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August 2, 2012

Montana case shows technology in addition to — or rather than? — toughness needed to stop some drunk drivers

Regular readers know that I consider drunk driving to be a serious and dangerous crime which merits serious and dynamic criminal justice responses.  And this new local story out of Montana, headlined "Released from prison in June, Billings man charged with DUI No. 13," reinforces my sense that we need to use technology as well as (or perhaps in lieu of) tough prison sentences to keep persistent drunk drivers from being an enduring menace to innocent persons on our nation's roadways. Here are the basics:

Bond was set at $100,000 on Wednesday for a Billings man charged with his 13th drunken-driving offense less than six weeks after he completed a 10-year stint behind bars for his 12th.  John Harvey Hoots, 53, appeared in Justice Court by video from the county jail following his arrest Tuesday evening.  Judge Larry Herman set the high bond after prosecutors said Hoots has 12 prior DUI convictions and a criminal record in five states.

Hoots was released from prison on June 25 after serving a 10-year sentence his 12th DUI. Prosecutors said Hoots could face designation as a double persistent felony offender, which carries a minimum sentence enhancement of 10 years.

According to court records, a man called police at about 7:30 p.m. Tuesday to report that Hoots was outside the man’s house on South 28th Street yelling, taking off his clothes and “displaying his rear end in an offensive manner.”  Hoots left, but returned a few minutes later and walked to the front of the man’s house and said he had a gun, the man told police.

When officers arrived, the man pointed out Hoots as he was driving away in a pickup truck.  The officers tried to stop the truck, but the driver continued for some distance before pulling into a parking lot. Hoots showed signs of intoxication, and officers said they found a plastic beer cup in the truck. No gun was found, but Hoots was “uncooperative, would not listen, and displayed an aggressive attitude toward the officers,” court records state....  Hoots is charged with felony DUI and misdemeanor counts of driving without a valid license and driving without insurance....

Prosecutors said Hoots has eight prior DUI convictions in Montana and four DUI convictions in other states.  The most recent DUI conviction and prison sentence stemmed from his arrest in April 2002, when officers stopped his vehicle after receiving a report of a gas drive-off.  Hoots was on probation for a prior DUI at the time.

Whether he is viewed as sick or evil or given some other diagnostic label, it would seem beyond any and all dispute that John Harvey Hoots is simply incapable of keeping himself from getting drunk and than getting behind the wheel.  Usefully, the decade he spent in prison from 2002 to 2012 helped keep Montana roads safe from this menace (and may well have saved untold number of innocent lives from the roadway carnage Hoots risks causing when a free man). 

But while the roadway safety benefits of keeping Hoots incarcerated for a decade must be acknowledged, so too must be the significant costs of incapaciting Hoots in his own heartbreak hotel in which taxpayers foot his room and board.  And, sadly, Hoots obviously did not learn his lesson or get rehabilitated during this extended stretch in the state pen.  Thus, one cannot help but wonder if Montana now, rather than house Hoots behind bars for another decade or more, might seek to develop some (big brother?) technological means — e.g., GPS tracking with a SCRAM bracelet, medication that makes user sick if he drinks liqour — to keep the roads in the Big Sky State safe from Hoots in a more cost effective way.

August 2, 2012 at 02:42 AM | Permalink

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Comments

Montana should buy or lease a ▬►REMOTE◄▬ island and place folks such as he on said island , with electric golf carts as means of transportation .

Furnish him and others with a full set of Boy Scout Merit Badge books.

If addicted to alcohol , it is difficult to understand how ten years would not “dry him out” .

Docile Jim Brady , Columbus , Ohio

Posted by: M. Blank | Aug 2, 2012 2:53:51 AM

Though lamentable, the risk of not jailing Hoots far outweighs the benefit of saving the expense of housing him, even if you consider the new technologies/medicine mentioned in the article.

Posted by: Stanley Feldman | Aug 2, 2012 8:17:35 AM

I agree with Stanley Feldman. A guy this determined to drive while drunk will defeat any technology we try. If he's not incarcerated, it's just a matter of time before he seriously injures or kills someone. He's had enough chances; indeed, more chances than it was ever prudent to give him. Time's up, Mr. Hoots.

