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DUIs may go to drug court

Ground-breaking ruling: Chief Justice Ian Kawaley (File photograph by Akil Simmons)

Motorists convicted of drink-driving could be referred to Drug Treatment Court by judges for the first time after a ground-breaking decision by the Supreme Court.

Chief Justice Ian Kawaley ruled that section 68 of Criminal Code, which provides for the DTC programme, embraced alcohol addiction and allowed magistrates to sentence those convicted of traffic offences to DTC.

His judgment followed a legal challenge by two residents with a history of impaired driving who sought to overturn their sentences to access rehabilitation at DTC.

Lawyer Saul Dismont, who represented two individuals, told the court his clients suffered from addiction to alcohol and attributed their offending behaviour to their substance misuse.

“At sentencing they revealed their addictions but their requests for Drug Treatment Court were refused,” Mr Dismont said.

After the judgment Mr Dismont told The Royal Gazette: “Despite increasingly harsh punishments people are still drink-driving, even some that have been disqualified for the third time and know they are facing imprisonment.

“On most occasions that has to be evidence of a drinking problem, and now with this ruling such individuals can be diverted to Drug Treatment Court to address the cause.

“With DTC’s phenomenal success rate, estimated to be above 75 per cent, the roads are likely to become safer than just taking someone off the road, who invariably continues to drive during that period anyway.

“Some may say that DTC will be an easy ride, or that it will be easily manipulated, but consider that the court already has a vast experience of dealing with individuals suffering from addiction. Also, any person participating in the DTC programme is electing to be subject to very strict requirements.

“If they breach the requirements they can be sent to prison for up to 20 days and they can be terminated from the programme and resentenced.

“Though the ruling opens DTC’s door to DUI offences, my clients have not been accepted into the programme yet. That opportunity is the next stage. It should be recognised that this was not a legal aid case.

“My clients felt so strongly about the importance of having DUI offences in DTC that they paid for the case themselves, and not just for their potential benefit but for all of those that suffer from the same affliction, and to help keep our roads safe.”

In the ruling that was released on Tuesday, Mr Justice Kawaley declined to consider the practical question of whether or not a suitable DTC treatment programme could be prepared in relation to alcohol.

The Chief Justice said that issue was a question for the Magistrates’ Court to decide in each case after determining if an offender was eligible for DTC.

“In my judgment it is important to distinguish between two questions,” Mr Justice Kawaley said. “The first is the question of whether section 68, properly construed in conjunction with the Eligibility Notice, includes or excludes traffic offences.

“The second question is whether or not as a matter of legislative or executive policy, traffic offences ought to be excluded. Only the first question is a matter for this court and falls to be determined in the context of the present scheme. The second question is a matter for the Legislature and the Executive.

“There is no ambiguity in the scope of section 68 and the Eligibility Notice and in my judgment there is no credible basis for this court finding on the basis of mere argument unsupported by evidence that the inclusion of eligible traffic offences in the DTC regime would be obviously unworkable.”

The Chief Justice added: “The Magistrates’ Court in two separate cases declined to consider referring the appellants’ cases to the Drug Treatment Court on the explicit or implicit basis that section 68 of the Criminal Code does not apply to traffic offences. This court has concluded not without some difficulty that this jurisdiction does in fact exist and that, as was tacitly agreed below, section 68 embraces alcohol addiction as well. This conclusion is based upon interpreting section 68 of the code in conjunction with the current version of the Eligibility Notice issued by the Minister. Whether the appellants are suitable candidates for the DTC can now be considered on the merits for the first time by the Magistrates’ Court.”