Lawyers Near Showdown on Drunk Driver Penalities in El Cajon

Times Staff Writer

Some East County defense lawyers, worried that the crusade against drunk driving has gotten out of hand at the El Cajon Municipal Court, are heading toward a confrontation with the bench.

Several judges on the court have rejected the lawyers' request that they halt the practice of requiring many accused drunk drivers to attend Alcoholics Anonymous meetings as a condition of winning pretrial release from jail on their own recognizance.

More than 60 defendants each month in El Cajon have been ordered to attend AA meetings, according to lawyers who practice in the court. Judges in the other three county municipal courts--in San Diego, Chula Vista and Vista--do not impose AA attendance as a condition of release.

State law, the El Cajon attorneys say, entitles defendants to so-called "OR" (own recognizance) release unless they are found to be a danger to the community or to be unlikely to show up for later court appearances. Denying OR release unless a defendant attends AA meetings, the lawyers contend, is tantamount to declaring suspects guilty before they've had their day in court--in violation of their constitutional rights.

The judges defend the practice, arguing that a sober defendant is less likely to skip court or to commit more offenses pending the disposition of his case. The defense bar plans to test the judges' stance with an appeal in the next few weeks, probably on behalf of all of the scores of defendants required over the last few months to attend AA meetings.

"The purpose of setting bail or making conditions of an OR release pursuant to law is only to assure the presence of the person in court--not to achieve rehabilitation, because nothing has been adjudicated at the time," said El Cajon attorney Tom Adler, who has been meeting with East County judges in the dispute.

"The Constitution presumes a person innocent until proven guilty," added attorney Dan Bacal. "AA conditions would certainly seem like punishment prior to being found guilty."

Though policies vary from judge to judge and case to case, the general practice of the East County judges is to require AA attendance for three categories of drunk driving defendants, according to Presiding Judge Larrie Brainard: drivers whose test results show a blood alcohol level of 0.20% or higher, repeat drunk driving offenders, and defendants who refused to take a field sobriety test.

"We want people to be able to show up, to show up sober and to not have any more offenses in the meantime," Brainard said.

Judges in El Cajon have imposed the meeting attendance condition for years, Brainard said, but he acknowledged that the practice has probably become more widespread and consistent in the last several months, prompting the defense bar's distress.

The judges also order defendants to abstain from drinking while their cases are pending, he said. Some judges have even required drunk driving suspects to take a drug that causes mild sickness when consumed with alcohol as a deterrent to drinking while they await trial, Brainard added.

"We have a fairly strong history to rely on in terms of the fact that abstinence and the meetings make a difference," he said.

The defense bar, however, insists that AA meetings have little relevance to a defendant's performance on bond.

"The issue is that Alcoholics Anonymous is not in a position to ensure that people appear in court, nor are they interested in doing that," Adler said. "They are an alcoholism rehabilitation program."

Many of the accused drunk drivers being ordered to attend AA meetings are not alcoholics at all, he insisted, but merely social drinkers with the bad luck to be stopped by police when their blood-alcohol levels are high.

"Many of the people receiving these conditions are not alcoholics. They are not suffering from a disease," said Bacal. "They are people who had a little too much to drink at a Padre game, at a wedding or at some other celebration. It's an isolated type of incident."

Scientific studies undermine the defense lawyers' arguments, Brainard insists. One Massachusetts study found that 7 of 10 first-time drunk driving offenders are problem drinkers, he said. Other studies show that most people who can tolerate enough alcohol to score 0.20% on a blood-alcohol test--the equivalent of drinking about 12 cans of beer--are alcoholics, Brainard said.

According to Bacal, the El Cajon release policies are especially unfair when defendants refuse to attend AA meetings.

In such situations, the judges--lacking any grounds for denying the suspects bail--order the defendants to post bonds of $1,000 or $5,000, Bacal said. More affluent defendants can post the bond and avoid going to AA meetings, while poorer defendants are obliged to attend if they want to get out of jail, he said.

"What we're basically saying is, 'You're a hazard to society because you have a high blood-alcohol level, unless you have money, in which case you're not a danger to society,' " Bacal said.

Brainard, though, said bail would be imposed on more defendants if the judges did not offer the option of attending AA meetings.

True to its name, Alcoholics Anonymous is a silent middle-man in the debate. "We do not promote Alcoholics Anonymous either coercively or any other way," said a spokesman at the organization's San Diego office. "If some judge tells somebody to go to AA meetings, that's the judge's prerogative."

Mothers Against Drunk Drivers, which has monitored several cases recently in El Cajon courtrooms, also has not taken an active part in the dispute. But Fran Marks, director of MADD's San Diego chapter, said the group strongly supports the judges' position.

"All I can see is that it's going to help save lives," Marks said. "It's a good deterrent. I would hope the other judges in San Diego County would follow up with it."

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