Posted by: Bill Otis | Aug 2, 2012 9:27:26 AM

"or perhaps in lieu of"

A welcome and long-awaited caveat. The ten years did nothing to keep the guy from drinking and driving when he got out, but requiring ignition interlocks for repeat offenders would have. Plus, the existence of extreme cases like this that require lots of supervision mitigates against the argument for requiring interlocks on first offenders. Supervision resources IMO should be husbanded to apply to those posing the greatest risk.

I do, however, object to the facile and false juxtaposition of strict probation with "toughness." Probation is more punishment than that tired meme acknowledges and in Texas many people choose incarceration for DWI over probation because supervision conditions are so strenuous. It's a lot easier to sit out a jail sentence than to live sober and actually change one's life habits.

Docile Jim Brady wonders, "If addicted to alcohol, it is difficult to understand how ten years would not 'dry him out'." But it's not difficult at all. Lock up an alcoholic and all you get is a dry drunk. The same is generally true of drug addiction. Incarceration is simply not in and of itself a solution to addiction.

Posted by: Gritsforbreakfast | Aug 2, 2012 9:30:24 AM

Hoots represents an extreme outlier. What to do with Hoots has zero relevance as to how you handle the more prevalent and mundane issue of what to do with the huge cohort of drivers who routinely drive with two to five drinks under the belt.

Posted by: Jardinero1 | Aug 2, 2012 10:18:32 AM

You give people extreme power to deal with the extremists and sooner or later they become extremists themselves coming right at you. We won't begin to mature as a culture until we learn that we just have to eat the extremes. The best reaction to Mr. Hoots or Mr. Holmes (Aurora) is simply a yawn and going about one's business. The risk of doing something far and away exceeds the risk of doing nothing.

Posted by: Daniel | Aug 2, 2012 12:17:38 PM

i'm with bill here!

"Wednesday for a Billings man charged with his 13th drunken-driving offense less than six weeks after he completed a 10-year stint behind bars for his 12th."

dumb idot has done gotten 12 dui's and a 10 YEAR sentence and 6 weeks after getting out...he's got number 13!

he's clearly demonstrated he will not stop and seems to be to STUPID to at least learn to stay home and get plastered.

so time to just shoot the dumb son of a bitch and be done with it!

Posted by: rodsmith | Aug 2, 2012 1:22:47 PM

Jardinero1 --

"Hoots represents an extreme outlier. What to do with Hoots has zero relevance as to how you handle the more prevalent and mundane issue of what to do with the huge cohort of drivers..."

But what we do with Hoots has plenty of relevance to whether Hoots himself gets another chance to kill someone, and the question posed by this entry is what's the correct response to Hoots.

To treat an extreme threat the same way you would treat a more moderate threat is perverse on its face, and almost no one will be buying it.

Posted by: Bill Otis | Aug 2, 2012 1:27:42 PM

Bill,

I don't know for a fact how dangerous is Hoots. Has Hoots killed anyone yet? We don't know. Has Hoots caused bodily harm to anyone? We don't know. In the absence of such knowledge we can't really say he is dangerous. And I am not referring to the probability or likelihood of whether Hoots is dangerous. The Courts and the criminal justice system are supposed to deal in facts not probabilities.

Posted by: Jardinero1 | Aug 2, 2012 2:03:58 PM

I wonder what the commenters think we should do with Hoot's accomplice in this event. I refer to whomever loaned Hoots the pickup. If this accomplice had knowledge of Hoot's prior convictions and recent release shouldn't the law come down as hard on him/her as on Hoot's?

Posted by: Jardinero1 | Aug 2, 2012 5:48:34 PM

There are several forms of impaired driving which are as risky as drunk driving, sleepy driving, texting driving, teen driving, medical problems driving, dementia driving, just old age driving, ice and snow driving, road rage driving.

