Wednesday, November 19, 2008

License Suspensions: A Possible Solution

Earlier this week, I blogged on license suspensions, in response to an Enquirer piece on the topic. I suspect that most people don't realize the portion of the municipal court docket devoted to traffic offenses. (If you're curious, go to the Clerk's website and pull up any particular judge's docket for any given day. Any case that has "TRD" in the case number is a non-OVI traffic offense.)

Here's my suggestion: create an expanded "traffic diversion" program for license suspension cases. Not every defendant would be eligible: for starters, I would toss out any OVI suspension, 12-point suspension, or any case involving either an accident or failing to comply with a police officer.

But for those cases (the vast majority) still eligible, we could, if the judges and the prosecutors agreed, do the following. Tell any offender who is on his/her third or lower suspension charge in the past five years that his/her case will be reset in 45-60 days. If the driver is able to come back with a valid license and proof of insurance, then the prosecution will agree to reduce the charges to a single, non-moving violation. If not, then the matter will be set for trial, and--absent a showing of good cause--no continuances will be granted on the trial date. Once you've been through the diversion program, though, you will be ineligible for subsequent diversion for some period of time (five years, perhaps?).

Why is DUS such a problem in municipal court? Judges are reluctant (understandably) to lock people up for DUS offenses. After all, typically, the people who get caught driving under a suspension are poor and are suspended because they couldn't afford insurance. Most of the time, no one was harmed as a result of their offense. Often, courts will grant continuances in order to give someone time to "get valid," setting the case "for plea"--which means while the case is on the docket, the arresting officer isn't required to appear. Usually, if a person's record isn't bad, the prosecution will amend a DUS charge to "failure to display a valid license"--still a first-degree misdemeanor, but one that carries no points. And it's understood that judges usually won't incarcerate individuals who come back with a valid license.

The trouble with amending to an arguably lesser, but still non-moving violation is this: if the person cannot show proof of insurance from the date of the ticket (not the date of conviction), s/he gets suspended by the BMV all over again. And we're back in the cycle. Cases are set for trial not because a defendant actually intends to try the case, but because s/he wants to see if the officer will show up. But that means an officers spends anywhere from part to all of a morning sitting in a courtroom waiting for a case to be called. (And if the officer doesn't show up, the case is either continued or dismissed outright.)

An expanded diversion program could reduce drag on the courts' dockets. People with defenses (stolen identity, for instance) could still opt out and take their cases to trial. But most will want to get valid. And by reducing to a non-moving violation, two things happen: first the individual isn't subject to an FRA noncompliance suspension; and second, the court is able to recover costs. What's more, for those people who entered the program, their cases could be handled entirely in the arraignment rooms--meaning they never get to the regular docket. It'd save the time of judges, prosecutors, police officers, and public defenders.

Such a program would require a great deal of cooperation. The prosecutors (both city and county) would have to agree to it. The judges would have to agree to play hardball with cases that reached their dockets (i.e., no continuances "to get valid"--only for valid, trial related purposes, such as the unavailability of a witness). But it may be possible to work out some system where we can keep reduce the stakes to such an extent defendants will be willing to resolve them at arraignment, before a magistrate.

This proposal is just that: a proposal. There are probably problems I haven't thought of. But I hope it's a starting point for discussion.

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