI court is another open question.

Without grants for drug or OWI courts, “the county board will have to decide whether it’s more cost-effective to pay for treatment and assessment than to put people in county jail,” Bates said.

Will it work?

Though no one is yet ready to brand Rock County’s year-old drug court a success, the drug court experience is informing the OWI court discussion, the officials said.

“We are learning important lessons about how to deal with addiction,” O’Leary said. “We’re learning how to treat people without sending them to jail. The million-dollar question is how to reduce recidivism (repeat offenses), which is our goal.”

Daley said: “What we’re seeing are indications that the treatment modalities we’ve set up have changed (drug court) graduates’ lives.”

Two examples of changed lives, he said, are that the graduates must get GEDs if they don’t have high school diplomas and that their families are involved in their treatment.

The problem of multiple-offense drunken driving can’t be stopped, Bates said, but the hope is that it can be reduced in Rock County.

“The courts are frustrated,” he said. “The people are frustrated.”

The judges and Criminal Justice Coordinating Council have no schedule for creating an OWI court, Daley said.

“We’re still gathering information. There will be some negotiation,” he said. “We have to develop a budget.”

But Daley thinks OWI court will be here soon “because it dovetails nicely with the services we have in place and are built into drug court.”