Ask the judge

First question for the new column: “How can someone have so many DUIs and not be in prison?” I definitely understand the question. Nearly every week we see someone with a dozen or more DUIs being sentenced. So why aren’t these folks in prison? Let’s start at the beginning. Typical sentences for DUIs in Montana are:

First offense — one day jail, $600 fine, six months suspended (misdemeanor probation), drivers license suspension for six months and completion of the ACT (assessment course and treatment) program.

Second offense — seven days jail, $1,000 fine, 12 months suspended, one year drivers license suspension, ACT and mandatory monitoring such as SCRAM (an ankle bracelet that detects alcohol) or 24/7 program (daily morning breath tests at the jail)

Third offense — 60-90 days jail, $2,000 fine, 12 months suspended, one year drivers license suspension, ACT and mandatory monitoring.

Fourth or subsequent offense (which is a felony) — 13 months with the Department of Corrections, $1,000 to $3,000 fine, three to five years suspended, five years drivers license suspension, and six months WATCH program (inpatient treatment).

Prosecutors can also charge a person with a criminal endangerment charge (if someone’s safety was put at risk) or aggravated DUI charge, ask for vehicle forfeiture and a host of side options, depending on whether the facts fit the criteria. Remember also, insurance rates soar and the defendant pays for most of their “programs.” A DUI penalty is significant.

So why aren’t more people in jail or prison? To begin with, many are. In fact, between 2005 and 2010, felony DUI was second on the list of DOC offenses, behind possession of drugs and ahead of theft. However, society is hesitant to “throw away the key” when someone is an alcoholic (and most, if not all, felony DUI drivers are alcoholics). Of course, sentencing policy is set by the Montana Legislature.

However, I don’t want to throw the legislature under the bus. Judges have, and should have, a lot of discretion when it comes to sentencing. I ran on the platform of holding criminals accountable. And I still believe it is imperative to hold criminals accountable for their crimes.

However, an alcoholic is a good example of looking at both sides of the coin. An alcoholic does not wake up in the morning and say, “Today I want to get drunk, drive and possibly hurt someone or myself.”

I do so wish that same someone could just say, “Today I may get drunk, but I am not going to drive.” Life would be so much better for them, and for society. Bottom line though: Alcoholism is a disease that needs to be treated.

The Montana Legislature did a great thing when they set up WATCH, a six-month inpatient treatment program located in Warm Springs. Think about it for a moment — someone placed at WATCH has to leave their family, their home and their job for six months. That by itself is not easy.

However, the program is terrific. Someone who wants to quit drinking is given the tools to do so. In fact, of the 2,968 graduates of WATCH over the last 12 years, 2,523 have not reoffended, or about a 15 percent recidivism rate — pretty darn good. Of interest, the average blood-alcohol content at time of arrest was 0.199, the average number of prior DUIs was 5.4, and the average number of previous misdemeanors was a staggering 19.34.

Although incarceration is the only guarantee repeat DUI offenders will not be on the road driving drunk, our society does not want to throw a drunk in jail or prison forever. Too expensive for one. Too punitive for another.

So we (the legislature and the judiciary) try to find a balance. Not surprisingly, countries all across the world struggle with finding that balance. The legislature has numerous bills every session dealing with DUI laws, and judges often debate what more can be done. All in all, I am thinking we are doing OK. Work to be done, for sure, but all right.

Although we will unfortunately continue to see articles about the 12th, or 15th, DUI, the problem probably has more to do with the nature of the untreated alcoholic than the laws out there. I hope this gives you some insight into these troubling cases.

Judge Russell Fagg has been a District Court Judge for nearly 20 years, and has been assigned approximately 25,000 cases during that time. He is the current president of the Montana Judges Association.