Case Review: People v. Brian Hakes

New York Court of Appeals Upholds SCRAM Probation Requirement

The New York Court of Appeals answered definitely in People v. Brian Hakes that a lower court can require a defendant to wear and pay for a Secure Continuous Remote Alcohol Monitoring (SCRAM) as a condition of probation.  The court relied on Penal Law § 65.10 (4) which specifically authorizes the use of electronic monitoring.  According to the statute a court may use its discretion to determine that “requiring the defendant to with such condition will advance public safety, probationer control or probationer surveillance.”

In the opinion the court states the legislature not only specifically authorized the use of electronic monitoring devices but also that the court can require defendants to pay for these devices unless they demonstrate a financial hardship.  In the case, Mr. Hakes entered a plea of guilty to a felony charge of driving while intoxicated.  He was ordered to complete five years of probation and wear a SCRAM Continuous Alcohol Monitoring device.  Despite being ordered to pay for the device, Mr. Hakes ultimately stopped paying the monitoring company resulting in the removal of the alcohol monitoring bracelet.  Mr. Hakes probation was subsequently revoked.

The Court of Appeals determined that the requirement to wear the SCRAM device was “the appropriate criminal sanction” and that the lower court acted within the law when setting the requirement.  Ultimately, they determined that when a “probationer has willfully refused to pay… when [the defendant] can pay, the [court] is justified in revoking probation and using imprisonment as an appropriate penalty for the offense.”