Technology exists today to enforce the Rules of the Road. From within the car. For example, if you weave several times, the car finds the nearest safe shoulder, pulls over, and turns itself off. If the speed limit is 65 mph on a road, going over 80 should be delimited by the car itself. Because the odds of law enforcement by the police is around 1 in 100, nobody feels compelled to obey them. So go through every red light, get caught one time in 100. Plead not guilty, and accept an offer that will enrich the jurisdiction but not really punish the driver. When the car is enforcing the law, there is 100% prevention of violations of the Rules of the Road.

Posted by: Supremacy Claus | Aug 2, 2012 10:49:20 PM

I had the idea that we install the technology that won't allow a car to start until you can blow less then half a given limit (a requirement for serial offenders somewhere)...but not on offender cars but ALL vehicles. the device would be functional at the time period when most DUIs occur (whenever that is - after 8 p.m. on fri/sat?). minimal burden on non-impaired drivers (esp. relative to the senseless abomination of current TSA "security") and could be paid for as a percentage of alcohol industry profits (that could be mandated to not be passed on to consumers)

govt atty - provide in-house counsel to police

Posted by: Will Coy-Geeslin | Aug 3, 2012 12:10:32 PM

Will,

I drink about one beer a year, and that would be a really crazy year. Why should I or anyone else pay to have this technology installed on my car? Even the greedy alcohol industry? It is a very small subset of all drivers who drive while impaired. Instead of relying on technology to keep drunks from driving, why not revoke their licenses, impound their autos until the end of the revocation period and punish those enablers who would loan them a vehicle during the revocation period.

Posted by: Jardinero1 | Aug 3, 2012 12:28:30 PM

Jardinero1 --

You are correct that the entire public should not have to pay for the transgressions of a very few, nor should all of us have to live with the inconvenience of ubiquitous devices that assume we're drunk. You are incorrect, however, in thinking that license revocation and impoundment will work; the drunk will just borrow a car and drive anyway.

Punishing the person who lends the car has some appeal, if it could be shown that he knew the borrower would probably drive drunk. But the person who should primarily be punished is the drunk driver, not the "enabler."

Also, contrary to your earlier suggestion, the law routinely and properly operates on probabilities. That's the reason we don't allow 14 year-olds to drive at all. It's not that there's no 14 year old who can drive safely; indeed there are very likely boatloads who can drive safely, given their superior vision and reflexes. We don't let them drive because it is PROBABLY the case that their lack of experience and immaturity makes them a greater risk than older drivers. Probability is the whole thing. Could it realistically be otherwise?

As to Hoots in particular, he's proven in spades that he doesn't give a hoot about the risk he poses to others, so too bad for him -- before it's too bad for us.

Posted by: Bill Otis | Aug 3, 2012 1:12:51 PM

jardinero1

The problem is that we can't look at Mr. Hoots in isolation. Sure we can take away his vehicle and then he won't get a job and then he will become unemployed and then he will go on welfare (at least food stamps, after the new health bill he will get health care free) and so society is going to pay for Mr. Hoots one way or the others. "Tis as simple as that.

That's my problem with a lot of Bill's rubbish...it just shifts the burden around and says well as a prosecutor it's out of my sight it's out of my mind. "As to Hoots in particular, he's proven in spades that he doesn't give a hoot about the risk he poses to others, so too bad for him -- before it's too bad for us."

It's too bad for us in any event. So the only question is who is going to pay.

Posted by: Daniel | Aug 3, 2012 1:44:50 PM

We all collectively currently pay a tremendous amount for DUI enforcement/litigation/incarceration. there is also the enormous human costs of death/injury due to impaired driving. I think I read that 1/3 of the over 30K traffic fatalities have alcohol as a factor? I'm saying the cost/benefit of what strikes me as very minor burden on even people who drink less than one beer a year is well-justified by a technological solution. Especially if the analysis is done through the lens of the kafa-esque nightmare for what has to be near zero safety augmentation to which we submit at the hands of the security theater exercise of TSA. and how many trips do people take during DUI-frequent time windows of weekend nights?

