Friday, March 16, 2018

Probation Conditions: A Perennial Favorite

Is this necessary? Maybe. 
State v. Urban, 2018 VT 25

By Elizabeth Kruska

Probation conditions! Again! We should be good at this by now!

So here we go into this one. Mr. Urban was convicted of some assault offenses and received a suspended sentence with probation. With probation comes probation conditions. As we know, probation conditions are supposed to be tailored to the individual situation so as not to be overbroad.

During Mr. Urban’s sentencing, he reserved the right to appeal the imposition of the so-called “no alcohol” condition. It’s called that because it prohibits the purchase, possession, or consumption of alcohol. We lawyer-types don’t always overthink everything, I promise. Mr. Urban argued that the “no-alcohol” condition couldn’t be imposed because of a SCOV decision in State v. Albarelli, which struck down a similar condition for a defendant on public policy grounds.

Mr. Urban argued that an outright prohibition on alcohol is contrary to public policy and also that it was unnecessary to his future rehabilitation. He pointed out that he stipulated that he is not an alcoholic, and also that a complete ban on his using alcohol is unduly restrictive to his liberty.

SCOV says no, and affirms the trial court. First of all, probation conditions are imposed within the trial court’s discretion. That means the trial court has to be the one to fit the conditions to the situation. And conditions will be upheld as long as there’s a reasonable basis for the trial court to have imposed them. Mr. Urban would have the burden to prove that the trial court abused its discretion in imposing the conditions. It’s like pole vaulting; the bar is high.

SCOV first looks at the Albarelli decision. Albarelli didn’t say that the “no-alcohol” condition could never be imposed. The decision incorporated the legislative mandate that alcoholics and alcohol abusers could no longer be prosecuted solely for alcohol consumption.

This seems like a no-brainer, but in practice, here’s what would often happen. Defendant gets charged with some sort of offense that he or she committed while using alcohol. They’re brought to court and plead not guilty, and are released with a condition of release not to drink. Most people can do this. But people who are physically dependent on alcohol can’t do it—at least not without experiencing very serious physical effects. So, they keep on drinking, and then get arrested again and again (and sometimes again and again and again) for violating the court order that says not to drink. That’s criminalizing consumption of alcohol for someone who can’t not consume alcohol.

This is sort of a narrow slice of criminal defendants, though. And Albarelli didn’t say that the “no-alcohol” condition was inappropriate for everyone. Indeed, as long as the probation condition is reasonably supported by the facts of the case and the information in the record, the condition is valid. Again, Mr. Urban had the burden to prove otherwise. SCOV’s position is that if Mr. Urban knew he was an alcoholic or alcohol abuser, he should have presented that information at the time of sentencing. He knows himself and his history better than anyone else in the room. Because of that, it’s more appropriate for him to proffer that information than to try to force the State to argue that he isn’t an alcoholic and therefore the condition is potentially appropriate.

So, because there was no such showing on Mr. Urban’s part, SCOV now turns to determine whether the trial court abused its discretion in imposing that condition.

Abuse of discretion is also a little like pole vaulting. The bar is high. Unfortunately, Mr. Urban doesn’t clear this one, either.

He tries to argue that the condition isn’t reasonable because he wasn’t convicted of an alcohol offense, and because there would be a less restrictive condition available to be imposed. He also argues that for an adult of legal drinking age, consumption of alcohol is legal, and to prohibit it would be unduly restrictive.

SCOV agrees this wasn’t an alcohol offense in the way, say, a DUI is an “alcohol offense.” But the underlying facts were a “public brawl where defendant committed an aggravated assault while drunk and armed with a knife.” SCOV says there might be less-restrictive conditions, but the court took the facts, including the alcohol involvement, into consideration when it imposed the “no-alcohol” condition.

Mr. Urban also challenges some other conditions that were imposed, but to which he did not raise an objection at the time of sentencing. His argument, partly, is that the trial court should have made findings about those conditions, too. But, as SCOV points out, those conditions were stipulated to by the parties and there was no objection, so there really wouldn’t be a need for the court to make findings there.

I noticed that one of the conditions Mr. Urban wants stricken is one that he had to complete the CRASH program, which is a DUI-specific class. This wasn’t a DUI, so it seems like the parties ought to agree to strike that condition. But that’s just me, as an outsider, making an observation.

Also, there are nine footnotes in this opinion. I find that delightful.

Affirmed.

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