- Associated Press - Monday, September 22, 2014

MITCHELL, S.D. (AP) - Because of a change in law through the Criminal Justice Initiative, some offenders who abuse controlled substances are avoiding hard prison time.

In April, Agnes Drapeaux of Mitchell took methamphetamine, was caught and then in June pleaded guilty to unauthorized ingestion of a controlled substance, which is a felony under a new law.

By July, she was sentenced to five years of probation with three months of jail. Two years ago, she could have been sentenced to a maximum of 10 years in prison. Instead, she received a suspended four-year prison sentence and probation. Prison is a state facility and is a harsher punishment than jail, which is served in a county facility.

She avoided the more serious punishment because the Criminal Justice Initiative law change in 2013 was enacted to avoid filling the state’s prison system with nonviolent felony offenders through Senate Bill 70, The Daily Republic (https://bit.ly/1Dl17xX ) reported.

The catalyst for the change in laws was a 2004 South Dakota Supreme Court decision, a Tripp County drug case that was appealed to the Supreme Court that changed how offenders could be prosecuted for possession of illegal drugs.

The case made it possible for prosecutors to charge criminals with possession of a controlled substance even if it is only found on a person in an altered state, such as in their blood or urine. But it also started sending a lot more people to prison, and forced another change.

“This was the landmark decision that changed the prison landscape for South Dakota probably forever,” said Jim Seward, general counsel for Gov. Dennis Daugaard.

Joshua Schroeder was a passenger in a vehicle in Tripp County in 2002. He was arrested for possessing methamphetamine by proof of the drug in a urine sample taken by law enforcement after the vehicle was pulled over.

He appealed to the Supreme Court whether the urinalysis was sufficient evidence to support a possession conviction.

Schroeder contended without other proof of him possessing meth, like a baggie filled with the drug, a positive urinalysis for the drug was not sufficient to prove possession. The Supreme Court disagreed.

The high court did not find Schroeder’s argument persuasive and instead found the state Legislature’s intent with a 2001 law was to allow evidence — like a positive urine sample — to be enough to charge someone with possession of a controlled substance.

Prior to this decision, ingestion was only a misdemeanor offense, not punishable by prison time. Once the law was changed after the 2004 Supreme Court case, possession of any illegal drug, whether it’s in an altered state in the body or in a baggie, became a class 4 felony, punishable up to 10 years in prison and a $20,000 fine.

“Ten years after the fact, we’re trying to clean up the law after it was originally determined to be a felony,” Seward said. “The decision resulted in a huge increase of nonviolent offenders in our prison system.”

From 2004’s ruling until Senate Bill 70 was enacted last year, offenders of unauthorized ingestion of a controlled substance began filling up the state’s prison.

With that in mind, the Criminal Justice Initiative Work Group that helped create changes for Senate Bill 70 drew up a separate felony statute for ingesting a controlled substance.

Since the implementation of Senate Bill 70, offenders have been charged with and convicted of possessing a controlled substance in an altered state in the body, which is called unauthorized ingestion of a controlled drug or substance.

This law, in tandem with another requiring presumptive or required probation, has changed how low-risk and nonviolent offenders are managed by the court system.

Drapeaux is just one example of people in recent months who have been sentenced to probation - and not prison time - under the new laws.

The ingestion conviction was Drapeaux’s first felony, so she was considered low-risk and sentenced to five years of probation.

One section in Senate Bill 70 focused on reducing charges for possession of controlled drugs and creating a new statute specific to unauthorized ingestion of controlled drugs.

Prosecutors and defense attorneys see the new laws as a positive move toward rehabilitation and lowering prison populations.

“Peeling the ingestion law off as a separate, standalone statute made sense,” Jackley said. “Then we’ll continue to evaluate it during its implementation and make adjustments if necessary.”

He added that from a public safety standpoint and fairness, someone manufacturing or distributing drugs to children should be treated differently than those who possess drugs in an altered state. Manufacturing and distribution charges remain class 4 felonies.

Doug Dailey, a defense attorney in Mitchell, said the change in law and sentencing rules are positive. His clients convicted of possession have the opportunity to straighten their lives out without immediate prison time.

“Most people that get in trouble for these crimes are good people who have made mistakes and get involved in illegal drug activity,” Dailey said.

The tiered sentencing system gives attorneys and judges more options to help nonviolent drug offenders find help to gain control of their addictions, he said. Remedies available include outpatient and inpatient treatment, the 24/7 Sobriety program, and regular or random drug testing. Through Senate Bill 70, many districts have also implemented drug courts, which are intensive supervised experiences overseen by a team of professionals.

How his clients possess a drug or how they ingested a drug are added elements he has to defend, but that doesn’t make the case more difficult, Dailey said.

Tim Whalen, a defense attorney in Lake Andes, also sees the new laws and opportunities through Senate Bill 70 as a positive move for his clients.

“They’re not going to the penitentiary, they have an opportunity for treatment, a chance to get their life in order,” Whalen said. “They have an opportunity to find a job, stay with their family. It’s a matter of whether they take advantage of the advantages.”

Whalen said it’s difficult to defend someone with an ingestion charge. He said he can challenge whether a bodily substance was tested properly or if authorities properly collect a sample of a bodily substance for testing.

“I have not been successful at all,” Whalen said about defending these types of cases. “I only had one remote chance of winning some time ago and that was on a (bodily substance) sample with storage issues.”

Jackley, as the state’s head prosecutor, said the tiered system is the thrust of what South Dakota prosecutors wanted. He said the Legislature agreed with prosecutors’ arguments that ingesting illegal drugs affects a person’s judgment and causes a public safety concern.

He referenced the case in Sioux Falls of Rhiannon White, whose house burned down and killed her three children. White was arrested for and convicted in 2013 of possessing methamphetamine in an altered state in her body the day of the fire.

“If we didn’t have this law, she wouldn’t have been prosecuted,” Jackley said. “There was no other evidence she possessed methamphetamine.”

The bill downgraded the punishment for possession and ingestion convictions to a tiered system, said South Dakota Attorney General Marty Jackley. Those charged with either possession or ingestion of a controlled substance are now charged with a class 5 felony or class 6, depending on the drug.

A class 5 carries a maximum penalty of five years in prison and a $10,000 fine and a class 6 carries a maximum penalty of two years in prison and a $4,000 fine.

Drapeaux, for example, ingested methamphetamine, which is a schedule II substance under law - meaning meth has a high potential for abuse or abuse that may lead to severe psychic or physical dependence. She pleaded guilty to a class 5 felony. Offenders are still given prison terms, but judges are required to give a suspended term and sentence an offender to probation, unless there are aggravating circumstances like assault, Jackley said.

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Information from: The Daily Republic, https://www.mitchellrepublic.com


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