Posted by: Will Coy-Geeslin | Aug 3, 2012 4:19:51 PM

Bill,

Conspiracy, aiding and abetting are well established crimes in the USA. A person who knowingly aids a driver with a revoked license is just as guilty as the revokee. By your reasoning perhaps we should stop punishing getaway drivers at robberies or stop punishing those who facilitate battery or murder.

On your second point of probabilities you refer to a licensing regime. But we are not discussing licensing regimes; the case here is one of crime, guilt and punishment. Guilt and punishment are dependent, or should be dependent, on the facts not the probabilities.

Daniel,

It's not a foregone conclusion that a person without a car cannot support themselves. Million of american workers get by without an auto. Lack of an auto is probably less of an impediment to gainful employment than multiple felony convictions or parole.

I say these things as a tea-totaling insurance man who believes that neither minors nor those with one drop of alcohol under the belt should drive.

Posted by: Jardinero1 | Aug 3, 2012 4:36:15 PM

Daniel --

"The problem is that we can't look at Mr. Hoots in isolation."

Unless you believe in group "justice," we can look at Mr. Hoots ONLY in isolation. We do cases one at a time in this country, which you would know if you ever did any.

"It's too bad for us in any event."

No it isn't. It's true that society is probably going to have to pick up the tab for Hoots's lifelong irresponsibility, sure. But it's utterly false that society need bear any significant risk that he's going to run someone down in the street. There are not a lot of highways in prison, which is where he belongs from here on in. If you can't live in civil society without creating the kind of risk this guy does, then we are fully justified, not to mention prudent, in taking him out of civil society.

Posted by: Bill Otis | Aug 3, 2012 4:36:28 PM

"It's true that society is probably going to have to pick up the tab for Hoots's lifelong irresponsibility, sure. But it's utterly false that society need bear any significant risk that he's going to run someone down in the street."

That's your opinion and not a sensible one. The risk of Mr. Hoots doing harm is vastly overstated and one upon which you have no factual support. You're the one that insists that Mr. Hoot be viewed in isolation so what /facts/ lead you to believe that there is any risk that Mr. Hoots in specific is going to harm anyone. He hasn't yet.

I mean I agree with you 100% Bill if by "utterly false" you mean "utterly true."

Posted by: Daniel | Aug 3, 2012 5:17:37 PM

Daniel --

Hoots is up for his THIRTEENTH drunken driving conviction, and your response is to ask, "...so what /facts/ lead you to believe that there is any risk that Mr. Hoots in specific is going to harm anyone. He hasn't yet."

Far out, Daniel. I'm happy to rest my case on your words.

Posted by: Bill Otis | Aug 3, 2012 5:33:53 PM

Jardinero1 --

The law has accepted for a very long time that the probability of future dangerousness is a proper consideration at sentencing. If, for example, a defendant in a child abduction case has three priors for child molesting, and the court-appointed psychiatrist says he's an unreconstructed pedophile, do you seriously believe that the sentencing court cannot take account of the probability of future dangerousness in determining where, within the guideline or statutory range, the defendant's specific sentence this time should fall?

If you agree that the probablility of future dangerousness can be taken into account in that instance, then you have conceded the principle. It might be more difficult to CALCULATE the probability of future dangerousness in a drunk driving case, but that is simply a contingent matter, not a matter of principle.

Posted by: Bill Otis | Aug 3, 2012 5:53:13 PM

Mr. Otis,

In the instances you cite, sentencing is based on the potential for further harm based on the fact of prior harm. Convictions and punishments for drunk driving are not convictions for having caused harm to any person or property. They are convictions for purely legal crimes where no harm has been done. Neither you nor I know whether Hoots has done any harm to anyone or anything.

In free societies crimes are punished after the fact of harm to persons or property being harmed not prior to their possible occurance. Predicting and punishing harm where none has occurred is a threat to freedom. Where does one stop on that slope?

Anyway, I think we are talking past one another. I think we both agree that those who imbibe should not drive. I don't think the current regime of misdemeanor/felony convictions with incarceration and fines are an effective method of keeping drinkers off the road. This is born out by the fact that alcohol related traffic deaths as a percentage of total deaths have barely budged over the years.

