Judicial Attitudes toward Drug and Alcohol Abuse in California
By Millie Anne Cavanaugh, Esq.
Approximately 36 million people live in California. It is estimated that drug and alcohol abuse costs the citizens of California approximately $44 billion per year in loss of productivity, health care, substance abuse prevention programs, substance abuse treatment programs and criminal justice programs. The cost is split between drugs and alcohol at roughly $22 billion each. The number of yearly deaths attributed to each type of abuse is also equally divided at 3,600 each.
Although the societal cost is allocated almost equally between drug abuse and alcohol abuse, the State of California currently focuses the lion’s share of its treatment and prevention resources on drug abuse. Of the over 200,000 patients admitted to California substance abuse treatment programs that received federal or state funding, 80% of them were admitted for drug abuse. The dichotomy between drugs and alcohol is further illustrated by the way the California criminal justice system treats alcohol and drug related crime.
Drug Abuse
Prop 36 & Substance Abuse and Crime Prevention Act (SACPA)
In 2000, California voters overwhelmingly approved Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (SACPA). The purpose of SACPA was to create a diversion program that would offer defendants an opportunity to decrease jail and prison terms for drug-related crime and decease overall drug abuse by sending those criminals to drug abuse treatment instead of jail. SACPA is for adults who have been convicted, for the first or second time, of being under the influence of a controlled substance or of a nonviolent drug possession offense such as simple use, possession for personal use, or transportation for personal use.
Those convicted of possessing with intent to distribute, manufacturing, trafficking or dealing drugs do not qualify for SACPA treatment. Also, SACPA does not apply to charges stemming from cultivating marijuana for personal use, drug possession charges when in possession of a loaded handgun, using a forged prescription to obtain drugs, or driving under the influence (DUI).
A successful SACPA participant will complete a drug treatment program and have the drug charges dismissed. The program is administered in conjunction with county courts and costs California taxpayers approximately $120 million a year. On average, courts refer 30,000 drug users a year to the Prop 36 program and about one-third successfully complete it.
A SACPA referral happens after the person has been convicted of the drug related offense. Instead of serving a jail sentence, the person is placed on probation and is required to undergo drug treatment for up to one year. Throughout the course of treatment, he or she must report to a probation officer, case manager and treatment officer. The judge has the discretion to set conditions for the supervision including drug testing and enhanced treatment requirements for relapsers. Participants who commit non drug-related violations can have their probation revoked and be sent to jail. One controversial aspect of the SACPA program that has come under fire in recent years, however, is the prohibition against jailing a participant that relapses. Instead, the violator must be given multiple chances to complete the program.
The substance abuse treatment options offered under Prop 36 vary by county. Drug treatment facilities must be licensed and certified by government agencies to receive Prop 36 funds. The treatment programs can include outpatient drug treatment, halfway house drug treatment, narcotic replacement therapy (such as methadone treatment), drug education and prevention programs, detox, and limited inpatient therapy. Sadly, Prop 36 does not currently cover intensive and comprehensive inpatient drug treatment programs.
In 2008, UCLA released a report on the status of the Prop 36 Substance Abuse and Crime Prevention Act program. UCLA found that the program was plagued by problems such as inadequate funding and a high drop out rate. The study found that roughly half of the participants are in drug abuse treatment for the first time and that most participants receive outpatient care, a less expensive, but also less effective, drug treatment option. UCLA recommended that the program increase the number of narcotics abuse treatment options, offer employment assistance and increase the availability of inpatient treatment. As the number of drug offenders and drug-related arrests continues to rise in California, the demand for spots in the SACPA will also continue increase. However, given California’s budget woes, it remains unclear whether additional funds will be allocated to this drug treatment court diversion program.
California Adult Drug Court
Prior to Prop 36 and the Substance Abuse and Crime Prevention Act, county courts had already implemented their own programs designed to alleviate jail and prison crowding and reduce the prevalence of drug addiction. These largely local programs, referred to collectively as Adult Drug Courts, now augment the reach of Prop 36 and SACPA, catching those who either do not qualify for or cannot successfully complete the program. While SACPA participants are managed by parole officers and program managers, Drug Court participants are supervised by court personnel and are required to attend meetings at court. The cost of implementing the program is roughly similar to processing a someone under strictly criminal guidelines.
