A grand jury recently handed down an indictment in a New York driving under the influence (DUI) case that involved the death of an elderly doctor. However, these particular charges are not directed at the drunk driver. Instead, the passenger in the car is the one under indictment. He faces up to fifteen years in prison if convicted.

Brian Steele, twenty-eight, was riding as Kayla Gerdes’s passenger on April 20 when Gerdes jumped a curb and killed Rebecca Twine-Wright, who was mowing her own front lawn. Twine-Wright was pinned between the van and the foundation of her house. The sixty-nine-year old doctor died of her injuries.

Although Gerdes, eighteen, has been charged with twenty-eight criminal counts arising from the incident, her passenger, Steele, has been charged with four of his own. Prosecutors allege that Steele allowed Gerdes to drive his van, despite the fact that she was high on drugs. Police found a stolen prescription pad, 20 oxycodone pills and 30 Xanax pills when they searched the van.
Because prosecutors allege that Steele was acting in concert with Gerdes, he has been charged with second-degree manslaughter, criminally negligent homicide, and second-degree reckless endangerment. He is free on $50,000 bond. Not one to learn a lesson, however, Steele was recently arrested for his own driving while high on Xanax and Vicodin.

For her part, Gerdes has been charged with a laundry list of serious offenses and faces up to sixty years in prison if convicted. Lawyers for the girl argue that there is no evidence that Gerdes was under the influence of drugs at the time of the accident as samples for toxicology tests were not gathered until over four hours after the accident; Gerdes claims that she took the pills after she was arrested.

Gerdes also claims that she was driving because Steele, her boyfriend, was too impaired to drive. Unfortunately, Gerdes was not licensed to drive Steele’s large construction van.

No, things are not looking good for Kayla Gerdes. Just prior to the incident she had been kicked out of a drug rehab program for failure to pay. Further, Gerdes’s mother evicted her from the house after the DUI incident and later alleged that Gerdes had stolen jewelry from her so that she could continue to buy drugs. Gerdes now faces grand larceny charges, in addition to the 29 charges arising from the DUI.

Gerdes is being held on $200,000 bond and will likely remain in jail for the foreseeable future. Because she is only eighteen, she is not eligible to participate in the drug treatment program sponsored by the NY correctional system. Her lawyers claim that she is suffering in jail without treatment and has been in and out of the jail’s medical facility.

A Case of “When Good Laws Get Twisted” in New York

A series of laws, known as the “Rockefeller” drug laws, was passed in New York with the purpose of helping addicts who dealt drugs or committed minor crimes in order to support their drug habits avoid unnecessary incarceration. Instead, the laws allowed these addicts to enter drug treatment in order to avoid jail.

However, bona fide drug dealers, whose crimes were not a direct result of their addiction to illegal substances, are using the laws to avoid jail by claiming that they are addicted to marijuana. Most of these dealers have multiple convictions for non-violent offenses.

For instance, a member of the Bloods gang had been previously convicted of two felony drug charges. Last October, he was charged with overseeing a cocaine ring. Despite denying that he had a drug problem in the past, the dealer suddenly claimed a marijuana addiction and, instead of being in jail, is in a drug treatment program. Dealers have been overheard during jailhouse conversations discussing how best to make a case for pot addiction, including making sure that a urine test comes back positive for marijuana.

Proponents of the law, however, argue that the changes work and that the cases of pot-smoking drug dealers are rare. The new laws have repealed the mandatory minimum sentences for drug offenses that were implemented in the ‘70’s and allow for resentencing or release for some prisoners who would have qualified for treatment under the new law.

This expansion of judicial diversion permits a judge to dismiss a drug charge if the offender first pleads guilty and successfully completes treatment. For drug dealers who aren’t truly addicted, however, allowing them to participate in diversion will have no effect on rates of recidivism as their crime is not really tied to an addiction. Prosecutors are worried; roughly 50 percent of those who requested judicial diversion after the law passed claimed an addiction to marijuana. This is especially curious, since these same people are dealing cocaine and heroin, substances that are much more addictive than pot.

http://abclocal.go.com/wabc/story?section=news/local&id=7453911
http://www.nydailynews.com/news/ny_crime/2010/06/27/2010-06-27_smoke_pot_to_get_out_of_jail_prosecutor_sez_fiends_wrangle_treatment_angle_in_ne.html
 

The state enacted the new laws in response to the devastation of its communities as a result of drug addiction, which can often lead to violent crimes by drug lords and their gangs. The latest reform was an effort to improve consequences for drug addicts. The problem is, the new law has no independent verification of addiction by trained professionals.

