DUI & DWIClients’ ChoiceAward 2012-2018

The Debate Over First Time DUI Offenders and If They Need to Be Booked Into Our Overcrowded Jail

The Debate Over First Time DUI Offenders and If They Need to Be Booked Into Our Overcrowded Jail

Whatcom County jail is overcrowded and Sheriff Bill Elfo has called for booking restrictions. In this episode of The Legal Docket, DUI attorney Jonathan Rands and KGMI's Dillon Honcoop talk about first time DUI offenders and do they really need to be booked into jail or can sending them home help with the overcrowding situation.


Episode Transcript

Dillon
Jail, what are they doing? Well, the sheriff, we talked with the sheriff on the morning show, here on KGMI on Thursday, and he explained some of the reasons why he has put booking restrictions into place, which means there are some — and Jonathan Rands is with us. He's going to explain why DUI law has a lot to do — and how he handled DUIs specifically locally, has a lot to do with the change going on right now at the Whatcom County Jail. Jonathan Rands, local DUI defense attorney. Booking restrictions basically means there are some people the cops may catch and they just won't put them in jail now if the jail is over a certain level of full. If I understand.

Jonathan
As long as it's a "low risk" offender, I believe. There's always room for somebody you want in there bad enough.

Dillon
Yeah, they'll make room.

Jonathan
Yeah, absolutely. No matter what the jail capacity is. But what we're talking about here is a capacity issue that I think is made a capacity issue as a result of the local county policy to book every DUI. That is unique to Whatcom County. This is actually the only county, that I know of state-wide, speaking with colleagues and friends around the state. Mandatory book DUI is really not something that's done anywhere else. It's done here, I think, as a result of pre-Hailey's Law, meaning now DUI requires a mandatory impound of the vehicle that you're driving. But prior to that law, the case that created Hailey's Law, there was —

Dillon
Hailey French case here in Whatcom County.

Jonathan
That was a situation where it was here, the situation was exactly here the way that it is in the rest of the state, which is DUI arrest processing and then you release the person. And where you release the person became discretionary from the officers in Skagit County and here a lot of the time. It used to be that they would just take you to a well-populated place. Denny's is a 24-hour restaurant, or Sherry's. I know a lot of people would be released in that area where they could walk in, grab a cup of coffee, make a phone call and get someone to pick them up, a cab or something like that. But the car was not mandatorily impounded, and so, I mean Hailey's Law came about because in that situation, the person was not booked, the car was not impounded. That person arrested made a poor choice to go back to their car and continued to drive away out of the city and ultimately had a collision with Hailey French.

In the wake of that, there was a law suite against the state patrol, against Whatcom County District Court Probation because the person that was arrested and released and had a collision with Ms. French was actually supposed to be being monitored by a probation [officer] because she was pending, or dealing with a pending, DUI already - driving with a suspended license and without an ignition interlock. So when that happened, the reaction was, we're just going to book everybody. I believe that's what happened. Politically it might have been a little more detailed than that, but —

Dillon
Maybe a bit knee-jerk.

Jonathan
Rightly so because I think in the end there, I think there was a pretty large judgement against, that was shared by the State, if you will, State Patrol was found somewhat negligent. Probation was found somewhat negligent. Somebody else was involved as well. And this was a case that the civil case was removed down to Skagit County. And I think it was a $7 million verdict. Something along those lines. And since that accident, and since that time, we've had a mandatory booking policy no other county has. And the mandatory booking policy I think creates part of the over-crowding situation, especially on an emphasis weekend, or emphasis month, or just a general zero-target campaign. 

Dillon
Right. Thanks, by the way, for mentioning Denny's because I didn't have breakfast this morning and, yeah, I could use a grand slam right about now. Maybe the lumberjack slam, I'm not sure. But in terms of backstory here, the issue is the Whatcom County Jail downtown is old, it's way overcrowded, it's falling apart, the sheriff is saying we need a new jail. They've been working on building a new jail. They sent it to voters last year. Voters said, nope we don't like the plan as it's been proposed and we don't want to support a sales tax increase, I think it was going to be, to pay to build a new jail. So now, the sheriff is saying, alright, well, we've got to do something. And so he's gone to the point of saying we're overcrowded so I have to make these changes. These booking restrictions which were just started, what within the past week or so.

