DUI Laws that Punish and Help: Therapeutic Justice for DUI Offenders

Police have noted a leveling off in the reduction of alcohol-related crash fatalities, and DUI activists have expressed frustration with the persistence of DUI instances despite the increasing restrictions on drinking and driving and heightened awareness of the negative impacts of doing so. Members of the legal community are beginning to conclude that there must be a better way to handle DUI offenses and are increasingly turning to the concept of therapeutic justice as that better way.

Therapeutic justice is a criminal law concept which envisions using the criminal justice system to heal those who pass through it in addition to punishing them in the hopes of preventing repeat offenses. Therapeutic justice stresses counseling and support teams at all stages of the legal process from arrest to trial to jail or probation and sometimes beyond.

In Phoenix, Arizona there is program called “DUI Court” which serves as a real-world laboratory for testing the principles of therapeutic justice. DUI Court is not a traditional court deciding guilt or innocence – everyone who enters the program has already been found guilty and sentenced in a regular criminal court proceeding – but rather it is part of the probation process. Participants make a contract with the judge to abide by strict requirements. They must wear an ankle bracelet that detects alcohol consumption and attend alcohol-recovery meetings.

Probationers report compliance with their probation contracts in open court in the presence of the judge, probation offer, defense counsel and prosecutor. Failure to comply may result in additional jail time; graduation is the reward for compliance. Graduation or failure is judged on the facts of each individual case by the judge with input from counsel.

The program was created partially in response to the enormous caseload of the Maricopa County Superior Court, which handles more than 3,000 aggravated felony DUI cases each year. That means the Court sees more than 3,000 DUI cases in which the defendant is a repeat offender or was extremely drunk. Something is not working with the zero-tolerance, .08 DUI laws in Arizona.

Lawyers across the country echo the same sentiment about DUI laws in their own states. Many DUI defense attorneys conduct informal alcohol abuse triage when they do client intake. They ask about family history of alcoholism, drinking history, mental health history, and current mental health status. Often, attorneys make referrals to psychologists, alcohol and drug counselors, and support programs such as Alcoholics Anonymous.

With a probation program like DUI Court, the whole burden for preventing repeat offenses need not fall on the attorney. The criminal and mental health care systems can share the burden. This is especially helpful since both systems have more resources and training than individual attorneys. In sharp contrast to the usual process where defendants convicted of DUI are imprisoned but then put back on the streets and eventually behind the wheel, where without the tools to quit many continue to drive drunk, DUI Court uses a support team to draw DUI offenders into a process whereby they address serious drinking issues or learn how to properly handle stress, social drinking and decision making.

The Court has been in effect since 1998, and since then only about 35% of participants have failed to graduate or been arrested for DUI offenses.