SAN JOSE — A controversial new program to bill drunk driving suspects for the costs of their arrests, regardless of whether they are eventually convicted, has drawn fire from defense attorneys who say it is unconstitutional.
"In this society, before you have to fork over money to the government, you're entitled to some due process," said Harry Robertson, an attorney in private practice in San Jose. "In this case, the officer writing the citation is all the due process you're going to get."
However, Lt. Steve D'Arcy, who manages the program for the San Jose Police Department, countered, "There's nothing wrong with charging criminals for the emergencies they cause. We're not charging the victims of crimes--we're charging the drivers that plow into cars and kill teen-agers."
San Jose's program, while similar to others around the state, is unusual on two counts. Under a 1985 law, people driving under the influence of alcohol or drugs whose negligence results in an emergency response from a public agency may be billed up to $1,000 for that agency's costs. Most cities implementing the law, as well as the California Highway Patrol, have interpreted "emergency response" to mean the police, firefighter and paramedic time associated with accidents caused by drunk drivers. Most do not bill suspects until after they have been convicted.
San Jose, in contrast, has adopted a broad definition of "emergency response." Such a response is said to begin when an officer turns on the red lights and siren in pursuit of someone who is arrested for drunk driving, whether or not that person causes an accident. And San Jose is billing suspects before they have been convicted, with no provision for returning the suspect's money if he is found not guilty. Defense attorneys say it is this second aspect which disturbs them the most.
"It's the first time, as far as I know, that a person arrested is presumed to be guilty," said Randy Moore, a Santa Clara attorney who specializes in defending drunk drivers. "They're willing to trample over the presumption of innocence."
Joan Gallo, San Jose city attorney, contends that the outcome of the criminal case is irrelevant to the levying of the civil fine. As San Jose interprets the state law, anyone whose behavior gives an officer probable cause to arrest him for driving under the influence of alcohol or drugs, whose chemical tests show the presence of alcohol or drugs above legal limits, and against whom the district attorney files charges, must pay the fine.
Even if charges are dropped and the person is never convicted, he is still liable for the police department's costs in making the arrest.
Few Innocent People
D'Arcy of the San Jose Police Department said that because an estimated 95% of San Jose drunk driving arrests result in convictions, few, if any innocent people would be likely to pay the fine.
Defense attorneys say that while the civil and criminal charges may technically be separate, the assumption of people getting the bills is that they are being charged because they are guilty. They fear that suspects will be intimidated into paying the bills in the mistaken belief that non-payment will affect the outcome of their criminal cases.
A spokesman for state Sen. Edward R. Royce (R-Anaheim), who authored the 1985 measure allowing the billing, said the legislation's original intent was that only those guilty of drunk driving would pay emergency response costs.
"It was not the bill's intent that if the person didn't commit the act, then they're charged," said David Gilliard, senior consultant to Royce. "I'd advise the person who doesn't feel he's guilty not to pay it." But Gilliard said Royce did not plan to amend the legislation.
Since the program began Jan. 26, the San Jose Police Department has billed suspects for about $127,000, and has received just over $10,000 in payments.
Goes Into General Fund
The average bill is for $150, with the money earmarked for the city's general fund. D'Arcy estimates that the city will bill drivers for about $800,000 this year, but expects to recover only half that amount. He said that billing after conviction would mean a lower recovery rate, because people would be harder to track down a year or two after their initial arrest.
About 6,000 people are arrested for drunk driving each year in San Jose.
While the practice of billing before conviction has generated the most controversy here, some also view San Jose's interpretation of an emergency response as questionable. Kent Milton of the California Highway Patrol said the CHP interpreted the law as allowing agencies to recover only the extraordinary costs associated with drunk drivers, not routine costs such as those of arrests. "Under the same theory, why not bill them every time we make a speeding arrest?" he asked.