Jonathan
Yeah.

Dillon
Which is a situation that we had years ago in Whatcom County, if I recall, where they did booking restriction for years until they had made some — I think that's when they brought in the interim work-centered jail that's out in Irongate. And then they were able to stop with the booking restrictions. So the whole thing is, why is the jail so crowded? Why are there so many people in there. Obviously, we need a new jail, but for the moment, that doesn't happen with the snap of a finger. So what do we do about all these people and so you're pointing out, and I think rightly, a bunch of the poeple who are in there on a day-to-day basis are because of DUI enforcement law that they've decided, or not even law, but policy, I guess, which is to put every single person in jail if they're arrested, even the very first time, for DUI. And is this the most dangerous person on the street that needs to be in jail? I think that's a legitimate question to be asking at this point.

Jonathan
And I think the answer is no. And it's no because the mandatory impound. You remove the car, even though the person doesn't get booked into jail and you remove the biggest worry. Because the worry is we book them into jail so that they can't go do something. We book them and let them "sober up" and release him. When you remove the ability to go back to the vehicle, I don't see the threat anymore. I guess it's feasible that a person could make a terrible decision and go back and find another car, which would presumably be parked at home, and why you would get in the car and continue driving when you're home rather than going to sleep and dealing with everything the next morning. So there's no — for lack of a better word, there's no immediate risk. These are low-risk people. Not because DUI is not dangerous, but because when you're not behind the wheel of a motor vehicle allegedly impaired, you're not a danger or a threat anymore. Do we book first-offense shoplifters? It's essentially the same thing, or the same level. We certainly would book people that are a threat to the community or a threat to public safety in immediate manners. And that's just not the case. However, the legislature has said, on a second arrest, even in a lifetime, it's a mandatory booking. So there's that. And again, that's another reaction to DUI enforcement. More importantly, that contributes to this is mandatory jail time on DUI convictions. And as you well know from this show, first offense DUI minimum is 48 hours at the maxim end of things, meaning a first offense DUI with a no breath test or refusal is 2 days. A first offense with no breath test or under a 1.5 reading and not a refusal is one day. But as soon as you get a second offense in 7 years, you're now looking at a mandatory 30 or 45 days incarceration depending on the breath test. 

Second offense you're looking at a mandatory 120, 150, and this is jail. This is something that has to be served and so one of the questions can certainly be, with these types or with jump, if you will, and whether it's justified or not is another discussion, but the fact remains is a second offense DUI conviction jumps 29 days in jail. And if you've got crowding issues, you've got something like this contributing to it.

Dillon
Well, I think these questions are legitimate even if there isn't a crowding issue. Why is a first offense DUI going in and out of the jail. Ok, then we can make the argument, well how do they really handle the second offense and beyond, but it's the lack of space, the overcrowding issue that's put all this pressure on it. And ok, so now it is time to prioritize. What's more important? And really shouldn't, I'm trying to think, you mentioned shoplifting. There've gotta be quite a few things kind of in the lower end the the spectrum here that you would say, no, this isn't a top priority thing. If we don't have room in the jail, these people aren't going to go first. 

Jonathan
The entire misdemeanor code, whether it's a gross misdemeanor or a simple misdemeanor, meaning a simple misdemeanor is still a crime, it's just not as serious and jail sentence a maximum of 90 days and $1000 is the maximum, verses a gross misdemeanor, which is what a DUI is, so it's misdemeanor but a slightly more egregious, so the sentence is allowed to go up to a year and up to $5000. DUI is the only misdemeanor crime that has mandatory jail sentence. Now, it's also the only crime, and when I say mandatory jail sentence, it's a mandatory custodial jail sentence. So we can talk about jail, let's use the theft case. Let's say a person get's 10 days jail, the statute doesn't require it to be, what I call a gray bar hotel. It doesn't require you to be booked into the actual jail. You can serve that jail alternatively, and Bellingham Municipal is using a company called Friendship Diversion Services, where you use home detention. 

Dillon
Electronic home monitoring kind of thing? 

Jonathan
It's even more than electronic home monitoring. It's GPS home monitoring.