Without validation, defendants with multiple convictions can exploit the provisions of the law by seeking treatment for an addiction they don’t have and emerge from the treatment center with a clean slate of up to three prior convictions as well as pending charges – not exactly what the state had in mind.

Drug dealers are well aware of the benefits offered to them through this program. They also know how easy treatment can be for someone who doesn’t really have an addiction. In a recent phone conversation intercepted by law enforcement, dealers referred to the new law as the “Drug Dealers Protection Law.”

Over the past 20 years, there has been a sharp drop in crime due in large part to innovative law enforcement and increased jail time for pushers and purveyors of violent crime. The threat of long jail time was enough incentive for both dealers and users to provide information on suppliers higher up in an organization and on other cases.

Without incentive to cooperate with law enforcement, information sources will dry up and the drug kingpins and their associates will be free to operate openly. Putting the handcuffs on the prosecutors and giving free reign to dealers is the wrong direction for drug control.
 

Mothers Against Drunk Driving (MADD) supports the legislation that would mean New York would join 35 other states that currently have special child endangerment laws that impose higher penalties on drunk drivers who have children in the car.

“In 2007, there were 9,480 accidents related to driver intoxication in New York and 344 resulted in deaths. Nearly 200 of those killed or injured were under the age of 14. Too often, intoxicated drivers directly threaten the lives of those too young to decide whether to enter a car with an adult. To those who put our children at risk, today we say enough,” New York’s Governor Patterson said.
 

Drug Abuse

New York is currently in the process of reviewing and reforming its drug laws. In early 2009, a bi-partisan sentencing panel found that current drug diversion programs, such as DTAP (drug treatment alternative to prison) and drug courts are effective at combating recidivism in addicts and should be expanded to reach the entire population of New York. Further, the panel recommended the funding of more community-based drug treatment programs, along with implementing a system of clear sanctions for failure. The panel hopes that treatment programs will act as alternatives to incarceration and save prison space for high-risk offenders.

Some drug diversion and treatment models currently under consideration in New York include judicial diversion, which gives a judge discretion to place addicted, non-violent first and second offenders into treatment; court-approved drug abuse treatment (CADAT), judicial diversion with prosecutor approval, and a probation/jail program for first time class B drug felons instead of prison.

Drug Treatment Alternative to Prison (DTAP)

The Drug Treatment Alternative to Prison (DTAP) program was started in 1990 by the Kings County District Attorney. The late 80′s saw a dramatic increase in the number of crack addicts being sent to New York jails for drug related crimes, as many drug addicts resorted to non-violent crime to support their habits. This influx of non-violent criminals strained the already over-burdened prison system. The DTAP program was the first prosecution-run program to divert felony offenders to government-funded residential drug treatment. Today, it remains one of the few programs to offer residential treatment as opposed to, the often less effective, outpatient drug treatment.

To quality for DTAP, an individual must be a drug addict, have been arrested for a non-violent felony, and have been previously convicted of one or more non-violent felonies. Once accepted, the addict enters a plea of guilty to the charges and receives a deferred sentence in order to enter residential drug treatment for between 15 months and 2 years. If the addict successfully competes the substance abuse treatment program, the charges are dismissed. Failure to complete the program results in reinstatement of the original prison sentence.

As of May 2009, 2,696 addicts have been accepted into the DTAP program and 1,160 have completed it. It is estimated that this has saved taxpayers $46.4 million in incarceration costs. Further, participants of DTAP remain in substance abuse treatment longer than other residential treatment participants and are 67% less likely to return to prison than those who did not enter the treatment program.

Several of New York’s district attorneys, and all district attorneys in New York City, now have Drug Treatment Alternative to Prison (DTAP) programs. In addition, all counties in New York have some form of Drug Court, which uses monitoring and the threat of incarceration to keep people in substance abuse treatment.

Drug Courts

Drug courts are similar to the drug treatment alternative to prison programs, but the details vary dramatically by county and, sometimes, even by location. Drug courts allow a judge to supervise the drug treatment of an addict in order to encourage the addict to stay out of jail and successfully complete treatment. As of 2009, there were 175 different drug courts in New York state. Some courts treat only felons, others treat only those charged with a misdemeanor. Failure to complete the drug treatment program will likely require the participant to serve time in jail or prison.

