Program keeps DUI offenders out of prison

Dirk Folstad had two options as he faced sentencing for his third conviction for drunk driving: Nevada State Prison or the new DUI diversion program.

With the assistance of his attorney, Tod Young, and a recommendation by the district attorney's office, the 32-year-old carpenter became the first referral in Douglas County for the 3-5-year program designed to rehabilitate drunk drivers and keep them out of prison.

That was nearly two years ago, and Folstad has performed well in the program.

"If I'd gone to prison, I would have a felony on my record, and I wouldn't have learned anything about alcohol or myself," Folstad said.

By agreeing to the diversion program, he committed to 3-5 years of strict supervision, counseling, unannounced search and seizure, and biweekly appearances before a district court judge to monitor his progress.

Senior judges Peter Breen and Archie Blake alternate as the judges for diversion programs for DUI and drug offenders in Douglas County.

Every two weeks Blake or Breen convenes Wester Regional Drug and DUI Court on Monday mornings, using District Judge Dave Gamble's courtroom.

Each participant must appear, regardless of how far along they are in the program.

"You get face time with the judge every two weeks whether you do well or don't do well," Blake said in a recent interview. "There are some you look at and know it's going to be a long, hard road. We take the difficult ones, we don't take the easy ones."

With a courtroom full of offenders, Blake is brief, and praise and punishment are meted out swiftly.

"Incentives and sanctions are key. Research has found that interaction - even if it's very brief - is absolutely essential. It's the first time for many of these people that someone in authority has taken an interest in them," he said.

During a September session, a woman graduated from drug court to hearty applause, a picture with the judge and handshakes from everyone.

"How good is this?" Blake said. "You made it look easy."

"She is where you all need to be and will be soon," he told the courtroom.

Another offender has a dirty drug test.

"Having a rough go?" Blake asked.

"Yes, sir," he replied.

"What don't you understand about honesty in the program?" Blake said.

"I don't have an answer, sir," the man said.

"Well, now you have two weeks in jail to think about it," Blake said.

He tells an unemployed woman if she doesn't have a job in two weeks, she'll have to perform community service every day.

He orders another defendant to write a five-page essay.

"We can put up with a lot, but we can't put up with dishonest behavior," he told the offender.

DUI court is much stricter than drug court. For the first violation, offenders spend 30 days in Douglas County Jail. With a second offense, the defendant is terminated from the program and sent to prison.

"It's a very, very hard program," Blake said. "There is zero tolerance for violations."

Young, under contract with Douglas County to represent indigent defendants, said there are a couple of reasons for the stringency.

"It's a more dangerous population," he said of DUI offenders. "A lot of times people doing drugs are doing damage to themselves. They may not be directly putting other people in the path of harm. Every time you drive under the influence, you cause the rest of the community to face the prospect of being hurt. It's just a more dangerous offense."

Alcohol addiction is as difficult to overcome as heroin, Young said.

"You don't see any ads during the Super Bowl for heroin. You can walk into any convenience store and the cold beer is right by the checkout stand. Heroin is not like that. Neither is meth or any other illegal substance. Alcohol is a product that our society endorses the use of, but potentially is a very dangerous product."

Young, who referred Folstad to the DUI court, said he is pleased with the results.

"I think it's taken a number of people and allowed them to continue to be productive. Mr. Folstad has done extremely well. He maintains a healthy lifestyle, he is productive, out working, and not draining the economy sitting in jail," Young said.

"If he maintains his sobriety, he also maintains his health and that's another benefit for the community."

As the county's contract attorneys, Young, Derrick Lopez and Kris Brown rotate assignment to DUI/drug court.

"It's kind of a hybrid role. We're advocating for the individual and the concept of sobriety. It can create a difficult paradox. If someone is having a hard time, if they're violating, we talk with them to see if they really want to stay in the program. We need to be frank and tell them 'this is not going to get any easier,'" Young said.

Before the Nevada Legislature created the diversion program, a third DUI conviction within seven years mandated at least 12 months in Nevada State Prison for the offender.

Young said he has had several clients do well in the diversion program.

"Others have not done so well. Those individuals have ended up going to prison. It's definitely not a free pass and it's not intended to be one. It's a very dangerous population. If we can address it in some manner that doesn't create a further drain on the community, we're all better off," he said.

After serving 20 years on the bench, Blake said his most satisfying work has been in diversion programs.

"For me, this is the chance to really do something that is measurably worthwhile. As we say in the business, it's a chance to build a few credits with St. Peter. It's by far the best thing I've ever done in the legal field. For Judge Breen and I, it's a real opportunity for us to contribute in a specialty area in which we have a lot of experience," he said.

Since the DUI diversion began in 2007, Douglas County has admitted 30 participants. About half a dozen of those have been terminated for violations.

Offenders are subject to unannounced visits from Chief Probation Officer Doug Swalm who runs the county's department of alternative sentencing.

If the participant is successful, he or she avoids a felony conviction on their record, and the offense is reduced to a second DUI, a gross misdemeanor.

If they subsequently are convicted of another DUI offense, it's counted as their fourth with a mandatory 2-15 years in prison, as if the diversion never took place.

Swalm said he welcomed the opportunity to supervise the DUI diversion participants. With 25 years in law enforcement, the diversion program offered the 53-year-old Swalm a chance to spend more time on the streets.

"When the district court judges handed me the program and asked me to supervise it, I said 'yes.' It's actual probation work again," he said.

"They (offenders) get a lot of supervision. When they first start out, they get an awful lot of me."

Electronic monitoring makes it possible for Swalm to supervise offenders' whereabouts from his home, office or patrol car.

He makes house calls at all hours.

"I've gotten to know some of these people very well. We're on a first-name basis. I am welcome in their homes. Doing this job I get to see them all the time. I know their kids' names, their dogs' names. People ask me, would it be easy to overlook a violation? Well, no," he said.

On a recent supervisory tour , Swalm made four stops.

The probationers - three men and a woman - had negative tests. They breathed into a device hooked up to their home phones called a Sobrietor. It looks like a small megaphone and is programmed to provide instant voice recognition and a breath test.

If the test is positive for alcohol, somebody tries to fool the machine, or the probationer isn't at home, Swalm is notified immediately.

Swalm said he loves the gadgets.

"Every time there's a new mouse trap on the market, I really, really want to look at it," he said.

Like many supporters of the diversion program, Swalm said it saves taxpayers' money and frees up prison space.

Participants spend the first six months on house arrest and pay all expenses associated with electronic monitoring.

"House arrest costs $15 a day and totals $2,725 for a minimum of 180 days," Swalm said.

While on house arrest, offenders may go to work, school, medical appointments, church and counseling. People who live alone are allowed to go food shopping.

"I tell them it's not called 'neighborhood arrest' or 'walk-your-dog arrest,'" Swalm said.

By the end of the 3-5 years, a participant can expect to have spent $14,000. That includes house arrest fees, counseling, interlock motor vehicle device, court fees, and substance abuse evaluation. If they elect in-patient treatment, they're responsible to pay for it.

But, Swalm pointed out, they have time to pay it off. Part of the supervision is to make sure they are working and on schedule with their fees.

"So far, we've spared taxpayers paying for 25 people in diversion and freed up that many prison beds," Swalm said.

By staying out of prison, Folstad was able to work and support his family.

"This has made my family life a lot better," he said. "Before, when I wasn't working, I'd be at a bar drinking."

He said the program was difficult in the beginning, but he stuck with it.

"I had too much to lose," Folstad said. "I'm learning not to deal with my problems with alcohol."