Participants in California drug court programs have either been charged with or convicted of drug-related felonies and misdemeanors. Drug courts generally utilize initial intensive treatment services with ongoing monitoring and continuing care for 12 months or more. There are approximately 200 drug courts in California.
Drug courts are implemented in different ways across California. Pre-plea drug courts give drug possession offenders a chance to participate in the court-supervised treatment before charges are brought. If the drug abuser successfully completes the program, the charges are dismissed and the person will not have a criminal record. Failure to complete the drug abuse treatment program leads to the filing of and adjudication of the drug charges. Post-plea drug courts allow offenders to enter treatment only after they have plead guilty to the drug charge. Treatment under a post-plea court can take up to three years. Once the program is completed, the charges will be dismissed. Failure will result in sentencing. There are also drug courts that allow offenders to enter treatment after they have been convicted but before beginning their sentence. Successful participants will have served their sentence in treatment, rather than jail.
Alcohol Abuse
Although alcohol abuse costs California, as a society, roughly the same amount of money as drug abuse, the state focuses its treatment resources on drug abusers. Further, courts are more likely to offer drug users leniency as a reward for treatment; alcoholics who appear before a judge will likely leave with a criminal record.
Admittedly, the chances of being arrested due to alcohol abuse, and thus calling attention to the abuse, are significantly lower than for drug use. While drinking alcohol, in itself, is not illegal, drug use generally is. Alcoholics will likely be arrested only for driving under the influence (DUI). Thus, alcoholics who manage to avoid getting pulled over for drinking and driving will probably never have to appear before a judge on substance related charges. Conversely, simply being in possession of drugs can lead to an arrest. Unlike Drug Court and SACPA, there is currently no mainstream diversion program for those convicted of driving under the influence (DUI) that would erase their criminal conviction. While drug addicts get a “carrot” for simply completing a treatment program, alcoholics are generally given the “stick” for being under the influence.
In California, it is a crime to operate a motor vehicle with a blood alcohol content of .08% or over. An arrest for driving under the influence results in two government proceedings: one in criminal court for the criminal charge and another by the DMV regarding the driver’s license. The DUI charge carries with it the risk of suspension or revocation of the driver’s license, court probation of 3 to 5 years, fines, jail time, and enrollment in an ignition locking device program. For multiple offenders, it is possible that they will forfeit their vehicle to the state.
California imposes enhanced penalties on drunk drivers with prior convictions, those who were speeding or driving recklessly, those who had minors in the car, those who caused an accident, injury or death, those whose blood alcohol content was .15% or higher, and those who refused testing at the time of arrest.
While all DUI convictions require the offender to attend alcohol eduction classes, including Alcoholics Anonymous, many first time DUI offenders will fall through the cracks. For many, the first DUI charge can be plead down to a “wet reckless” or driving recklessly while under the influence. Although a “wet reckless” will count as a DUI should the offender be arrested again, there is no mandatory alcohol treatment or counseling for this lesser charge.
The severity of sentences for driving under the influence vary according to blood alcohol content and number of prior offenses. However, even the most frequent offenders, those with three or more DUI convictions, are required to attend what amounts to approximately two weeks of full-time counseling or education classes (90 hours). Compared to the standard 28 day program recommended as the minimum treatment necessary for alcoholism, the chances of recovering from alcoholism through court-ordered treatment are fairly bleak.
Instead of focusing on treatment, California courts deal with alcohol-related crime by taking away he ability to repeat it, at least for a period of time. For instance, driver’s license suspension and revocation is likely to prevent at least some alcoholics from driving a car, as do stints in jail. Ignition Interlock Devices (IID) also prevent alcohol abusers from driving a car while intoxicated. If ordered by the court, the installation of an IID will prevent someone from being able to start or operate a car if over the legal limit. Unfortunately, none of these approaches address the underlying issues of alcohol abuse.
Millie Anne Cavanaugh is an attorney licensed to practice law in California & Massachusetts and is a former insurance defense lawyer. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.