Dillon
Which makes sense.

Jonathan
Right, and so it's really the class of the crime, I think, should dictate the level or the type of confinement. But because the legislature, and this is Washington and I think we voted on this a long time ago, because we're Washington and we vote on everything, apparently, that's what I'm finding out as a new voter. It was decided that there would be mandatory jail time. And that's a reaction to say getting tough on DUIs, but as you look down the line, we've always talked about what really happens, or as you go downstream, how does it affect it. And that's one of these situations on the booking angle, but also on the serving of the jail time.

Dillon
Do you think this could be a point of compromise between, ok we have first time offense, we've got to put everybody in jail even from that first time vs letting somebody go home and wait for their court proceedings is maybe electronic home monitoring, or this more stringent home detention maybe a middle ground where, ok you aren't going to jail, but your'e under surveillance? 

Jonathan
It's kind of like the war on drugs where you can't reverse your stance after you've invested so much time into it. I don't think it would ever be a popular platform to say, we're going to take DUI offenders and no longer require them to spend actual jail time. We're going to allow them to do something else. Is it just as good? Is it just as good of a confinement? Yeah, I mean something is lost when you're not in jail and you're doing home detention. But the punishment's still the same. The liberty is still deprived. There's still this sense of being in jail. 

Dillon
Well, and the context right now though, is again, having to prioritize. And ok, so maybe we would want people to - and if someone decides they want people to spend jail time, well we just don't have room for it right now. So isn't this maybe a better option? 

Jonathan
It's certainly not necessary on a pre-trial basis. I just don't see it being necessary on any DUI first offense arrest that you get booked into the jail. Does it have some benefits? It has a really giant shock value. It means that if the person is ultimately convicted of DUI 6, 7, 8, 9 months later they probably won't be going back because they've already served their time. So there is this concept of well, we do it now we just get it out of the way, but it's still an overcrowding issue. 

What about the cases where you've book somebody in and they never will spend an actual day in jail because the case has been reduced in some way, shape, and form outside of the DUI statute making them eligible for the electronic home services that are available out there, or EHD as the county calls it. In which case now you've taken up a space when you really didn't need to even though you don't have full credit, I don't know, for whatever reason maybe the person is serving 5 days and they served 1 day when they were booked in, then there's still 4 or 5 days left to go. Fact of the matter is, you've taken up that space on the booking side of things, and made the jail on that day that much more crowded or that much more dangerous, because overcrowding is a danger.

Dillon
And you're telling me if somebody even, say on a second offense, has to serve, let's say that get sentenced to 25 days in jail, they have to serve the jail.

Jonathan
Yep

Dillon
Because it's a DUI offense. If it were a different sort of conviction they may be eligible for home monitoring or home detention?

Jonathan
So second offense arrest and the second offense arrest that leads to a conviction that's not DUI — reckless driving or negligent driving — you are automatically eligible for all jail alternatives. You do not have to serve it in custody. In fact I don't even think the jail will necessarily take you unless the judge says, you know what, you don't qualify. I want you to spend x amount of days in jail in custody.

Dillon
But if you are convicted of DUI—

Jonathan
One day, 48 hours, 30 days, 45 days, 120, 150 is the scheme as you go through first offense over and under 1.5, second offense over under, third offense over under. 

Dillon
Jonathan Rands our guest right now. We've got to take a quick time out. Jonathan Rands is a local DUI defense attorney. His practice is in Fairhaven. 360 306 8136 is the phone number to reach him. His website is jrandslaw.com. His last name is Rands, spelled r-a-n-d-s. jrandslaw.com check out that website. The phone number again is 360 306 8136. I want to talk more about potential solutions and really what's going on in the jail when we come back as we continue. 

