Defendant dropped, 1 added to Arkansas lawsuit over DWI sentences

Attorneys suing the Garland County District Court over DWI probation sentences amended the complaint to drop one defendant and add another.

They also highlighted statutes that they say illustrate their contention that the court is using probation sentences contrary to state law.

The main contentions of the lawsuit -- originally titled John Mercer, individually and on behalf of others similarly situated v. Garland County District Court, Professional Probation Services, LLC; and Desiree Skeya -- filed May 26 by Little Rock attorneys Chris Burks and Michael Kaiser, are that the Garland County District Court's practice of sentencing DWI offenders to probation is prohibited under two state statutes: Arkansas Code Annotated § 5-4-301 and Arkansas Code Annotated § 5-4-322.

They also say that the requirement that DWI offenders pay probation fees, in addition to all other fines and fees imposed by the mandatory penalties for such offenses, amounts to an illegal exaction in violation of Article 16 § 13 of the Arkansas Constitution.

Arkansas Code Annotated § 5-4-301 (a)(1)(C) prohibits the imposition of probation for the offenses of driving or boating while intoxicated. Arkansas Code Annotated § 5-4-322 (b)(1), which enables district and city courts to impose probation under specific parameters, states: "This section regarding probation and probation fees does not apply when the defendant is charged with violating the Omnibus DWI or BWI Act, § 5-65-101 et seq., or the Underage DUI or BUI Law, § 5-65-301 et seq."

A day after the filing of the lawsuit, Hot Springs City Attorney Brian Albright told the Arkansas Democrat-Gazette that Burks and Kaiser had incorrectly interpreted the law in drafting the complaint.

"Those statutes do deal with a prohibition about probation," Albright said. "But in terms of those two statutes, it's more of a suspension, not terms of post-conviction probation."

Albright said that farther down in the statutes, Arkansas Code Annotated § 5-65-108 does allow the imposition of post-conviction probation as a supervisory tool for DWI offenders, stating: "Utilize probationary supervision, in addition to the mandatory penalties required for a violation of § 5-65-103, solely for the purpose of monitoring compliance with his or her orders."

The amended complaint, which added Southwest Probation Services Inc. and owner Brady Harmon, was filed in Garland County Circuit Court on Tuesday. Southwest Probation Services Inc. provided probation services in Garland County up until this year, when the contract was awarded to Professional Probation Services.

The complaint acknowledges the legality of DWI probation as a supervisory tool, but it contends that with the requirement of drug and alcohol testing imposed by the district court, the probation sentence goes beyond what Kaiser said is a narrow exception allowed by the statute.

"They're imposing conditions of supervised probation that, if you don't follow, can be revoked and you can go to jail," Kaiser said. "That is not what the very narrow exception carved out by 5-65-108 permits, not at all."

Kaiser said the exception hinges on the words "solely for the purposes of monitoring compliance" with the orders of the court, which he said, in a DWI case, are already outlined in the statutes covering the mandatory penalties for DWI.

"It would allow them to monitor the payment of fines and court costs, and it would allow monitoring the completion of the two mandatory alcohol education courses," he said. "Everyone has to do the victim impact panel through Mothers Against Drunk Driving, and then everyone is required to be screened through the Department of Behavioral Health Sciences to recommend a level one or level two drug and alcohol safety education course."

Kaiser said the imposition of drug and alcohol testing and any other conditions that could be regarded as punitive fall under a different statute, Arkansas Code Annotated § 5-4-303, which outlines a long list of conditions that may be imposed with the imposition of probation as punishment, which he said is legally prohibited in DWI cases.

Regarding the probation fee, Kaiser said the law allows for imposition of a "reasonable" probation fee in DWI cases, but he said the monthly $25 fee uniformly imposed on all offenders sentenced to probation is excessive.

"What is a reasonable fee, I don't know," he said. "But I would argue -- and I think we'll eventually get to -- if this is just to monitor compliance, it should be less than the fee for actual supervised probation."

All four judges in Garland County Circuit Court -- John Wright, Wade Naramore, Lynn Williams and Marcia Hearnsberger -- recused from the case. On Monday, Williams sent a letter to the Administrative Office of the Courts requesting that a special judge be appointed to hear the lawsuit. Such recusals, Kaiser said, are customary in lawsuits such as this.

"I'd be concerned if they didn't recuse," he said. "It would have been a conflict of interest for any of them to hear this case."

An agreed order signed Monday dismissed Skeya from the lawsuit and ordered her probation company, Professional Probation Services, to audit payments taxed solely from DWI probation and to remit those funds into the Registry of the Court to be held until the lawsuit is decided.

Harmon, returning a phone message for comment Wednesday afternoon, had little to say regarding the lawsuit, citing the advice of his attorney.

"He did say I can tell you that we are aware of the lawsuit and have not been served yet, but we do understand that we have been named in it," Harmon said. "We're reviewing it, but other than that, I have no comment at this time."

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