what happens when you get a dui Offender fact sheet

Cities May Now be Liable for Offender Actions While Under Supervision A recent court decision, Benskin v. City of Fife may make cities liable for the actions of offenders under supervision. In this case, a person under supervision by the city for drunk driving killed Ms. Benskin when he drove his car the wrong direction on a freeway on-ramp. Cities primarily supervise people for drunk-driving and domestic violence related charges. Though most believe community safety is improved by such supervision, cities may now be on the hook for damages caused by people while under supervision. For drunk driving related charges, state law requires supervision, so we have to do it. Cities don’t have a choice. They must provide court-related services, whether by contract or through their own court. Current state law requires that every city provide for the “prosecution, adjudication, sentencing, and incarceration of misdemeanor and gross misdemeanor offenses” occurring within their jurisdiction. Nearly 120 cities provide these court-related services through their own municipal court. The others contract with their county. Regardless of the structure the court takes, every city is responsible for these activities. Most contracts are structured to make the city carry the liability. If they are not currently structured that way, look for that change to be made. The applicable court rule defines the probation department as “an entity that provides services designed to assist the court in the management of criminal justice and thereby aid in the preservation of public order and safety… The method of providing these services shall be established by the presiding judge of the local court to meet the specific needs of the court.” Benskin declares supervision to be an executive function – ending judicial immunity and opening cities up to liability. Judicial immunity was thought to extend to activities of the probation department until the December, 2005 Court of Appeals decision in Benskin v. City of Fife. In that decision, a person under supervision for driving while under the influence by the Fife court was involved in a hit and run accident, killing Ms. Benskin. Consistent with generally accepted practice, Fife initially had the case dismissed on summary judgment. In granting summary judgment, the lower court found that the probation department was an arm of the court. Because it was established under the court rule, the probation department, like the judge, was cloaked in judicial immunity. continued Supervision, as an arm of the court, enjoyed judicial immunity. To take advantage of immunity that applies to judges for sentencing decisions, cities have generally placed offender supervision under the auspices of the court – usually referred to as “bench supervision.” Under this type of arrangement, court rules place the decision to establish a probation department under the court and define its core services. Association of Washington Cities ● 1076 Franklin St SE ● Olympia, WA 98501 ● www.awcnet.org ● (360) 753-4137 The court also declared that no special relationship between the court and the person under supervision existed. However, the family of Ms. Benskin had the summary judgment overturned on appeal. The Court of Appeals declared that the city’s probation department does not qualify for judicial immunity because its activities are executive branch functions, not judicial ones. And further, a special relationship exists under state law between the person being supervised and the court staff doing the supervision. Therefore, the probation department owed a duty to protect the public from foreseeable behavior associated with the conditions of the order. If that duty had been breached would be a finding of fact – sending the case to court for a jury to decide. days in jail, or impose conditions that are subject to supervision. The only choice left is to sentence every DUI offender to the full 365 days in jail – assuming the jail capacity and the judicial will to do so. A legislative change is needed. The mandate in state law that DUI offenders are either jailed for their full sentence, or placed under supervision, leaves cities no real discretion. Further, many believe our communities are safer when domestic violence offenders or drunk drivers ARE supervised. The only real solution is a change in state law. AWC will be working with interested stakeholders to pursue the necessary direction from the Legislature to the courts as to the level, and under what circumstances, liability may attach to our supervision activities. State law requires supervision for DUI, unless sentenced to 365 days in jail. To avoid this liability, a reasonable approach would be to end supervision. However, state law doesn’t allow it. Under RCW 46.61.5055(9)(a), a court must either sentence a person convicted of a DUI to the full 365 For more information Contact Tammy Fellin of AWC at tammyf@awcnet.org or (360) 753-4137.