-- ad break --

Dillon
Ok, so the jail is too full. It's old; it's falling apart; it's not big enough for the number of people that Whatcom County, and that means the sheriff's office and the local cities want to be able to put in there. And they're working on solutions. Welcome back, we continue; we're talking with Jonathan Rands here on The Legal Docket, local DUI attorney. Well, what does DUI have to do with what we've also been talking to the sheriff about. Well, a lot of the people who are in and out of that jail, downtown Bellingham, which again, we've recently been told it's too full, so they're going to, once it reaches a certain threshold on a given night or day, they're going to enact booking restrictions where they won't book people into jail where they normally would. They're saying that a lot of that, and you're explaining, is because people are in and out of jail on DUI arrests. Some people first time DUI offenders, presumable pretty low-risk people. Is this a top priority when the jail should probably be booking people who've committed assaults and more serious crimes and you know, dangerous potential felons and things like that. Why are we still cramming this many DUI first time offenders through the jail. How big of a difference, how many people on a daily basis are in that jail on a first time DUI offense?

Jonathan
Any given Friday, Saturday, Sunday or long weekend, if you have a look at the jail roster, it tells you who was booked in and what the charge was for. But keep in mind, it's not just Bellingham. Any city that has a police force has a mandatory booking. So you've got first of all, Whatcom County sheriff's officers on patrol. You've got State Patrol on patrol and they could be anywhere. But then you've got Bellingham city. You've got Everson, Nooksack, Ferndale, Sumas, Blaine, and I think that's all—

Dillon
Don't forget about my town—Lynden.

Jonathan
Oh Lynden, yes, Lynden, so—

Dillon
Still the second biggest town in Whatcom County. Just saying. No, but it adds up!

Jonathan
Ok, let's say there's one arrest from each agency on one night.

Dillon
Just one arrest, that shouldn't be a big deal. It's adds up to this big number.

Jonathan
Eight to ten people a night. And if somebody's held because their case doesn't get in front of a judge because they haven't changed their address because they have a Seattle address, which means they sit there until a judge sees their paperwork on Sunday morning. I mean just over the course of a weekend, you're up to 30-40 people sometimes. And if we've got restrictions, or if they're part of the crowding when they shouldn't be there, because let's say they're all first offenders and they're low risk and their car's been impounded and all those other things, does it make sense? The other scenario, or other solution is, so Bellingham Municipal when a person is convicted of DUI out of that court, they don't have anywhere to send them because the jail is not accepting them because of their issues that are well publicized. So they put them on a bus and they send them to Yakima. And that journey there is basically one day of jail. If you've got one day of jail to serve, 24 hours, or two days of jail to serve, is it now cost effective to put you on a bus?

Dillon
To bus someone all the way there and straight back. Crazy.

Jonathan
Yeah. So the solution to that is people are starting to pay for their own jail, that's becoming part of the cost. But you know with situations like this, it does make you wonder if we could figure out privatization without all the issues that come with that. You run a jail like a business, I mean you're paying for it anyway. The public is not necessarily paying for it, but the defendants are starting, the trend is you're starting to pay for the cost of your own incarceration. 

Dillon
Jonathan Rands is our expert guest. Local DUI defense attorney here on the Legal Docket. We have just a minute left. What do you suggest? What are some solutions here? What should the county be doing? How should they be handling this?

Jonathan
I don't know that there's any easy solutions. Bill Elfo has a tough job. You're right, he does have to prioritize. I think that you've got to make some risk assessment decisions if the statute doesn't require mandatory booking like a second offense, and the person has no history and they're polite and cooperative. You're just doing risk assessment on the fly. Does that person need to be booked in, does that save you some space? Sure. As far as mandatory sentencing goes, we could do a whole show on that in terms of what I think should happen or could happen and maybe it's better left for another date, especially since I think my minute's up anyway.

Dillon
Yeah, we'll have to dig into that one of these days. Jonathan Rands, local DUI defense attorney. His practice in Fairhaven. And his website is online jrandslaw.com. Pretty big website. Lots of information available there online 24/7. jrandslaw.com the phone number for his practice in Fairhaven if you want to reach him the old-school way 360 306 8136. Let me repeat that. And if you're trying to jot that down 360 306 8136. Jonathan have a great rest few hours remaining of your weekend. Thanks for being here.

Jonathan
You as well. Thanks for having me.


Call now for your free consultation (360) 306-8136

“Being charged with a DUI is scary and often makes you feel alone against the unknown. Jonathan made himself available after hours to have a 'consultation' of sorts, to meet with me and hear my story, at no cost or commitment.”
Amy
A DUI Client, via Avvo