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Conditions of pre-trial release – alcohol treatment and testing; individualized determination

State v. Joseph J. Wilcenski, 2013 WI App 21; case activity

Conditions of pre-trial release – alcohol treatment and testing; constitutionality

Waukesha County has adopted a policy that all persons arrested for OWI as a second or subsequent offense who live in one of ten counties be released from custody on the condition that they participate in a “pretrial intoxicated driver treatment program.” Wilcenski argues that this condition violates the constitutional rights to medical privacy and freedom from unreasonable searches. The court of appeals rejects these claims:

¶11      Wilcenski bases his right to privacy claim on several Wisconsin statutes that protect the confidentiality of health care and treatment records.  See Wis. Stat. §§ 146.81-146.84.  He does not allege that the condition violates these statutes, but that the imposition of the condition forces a defendant to give up these confidentiality protections to be released from custody.  We are not persuaded.  Although one charged with a crime does not lose all his rights, our statutes contemplate reasonable restrictions and permit a great deal of discretion in setting conditions.  See Wis. Stat. §§ 969.02(3) & 969.03(1).  A person charged with a crime and released from custody on conditions while he or she awaits trial does not have the same expectations of privacy as a person not charged with a crime.  See In re York, 892 P.2d 804, 813 (Cal. 1995).  The fact that a defendant charged with a crime may have to give up some of his or her privacy protections in lieu of sitting in jail awaiting trial does not render such bail conditions unconstitutional.  See id.

Nor does the program violate the right to privacy in one’s personal information recognized in Whalen v. Roe, 429 U.S. 589 (1977). The information collected is, like that in Whalen, given to representatives of the state in carrying out a legislative initiative (under Wis. Stat. § 85.53) and only limited kinds of medical-related information may be disclosed publicly (i.e., to the court) (¶¶12-13).

Finally, the court rejects Wilcenski’s Fourth Amendment claim:

¶14      Wilcenski also argues that, in conditioning his release on a program that involves drug and alcohol testing, the circuit court has impermissibly forced him to consent to unconstitutional searches.  Although the Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution generally prohibit searches executed without a warrant issued upon probable cause, exceptions are made “when ‘special needs beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’” State v. Guzman, 166 Wis. 2d 577, 587-88, 480 N.W.2d 446 (1992) (citation omitted).  Such a special need has been found to exist when drug testing is employed to protect the safety of the public. See id. at 588 & n.6. This exception thus would apply to testing as part of a condition of release imposed to protect public safety.

Rejection of the facial constitutional challenge seems consistent with the relatively few decisions from other jurisdictions addressing similar programs, which have upheld treatment as a condition of release if based on the specific circumstances. As noted below, the court of appeals also holds the condition cannot be imposed automatically in every case; instead, there must be an individualized determination about the appropriateness of the condition.

The case does not raise or address any as-applied challenges. For instance, as the court describes it (¶5), the program charges fees for participation, which Wilcenski contends can reach $1200 (and costs are not refunded if a defendant is found not guilty). There will be an equal protection issue if an indigent defendant must sit in jail because he cannot afford the fees. Also, the program may disclose information to the court and other parties regarding certain aspects of the defendant’s treatment (¶5), and the opinion says (¶13) a court has the authority to receive information on whether the defendant has adhered to an appropriately applied release condition. But can information from the program be used against the defendant at trial or sentencing, or was its release compelled because the defendant participated in the program in order to get out of jail before trial? If compelled, is the information excludable, like a probationer’s admissions during treatment required as a condition of probation? SeeState v. Peebles, 2o10 WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212. Practitioners with clients released under a treatment condition like Waukesha’s should be attuned to these potential issues.

Conditions of pre-trial release – individualized determination

A blanket judicial policy of imposing certain conditions of release based on only one factor—nature of the offense—without individualized determination that that condition is appropriate represents an erroneous exercise of discretion:

¶17      …. We agree with the State that the pretrial program is a reasonable condition of release to protect the public from some repeat drunk driving defendants. We disagree with the State that a blanket program applicable to all those falling within a certain class is an appropriate act of the judiciary. The judiciary has a duty to consider on an individual basis the appropriate conditions of release for one charged with a crime, and we do a disservice to both the community and those charged with crimes to delegate our obligation to a blanket program….

While the court agrees with Wilcenski that the blanket policy was wrong, it didn’t help him, for two reasons. First, he’s been convicted and sentenced, so the condition of release is moot; the court of appeals decides the issue because the issues might otherwise evade review, and because Wilcenski filed a petition for interlocutory appeal that, though denied, preserved the issue (¶2 n.2). Second, the circuit court ultimately did not erroneously exercise its discretion in imposing the conditions of bail upon Wilcenski because, after he asked the condition be removed or modified, the court made an individualized determination that the treatment and monitoring were appropriate conditions of release in his case (¶18). If you’re looking for larger principles, try State v. Martin, 100 Wis. 2d 326, 327, 302 N.W.2d 58 (Ct. App. 1981) (court’s uniform refusal to consider probation as disposition is “mechanistic approach to sentencing is not the exercise of sentencing discretion”); and State v. Ogden, 199 Wis. 2d 566, 544 N.W.2d 574 (1996) (same: erroneous exercise of discretion to “appl[y] a uniform sentencing policy of refusing ‘Huber’ release to child care providers except when ‘absolutely essential'”). That principle is entirely consistent with the one employed here:

¶19      We do not properly exercise our judicial function if we look solely to the class of the defendant brought before the court, i.e., treating all drunk drivers the same on a pretrial basis.  We cannot, and should not, move to a system of pretrial justice that dispenses with an examination of the appropriate release conditions for those charged with crimes in our communities.  Such a blanket assessment may be either overinclusive or underinclusive of appropriate conditions depending upon the facts presented.  A bail-setting program that operates as a “one size fits all” system is a system preordained to fail the criminal justice system.

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