A man is challenging a Kenosha County judge's order that he maintain absolute sobriety during his supervised release even though neither drugs nor alcohol had anything to do with his crime.
Efrain Tapia, who also did not have a history of substance abuse, first challenged the order in a postconviction motion, which was denied Kenosha County Circuit Judge Gerard Dougvillo, it, according to a brief filed Friday by Tapia's lawyer, Assistant State Public Defender Will Straube.
"The trial court stated that extended supervision provided an opportunity to make lasting changes in a person’s life and that, in its opinion, 'absolute sobriety is imperative to long lasting change taking place' ” Straube wrote.
In a plea agreement, Tapia was convicted of fleeing or eluding an officer, causing bodily harm. Dougvillo sentenced him to two years in prison and three years of extended supervision. In addition to absolute sobriety, Dougvillo directed that Tapia submit to random tests of his blood, breath, or urine during his supervised release.
Because Tapia was sober at the time of his offense, “ 'the decisions that would be made when somebody is using any of those substances would be of grave concern to this court, '” Dougvillo said during the postconviction hearing.
The judge also said that Tania's pre-sentence report indicated “ 'undiagnosed mental health issues including stress, depression, anxiety, and PTSD.' ”
Tapia, in a motion to reconsider, also denied by Dougvillo, cited a Department of Corrections assessment stating that Tapia was not reporting or showing any mental health issues.
Tapia does not have a history substance abuse or any prior criminal convictions, Straube wrote. The conditions imposed by by Dougvillo are "not tied to the facts of this case or his rehabilitative needs and does not protect state or community interests."
Judges have have broad discretion in imposing supervised release conditions as long as they are "reasonable and appropriate," Straube wrote. However, he said, state Supreme Court precedent requires that "conditions of supervision, like other components of a defendant’s sentence, must be tied to the facts of the case before the court and not guided by a rigid, one-size-fits-all policy."
Tapia said he used alcohol and marijuana occasionally, Straube said.
"Drug or alcohol abuse may lead to aggressive behavior or excessive risk taking, but common sense and experience tell us that social drinking, such as having a glass of wine with dinner or a beer at a tailgate, is unlikely to lead to criminal activity," Straube said. "Indeed, the Bureau of Justice Statistics has noted that 'most alcohol consumption does not result in crime: the vast majority of those who consume alcohol do not engage in criminal behavior. ' ”
Dougvillo's statement that absolute sobriety is "imperative" for long-lasting change to occur is a "mechanistic, one-size-fits-all approach to sentencing" that is not appropriate, Straube said.
The judge's comments about Tapia's mental health needs did not reflect the DOC assessment, Strabue said, and Tapia had never been diagnosed with any mental health problems.
Because there was no evidence that alcohol or other drugs were tied to any mental health issues Tapia may have, "the court's reasoning is simply not tied to the facts of the case," he wrote.
Dougvillo's comments about decisions Tapia might make while using alcohol or other drugs also fail to meet the requirements for imposing the absolute sobriety and drug-testing conditions, Straube said.
"The fact that Mr. Tapia’s single offense happened while he was not using drugs or alcohol does not support the conclusion that absolute sobriety would aid his rehabilitation or protect the community," he said.
The full brief in State v. Efrain Tapia, 2023AP1391, is here.
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