Posted by: Jardinero1 | Aug 3, 2012 6:13:09 PM

Jardeniro1 --

I believe your criticism is wide of the mark, because my hypothetical defendant's instant offense was only for abduction. I didn't say he molested or otherwise harmed the child. It was only in the prior cases that he molested children. The question was whether the court properly could take account of the earlier episodes of molestation in fashioning a sentence for the instant "mere" abduction. I would think the great majority would say yes, on the theory that the defendant's past behavior gave rise to a reasonable PROBABILITY that similar behavior was intended here, even though it never occurred.

I gather from what you say that you believe DUI should not be a crime at all, since it does not per se produce harm. If that is your position, I would again suggest that very few will be willing to sign on. Indeed, in my career in the USAO, I never heard of a lawyer, or anyone actually, who thought DUI should not be a crime.

Finally, as the prospect of actually spending some time in jail for DUI became a reality over the last 30 years, the number of alcohol-related traffic fatalities has plummeted, see, http://www.daytondui.com/blog/2007/06/27/dui-chart-shows-dramatic-decline-in-alcohol-related-fatalities/ Jailtime is not the only cause of this salutary development, but it's very implausible to believe it didn't contribute.

Posted by: Bill Otis | Aug 3, 2012 7:33:39 PM

Bill,

Paragraph one, I don't disagree with you if a defendant has caused real harm in the past. And your example still cites a defendant who has actually caused real harm. Not the same as a defendant who hasn't.

Paragraph two, no it shouldn't be a crime, because treating it as a crime is a costly futile effort bringing few positive results. I would remove "driving impaired" entirely from the criminal realm and move it into the administrative realm, allowing for quick suspension of driving privileges when apprehended while driving impaired. You could use civil forfeiture to seize the vehicles of those who choose to continue driving, impaired or not, while their license is suspended.

What you hear about DUI as a criminal offense from your cohorts think is neither here nor there.

Paragraph three. If you look at the numbers, from the census, you will see what effect DUI laws have done in the past twenty years. They have increased the percentage of fatalities with alcohol involved from 20.3 percent to 22.03 percent of all fatalities. I don't think that's very effective public policy if the policy is to prevent harm.

http://www.census.gov/compendia/statab/2012/tables/12s1113.pdf

Posted by: Jardinero1 | Aug 3, 2012 10:20:31 PM

Jardeniro1 --

"What you hear about DUI as a criminal offense from your cohorts think is neither here nor there."

It's not just my "cohorts." It's a huge majority -- so huge that, like the legalization of hard drugs, decriminalizing DUI is not even polled. This does not win the argument, but it does mean that the other side has the burden of persuasion. I am not aware of a single jurisdiction in the country in which DUI is not a crime, although if you can cite one, I'd be interested.

"If you look at the numbers, from the census, you will see what effect DUI laws have done in the past twenty years. They have increased the percentage of fatalities with alcohol involved from 20.3 percent to 22.03 percent of all fatalities. I don't think that's very effective public policy if the policy is to prevent harm."

It is the NUMBER of alcohol-related fatalities that's the measure of harm, not their percentage of all fatalities (not that there was any significant change in the percentage anyway). As the table you linked shows, in just the ten (not twenty) year period from 1999 to 2009, the number of drivers involved in alcohol-related fatal crashes declined by more than 10,000. This was at exactly the time when the trend toward giving at least some jail time to DUI defendants was hitting full stride.

Ten thousand fewer alcohol-related crash victims is a wonderful success story. As I said, increased reliance on incarceration was not the whole story, but it was part of it. It would be foolish to abandon what we know works.


Posted by: Bill Otis | Aug 3, 2012 10:59:28 PM

Bill,

All traffic related deaths are down. Success would be defined as the rate of alcohol related deaths being down more than the rate of all other traffic related fatalities. Alcohol related deaths are down less than other traffic fatalities. In fact, the rate of alcohol related deaths is up.

