Blog

By Jill K. Sanders, Esq.

A sentence of probation for Driving While Intoxicated (“DWI”) often involves a probation officer monitoring the probationer for consumption of alcohol. For instance, a popular tool for probation officers is a SCRAM bracelet, an electronic alcohol monitoring device. In a recent case before New York’s highest court, one defendant challenged the requirement that he pay for the bracelet.
 

What is a SCRAM Bracelet?

We recently discussed the SCRAM bracelet in our blog. A SCRAM (“Secure Continuous Remote Alcohol Monitoring”) bracelet measures the wearer’s alcohol intake. It measures blood alcohol level through the wearer’s perspiration every 30 minutes. However, there is usually an initial deposit required and an installation fee. Thereafter, there are also daily or monthly maintenance charges.
 

Why Did the Defendant Appeal?

In People v. Brian Hakes, the defendant pled guilty to felony DWI. He was sentenced to six-month jail sentence concurrent with five years’ probation. As part of probation, the court required him to wear and pay for a SCRAM bracelet upon his release from jail.

After paying for the SCRAM bracelet for several months, the defendant stopped making payments. The bracelet was removed by the monitoring company. As such, his probation officer then charged him with violating probation. The defendant claimed an injury kept him from working, and thus he couldn’t afford the fees. At a probation violation hearing, the court revoked his probation. He was sentenced to 1 to 3 years in state prison.

The defendant appealed, and the Appellate Division – Third Department reversed. It held “that the sentence imposed was illegal because sentencing courts cannot require a defendant to pay for the cost of electronic monitoring.” Thereafter, the Court of Appeals considered the issue. On appeal, the defendant argued that while such monitoring may be permissible, “the additional requirement of payment is a punitive measure that serves no public safety or deterrent goal.”
 

Are SCRAM Bracelets Authorized By Law?

First, the Court determined whether a SCRAM bracelet requirement was permissible. Sub-section 4 of Penal Law § 65.10 authorizes a sentencing court to require a defendant “to submit to the use of an electronic monitoring device … where the court, in its discretion, determines that … such condition will advance public safety, probationer control or probationer surveillance.” A SCRAM bracelet is similar to the electronic monitoring allowed by statute.

“The decision to sentence a defendant to probation as an alternative to jail or prison reflects a determination by the sentencing court that both society and the defendant would be better served by the individual’s closely supervised release into the community, provided that certain reasonable conditions are met.”

In terms of paying for such a bracelet, the Court noted that many other probation conditions require financing defendant. For example, this includes psychiatric testing, counseling, and education.
 

Must a Defendant Pay for the SCRAM Bracelet?

Next, the Court considered whether a court is permitted to require a defendant to pay for a SCRAM bracelet. It held that the sentencing court can impose this requirement. The punitive or deterrent effect of such payments is “dwarfed by the … goal[ to] to protect the public from alcohol-related offenses while assisting a defendant’s rehabilitation during their probationary term.”

Yet the Court noted that there will be situations where a defendant will be unable to afford such a device. “[I]f, at the imposition of the sentence or during the course of probation, a defendant asserts that they are unable to meet the financial obligations attendant to a certain condition, the sentencing court must hold a hearing on the matter.” Thereafter, if a defendant has demonstrated his inability to pay, the court “must attempt to fashion a reasonable alternative to incarceration.”

The case was remanded to the trial court for a determination of whether the defendant had committed a “willful violation of a condition of his probation” in not paying for the bracelet.
 

References:

• People v. Brian Hakes, 2018 NY Slip Op. 08538 (2019). Available at: https://www.nycourts.gov/ctapps/Decisions/2018/Dec18/139opn18-Decision.pdf (last accessed January 28, 2019).
• Penal Law § 65.10

Photo courtesy of http://www.scramca.com/.