Authorization for Continuous Alcohol Monitoring Expanded by S.L. 2012-146

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Five years ago, the General Assembly authorized judges to require that defendants placed on probation for a Level One or Level Two impaired driving offense abstain from consuming alcohol for at least thirty but not more than sixty days as verified by a continuous alcohol monitoring system. Continuous alcohol monitoring systems (CAM) employ ankle transmitter devices that monitor a person’s sweat for the presence of alcohol and transmit those results to a service provider.  While CAM devices look like and operate similarly to other electronic monitoring equipment used by probation officers, the lack of state funding for CAM, as contrasted to that available for other offender monitoring programs—electronic house arrest and GPS tracking—has limited its use and rendered it controversial.  The vendor currently authorized to provide CAM charges an installation fee of $75 plus $12 for each day of monitoring.  At $360 a month, CAM costs far exceed the one-time $90 fee for the electronic device used to monitor house arrest. Acknowledging CAM’s price tag, the General Assembly initially limited to $1,000 a defendant’s total CAM costs and prohibited a court, upon finding good cause that a defendant should not be required to pay, from imposing CAM absent local government funding.

Last year, in an act known as “Laura’s Law,” the General Assembly created a new Aggravated Level One punishment for DWI, which required as a condition of probation abstinence from alcohol as verified by CAM for a minimum of 120 days. The act further authorized judges to require CAM for up to the term of probation for a Level One or Two DWI and eliminated the $1,000 cap and the prohibition against imposing CAM absent local government funding. The legislature also enacted G.S. 15A-534(i), permitting a judicial official to impose abstinence from alcohol and CAM as a pretrial release condition for certain defendants charged with impaired driving offenses.

This year, the General Assembly enacted S.L. 2012-146 (H 494), an act that considerably expands authorization for CAM—both as a condition of pretrial release and of probation—and increases its significance in DWI sentencing.

Pretrial release

S.L. 2012-146 amends G.S. 15A-534(a) to authorize abstinence from alcohol and CAM as a condition of pretrial release for any criminal offense committed on or after December 1, 2012 and to require that any violation of an abstinence/CAM condition be reported by the monitoring provider to the district attorney.

Probation

Similarly, the act broadens from impaired driving cases to criminal cases generally the authorization for alcohol abstinence and CAM as a condition of probation, effective for offenses committed on or after December 1, 2012.  New G.S. 15A-1343(a1)(4a) adds, as a permissible condition of community or intermediate punishment, that the defendant “abstain from alcohol consumption and submit to continuous alcohol monitoring when alcohol dependency or chronic abuse has been identified by a substance abuse assessment.” New G.S. 15A-1343(b1)(2c) also adds as a permissible special condition of probation that the defendant “[a]bstain from alcohol consumption and submit to continuous alcohol monitoring when alcohol dependency or chronic abuse has been identified by a substance abuse assessment.” Amendments to G.S. 15A-1343.2(f) expand a probation officer’s delegated authority to include requiring that an offender submit to continuous alcohol monitoring when abstinence from alcohol consumption has been specified as a term of probation.

New G.S. 15A-1343.3(b) requires that probationers pay fees for CAM directly to the monitoring provider and prohibit the provider from terminating CAM for nonpayment of fees without court authorization.

Amendments to G.S. 20-28(a) permit a court, in sentencing a defendant convicted of driving while license revoked, to order abstinence from alcohol and CAM for a minimum period of 90 days as a condition of probation if the person’s license was originally revoked for an impaired driving revocation. Thus, a court may require CAM under G.S. 20-28(a) without the substance abuse assessment identifying alcohol dependency or chronic abuse that is required by G.S. 15A-1343(a1)(4a) and 15A-1343(b1)(2c).

DWI Sentencing

                Probation under G.S. 20-179

The act also amends G.S. 20-179, which governs sentencing for DWI and related offenses.  Under current G.S. 20-179, CAM is required as a condition of probation for an Aggravated Level One sentence and is authorized as a condition of probation for Level One and Two punishment.  For covered impaired driving offenses committed on or after December 1, 2012, new G.S. 20-179(k2) authorizes a judge to order “as a condition of special probation” for any level of punishment that “the defendant abstain from alcohol consumption, as verified by a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety.”