Posted by: Jardinero1 | Aug 4, 2012 11:00:51 AM

Jardeniro1 --

The rate of alcohol-related traffic deaths is of little moment. The NUMBER of such deaths is the main thing by far that counts in assessing the social good that has been done. The number of alcohol-related traffic fell by more than 10,000 as the punishment for DUI began routinely to include some jail time. This is not exactly a strong argument for abolishing jail time for this offense.

Posted by: Bill Otis | Aug 5, 2012 3:05:15 PM

Bill,

All traffic deaths, including alcohol related have been in decline since the 1980's. The 10,000 you cite were not the result of the DUI regime but part of the general trend of fewer fatalities. Though less a part of the trend than other types of fatalities.

If correlation is causation as you wish to believe; then the alcohol related trend is less correlated with the general trend and the DUI penalty regime is less causative.

Posted by: Jardinero1 | Aug 5, 2012 7:16:37 PM

Jardeniro1 --

"All traffic deaths, including alcohol related have been in decline since the 1980's."

That didn't happen by magic. Could you state all the significant factors you think caused it?

"The 10,000 you cite were not the result of the DUI regime but part of the general trend of fewer fatalities. Though less a part of the trend than other types of fatalities."

To say that the DUI regime was "less a part of the trend" is to acknowledge that it was, indeed, part of the trend. Do you disagree?

"If correlation is causation as you wish to believe..."

I don't recall saying that correlation is causation, or that I wish to believe such a thing. Would you please quote where I did?

In fact, I don't believe it. I do believe, however -- like every other sane adult -- that a strong correlation gives rise to a legitimate suspicion of causation.

This debate reminds me of the one we sometimes see on this board in which it is preposterously claimed that the vastly increased incarceration over the last generation has no relationship to the vastly decreased crime rate. It's utter nonsense.

The problem here is not that I believe correlation=causation. It's that the let-them-out crowd wants us the believe in magic, and that the decreased crime rate had NOTHING TO DO with the fact that we put more of the people committing crime in jail and have kept them there longer.

Well, I don't believe in magic. Not for the reduction in crime generally, and not for the reduction in drunk driving deaths. The refusal to admit a causal relationship is not a refined correction of the correlation=causation theory I don't have. Indeed, it's not even really a belief in magic. It's just a ploy -- a ploy needed by drunk drivers and their defense lawyers in order to convince the public that jail is a Really Bad Thing and that we can, without any downsides, go back to the carefree, failed policies of the past. In fact, if we do that, we'll get now what we got in the past -- failure. And in this instance, failure means more dead people.

No thanks.

Posted by: Bill Otis | Aug 6, 2012 9:22:41 AM

Bill,

I agree with you that the incarceration regime has reduced crime rates. There are other better, more effective, cheaper ways to deal with drunk drivers.

Posted by: Jardinero1 | Aug 6, 2012 10:09:40 AM

you did forget a few major reasons death has decreased in accidents bill!

We have gotten a hell of a lot better at keeping people alive at the scene of said accidents no matter how badly they are ripped up!

thanks to our increason in medical knowledge and the increase in reponse times to said accidents by medical personal. Unlike france!

Plus of course the increase of MANDATORY safety designs built into new vehicles!


People are still just a STUPID as they were back then. We are just now better at helping them LIVE THOUGH it!

Posted by: rodsmith | Aug 6, 2012 10:39:42 PM

Your arguments are interesting but the exchange in the comments was even more so. Thanks!

Kevin Pitts Daytona Beach DUI Attorney

Posted by: Kevin Pitts | Sep 16, 2012 11:26:08 AM

Keep it up; keep posting more n more n more. http://duihelpnow.com/dui-attorneys/

Posted by: dui attorney | Nov 21, 2012 12:27:00 AM

I think interlock devices on repeat offenders is a reasonable way to deal with things like this. Most people figure out after the first time going through the system and stop drinking and driving but some people for whatever reason just keep re-offending.

Posted by: St. Louis Orthopedic Surgeon | Jul 24, 2013 12:50:44 AM

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