Pair challenge probation use in DWI cases

Garland County terms, fees violate 2 state laws, they say

A pair of attorneys in Little Rock are calling foul on Garland County District Court's long-standing practice of sentencing people convicted of driving while intoxicated to terms of probation along with mandatory jail terms and fines.

In a lawsuit filed Tuesday in Garland County Circuit Court, attorneys Chris Burks and Michael Kaiser say the practice not only violates state law, but runs afoul of the Arkansas Constitution.

The main contentions of the lawsuit are that 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 -- and that the requirement that DWI offenders pay probation fees in addition to all other fines and fees imposed by the mandatory penalties required 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."

Article 16 § 13 of the Arkansas Constitution reads, "Any citizen of any county, city or town may institute suit, in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever."

"The two statutes that deal with probation in DWI cases are very clear," Burks told the Democrat-Gazette on Tuesday. "The plain meaning says that probation is not allowed, period. And the probation fees amount to a tax that Garland County District Court does not have the authority to impose."

[DOCUMENT: Lawsuit against Garland County District Court»]

The lawsuit names Garland County District Court; Professional Probation Services LLC, a private probation company that now contracts to Garland County to provide probation services; and Desiree Skeya, a former court officer in Garland County who is listed as the owner of Professional Probation Services LLC, as defendants in the lawsuit.

The suit names John Mercer, individually and on behalf of others similarly situated, as the plaintiff. Mercer was convicted in 2018 on two DWI counts, and according to court records, was sentenced to one day in jail on the first count and seven days in jail on the second, a total of $3,450 in fines and court costs, suspension of his driver's license, and two terms of probation of not less than six months each, with a monthly $25 probation fee imposed on each term.

According to the lawsuit, a total of 1,734 DWI cases since 2015 resulted in similar sentences being handed down. In addition to asking for a declaratory judgment that the actions of Garland County District Court in those cases be ruled unconstitutional and a violation of due process, the lawsuit asks that "all of the illegally exacted probation tax" be returned, that the court be enjoined in the future from imposing probation or any taxes or fees for DWI offenses not specifically authorized in the law, and that plaintiff costs and attorney fees be awarded.

Mark Allen, chief administrator for Garland County District Court, said late Tuesday that he had only just learned of the lawsuit filing.

"We'll be happy to discuss this with you once I've reviewed the lawsuit," Allen said. "I only just now learned about it though, and I need to review it to know what it's all about."

State Desk on 05/27/2020