One such drug court located in Manhattan, the Manhattan Treatment Court (MTC), is for first-time felony offenders who face drug charges or drug abuse charges. Instead of serving a jail or probation sentence, the addict enters treatment (usually outpatient) and makes regular court appearances. The program lasts from 1 to 2 years.

All of New York’s drug court programs share certain characteristics. For instance, older drug abusers are more likely to succeed in treatment. Those with heroin addiction or prior criminal convictions are more likely to abuse drugs in the future. All of the drug courts require regular drug testing, community based treatment, case management visits, and court appearances.

Drug courts in New York vary dramatically with regard to eligibility criteria, whether the program can be completed before entering a plea or after, sanctions for violations and consequences of completion or failure.

Shock Incarceration

Another unique drug treatment program currently operating in New York is the “shock incarceration” program, which has saved taxpayers approximately $1.3 billion over the last 20 years. The program acts as an alternative to prison for young adults under 35, providing a therapeutic environment with substance abuse treatment and academic education. The program is similar to other states’ “boot camps” and participants are eligible for parole within three years after admission. The program places an emphasis on recovery, requiring addicts to spend 30% of their time in addiction treatment.

Alcohol Abuse

While New York has shown a trend toward using drug treatment to combat certain drug-related crime, it has not yet applied that same model to those charged with alcohol-related crime. The majority of alcohol abusers in New York enter the criminal justice system due to driving under the influence, or DUI. However, New York has no alcohol diversion program which would allow an alcoholic to enter treatment to avoid criminal charges. Instead, an alcoholic enters court-related treatment to, at the most, reduce a jail sentence or get his or her driver’s license re-instated.

New York combines judicial sentencing and Department of Motor Vehicles programs in order to adjudicate DUI offenders. In general, a first-offense or second-offense DUI will not lead to jail time. Instead, the offender will lose his or her driver’s license, be forced to attend alcohol education classes, and pay a fine. Those charged with DUI are required to complete an alcohol-abuse self-screening survey to help identify those who need more formal addiction screening. Those needing treatment, though, will have to pay for it themselves.

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.

In April 2009, the draconian Rockefeller Drugs Laws of New York were reformed in an attempt to advance a public health and safety approach to drug policy, which will reduce sentences for nonviolent drug offenders and allow judges to place offenders in drug treatment programs rather than in prison. The legislation will also allow thousands of prisoners jailed for nonviolent drug offenses to have their sentences reduced or commuted.

Under the old system, signed into law by Nelson Rockefeller in 1973, the penalty for selling two ounces or more of heroin, morphine, raw opium, cocaine, or cannabis (including marijuana) was equal to the penalty for second-degree murder: a minimum of 15 years to life in prison, and a maximum of 25 years to life. This applied even to offenders with no prior convictions. These strict, oppressive laws gave New York the distinction of having the toughest laws of its kind in the entire nation.

However, the Rockefeller laws have been proven to be unsuccessful and incredibly controversial, especially since they have disproportionately targeted minorities. Many believe that the criminal justice approach to drug use and abuse has failed, and that the Rockefeller laws in particular have promoted institutionalized racism, failed to reduce drug abuse, contributed to mass incarceration, and wasted taxpayer dollars. About 12,000 people are in prison on drug-related charges in New York; in 2008, more than 5,000 people were incarcerated for nonviolent drug offenses.

Many citizens, including Rep. Jeffrion Aubrey (D-Queens), believe that these people should be getting treatment for addiction rather than sitting behind bars. “Think of all the resources that have been spent on locking up nonviolent drug offenders that could have been invested in the education, rehabilitation, and job training that can save lives,” Aubrey said. “Treatment programs in New York city have a ten percent recidivism rate for participants one year after completion, compared to 60 to 70 percent for those not in programs. Treatment works.”

In his first State of the State address in January 2009, New York State Governor David Paterson said, “I can’t think of a criminal justice strategy that has been more unsuccessful than the Rockefeller drug laws.” Just three months later, he signed the reform bill into law. “This is a proud day for me and so many of my colleagues who have fought for so long to overhaul the drug laws and restore judicial discretion in narcotics cases,” Paterson said at Elmcor Youth and Adult Activities, Inc., a drug treatment center.

In addition to eliminating mandatory minimums, returning judicial discretion in most drug cases, and reforming sentences, the legislation will expand drug treatment programs, giving offenders alternatives to incarceration and helping them recover. Offenders who are not addicted but who sell drugs will still be sent to prison, but they won’t be subject to the harsh mandatory minimums of old.