New G.S. 20-179(k3) permits the court in its sentencing order to authorize a probation officer to require a defendant to submit to continuous alcohol monitoring for assessment purposes if the defendant is required, as a condition of probation, to abstain from alcohol consumption and the probation officer believes the defendant is consuming alcohol. If the probation officer orders the defendant to submit to CAM pursuant to this provision, the defendant must bear the costs of CAM.

                Level One Punishment

The act also amends the mandatory punishment provisions for Level One sentencing in G.S. 20-179(g), effective for offenses committed on or after December 1, 2012. G.S. 20-179(g) currently requires a minimum term of imprisonment of not less than 30 days and provides that the term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 30 days.  Amended G.S. 20-179(g) permits a judge to “reduce the minimum term of imprisonment required to a term of not less than 10 days if a condition of special probation is imposed to require that a defendant abstain from alcohol consumption and be monitored by a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety, for a period of not less than 120 days.” The amendments further provide that if a defendant is monitored on an approved CAM system during the pretrial period, up to 60 days of pretrial monitoring may be credited against the 120-day monitoring requirement for probation.

                Level Two Punishment

The act similarly amends the mandatory punishment for Level Two sentencing in G.S. 20-179(h), effective for offenses committed on or after December 1, 2012.  Current G.S. 20-179(h) requires a minimum term of imprisonment of not less than seven days and provides that a sentence may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 7 days. The act amends these mandatory punishment provisions to allow suspension of a sentence upon imposition of “a condition of special probation” requiring that the defendant “abstain from consuming alcohol for at least 90 consecutive days, as verified by a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety.” If the defendant is monitored on an approved CAM system during the pretrial period, up to 60 days of pretrial monitoring may be credited against the 90-day monitoring requirement for probation.

Cost

New G.S. 20-179(k4) provides that “[n]otwithstanding the provisions of subsections (g), (h), (k2), and (k3) of this section,” the court must not impose CAM if it finds good cause that the defendant should not be required to pay the costs of CAM “unless the local governmental entity responsible for the incarceration of the defendant in the local confinement facility agrees to pay the costs of the system.” Notably, this subsection does not incorporate the CAM requirement for suspended Aggravated Level One sentences imposed pursuant to G.S. 20-179(f3) or the CAM authorization in G.S. 20-179(h1), leaving unanswered the question of whether a judge may impose CAM under those subsections notwithstanding a defendant’s inability to pay.

Impact of S.L. 2012-146

S.L. 2012-146 carries out certain recommendations made by the Division of Community Corrections (DCC) in this 2008 legislative report on CAM.  It expands the use of CAM beyond DWI cases and requires an assessment before CAM may be imposed as a condition of probation for criminal convictions (with certain exceptions). It does not, however, satisfy the DCC’s recommendation that “the use of CAM monitoring should be available to all offenders when warranted, regardless of their ability to pay.” The extent to which the lack of state funding limits judicial officials’ exercise of their broadened authority remains to be seen.

5 comments on “Authorization for Continuous Alcohol Monitoring Expanded by S.L. 2012-146

  1. Does the court have discretion to waive CAM fees?

  2. […] See Related Article:  Expanded Use of Continuous Alcohol Monitoring  […]

    • In simplistic terms it is a breathalyzer for your ankle that measures alcohol approximately every 30 minutes, “continuously” 24-hours a day.

  3. […] There are numerous “monitoring” options available for courts and Judges to impose upon people convicted of DWIs in North Carolina.  At this point, North Carolina DWI laws require the installation of an ignition interlock following a DWI conviction in several instances, including if you blow higher than .14, or if you have a prior DWI conviction in the past 7 years.  In addition, N.C. law continues to increase a Judge’s authorization to require use of a CAM (continuous alcohol monitor), as explained here. […]

    • There is a significant difference in reporting whether or not the car is sober, and reporting if a person is sober. SCRAM CAM is attached to a person and travels with that person regardless of whichever vehicle the person decides to drive. Remember other devices are attached to a single vehicle while most families have multiple vehicles.

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