*1 judicial as bailee under the law the officer Id. DUPREE, ordinary negligence. Appellant,
is liable for A. Sabrina As custodian of automobiles under v. however, law, impoundment vehicle STATES, Appellee. UNITED position in the of a bailee for District is not preserving property for cus- purpose Nos. 89-446. impoundment law tody and sale. temporary storage by merely authorizes Appeals. Court of District of Columbia purpose enforcing the District for the Sept. 1990. Submitted view, Thus, my in parking laws. Decided Dec. applicable care to sheriffs standard of property and sell others authorized to seize apply judgments
in does satisfaction required to im- government officers public pound necessary for the cars when safety. of Columbia
I note that in the District applies by gross negligence standard police and property seized statute to De- Metropolitan Police impounded Property partment Clerk. sup- I argued, It could failure to enact a pose, that the Council’s police im- similar statute the case that it intended poundment of cars shows context. apply lesser standard not without Although argument force, me is the significant much more difficulty, impossibility, if not
conceptual two exercises distinguishing between the caretaking function. police think, con- finally, that we must be consequences of a practical cerned parks illegally, and who rule that safety (certainly at endangers so hour), reasonably require the Dis- can rush ordinary lapses from against insure trict to It process. impoundment in the care “un- care means care that reasonable true (which presumably der the circumstances” like), rush hour and would include rights of the owner who as between duty parking, violates the law prevent to clear the streets police accidents, of ordi- that a standard I believe too low a balance nary negligence strikes en- to effective as a disincentive and acts parking laws. forcement
BELSON, Judge: Associate Dupree appeals Sabrina imposi- from the tion of a mandatory-minimum sentence imprisonment of not less than years four and no years pursuant more than twelve 33-541(c)(l)(A)(1988) D.C.Code after she § plea guilty entered a to distribution of dilaudid in violation the D.C. Uniform Act, Controlled Substances 33-541(a)(l). sentencing hearing, At the § the trial judge Dupree found that an “addict” and concluded that for that Dupree reason failed to for the addict exception require- mandatory-minimum ment of a sentence.1 Dupree contends judge erred in finding that she was not an addict. We agree, and therefore reverse and remand for proceedings. further
I.
At sentencing hearing, Dupree testi- fied in her own behalf about her addiction cocaine, marijuana, and heroin. She tes- marijuana tified that she daily had used past years fifteen and that she had used past cocaine and heroin for the ten years. Dupree that her stated habit cost her approximately per day, that $200 stop could not using and that she help problem. needed with the She also testified that she had worked at the Veter- Hospital ans secretary as a ward arrest, years preceding receiving biweekly paycheck.2 past $450 For the Bonner, appointed by Leonard J. testified, years, two Dupree she had been court, appellant. filed a brief for selling drugs solely habit. As further evidence of her addic- Jay Stephens, Atty., B. U.S. John R. up her sleeves rolled so the Tourish, Jr., Fisher Thomas J. Asst. judge could see needle marks in Attys., appellee. filed U.S. a brief arms the intravenous caused SCHWELB, BELSON, Before heroin. testified that also she had WAGNER, Judges. Associate outpatient pro- been treatment exception permits According unchallenged The addict the trial 2. statement of mandatory-minimum court, waive sentence when presen- counsel to the person previous drug who has report, tence the trial took no- manufacturing or distribution convictions if tice, disclosed that lost this person was an at the time of the problems. of absences and other primary purpose and the offense of the offense towas enable that to obtain narcotic personal for his or her own use. D.C. (c)(2) (1988). Code incarceration,
gram “hang- during had left followed when she started again, got wrong in the streets probation treatment. again using drugs crowd and ... started
again.”
*3
II.
Dupree’s counsel called one other wit-
exception,
To
for the addict
testimony
support Dupree’s
ness to
that
judge
notify
the defendant must
the trial
addict,
liaison officer
she was an
a court
that
be sentenced under the
she seeks to
Agency
for the D.C. Pretrial Service
Adult
prove
and she must
her
addict
testified,
Drug
The
with ref-
Unit.
witness
eligibility
v.
to be so sentenced. Grant
drug
kept by
Dupree’s
erence to
record
(D.C.
States, 509 A.2d
United
agency,
positive for
Dupree
that
had tested
1986).
question
There
that defense
is no
drugs
times over a
six out of
counsel in this case satisfied the first of
approximately year
of
and a half. On all
by notifying
requirements
these
occasions, Dupree
positive
six
had tested
plea proceeding
Dupree
that
judge at the
occasions,
for cocaine.
of those
On two
under the ad
would seek to be sentenced
positive
phencycli-
she also had
for
exception.
inquiry
dict
The focus of our
occasion,
(PCP) and,
dine
on another
judge’s
will be on the trial
determination
positive
opiates.
also had tested
The
Dupree
eligible
excep
not
that
government offered no evidence to rebut
tion.
Dupree
the evidence that
was an addict.
prove eligibility,
To
the defendant
point
proceedings,
At that
proffer
must
evidence “that
has no
[s]he
judge
findings upon
made her
the evidence
convictions,
disqualifying
was an ‘ad
by
[s]he
presented
the defense to
offense,
dict’
at the time of the
...
Dupree was an addict. The
contention that
primary purpose for
addiction was the
judge pointed
out that
use of
[her]
the commission of
offense.” Id.
drugs
any way impaired
“in
had not
[her]
noting
contain “information about
ability”
society,
to function
Dupree
required
fact that
held a
“which
the defendant’s addiction and
the nature of
offense,”
hospital
in a
relationship
meticulous control of records
and not
its
to [her]
safety
patients
of the
where the health and
conclusory
mere
statements.
just consist of
performing.”
Du-
are at risk
she is not
However,
the defendant’s burden
Id.
success,
pree’s
attempted,
counsel
without
proof
“insurmountable or tanta
cannot be
persuade
judge that the use of
the trial
repeal
exception.”
mount to
impaired Dupree’s ability by
drugs had
that she
Id. at 1156. In order to establish
that,
presentenee
pointing to the fact
as the
bring
must
her
is an
the defendant
showed, Dupree
investigation report
had
applicable
of ad
self within the
definition
very job
due to absenteeism
lost
set
forth
dict which is
judge
The trial
also noted
problems.
other
(1988)
33-501(24)
as follows:
presented of illness as
that no evidence was
[A]ny
habitually uses
individual who
withdrawal, or other evidence
the result of
drug so as to endan-
narcotic or abusive
patterns, and that there was
of withdrawal
morals, health, safety, or
ger
public
showing
dependency pattern
or
welfare,
so far
is or has been
or who
per-
of an addictive
anything else indicative
narcotic
addicted to the use of such
sonality. Assuming, apparently,
that all
drug as to have lost
or abusive
true,
proffered by Dupree was
the evidence
reference to his ad-
self-control
judge then ruled that
the trial
diction.
purposes
of the addict
not an addict
exception,
eligible
thus not
for sentenc-
III.
pursuant
exception.
to the
Somewhat
case,
In
the trial
seems
inconsistently,
the trial
determined
portion
on the latter
nevertheless,
to have focused
needed
Dupree,
definition,
illustrated
foregoing
as is
rec-
as evidenced
not demonstrated
finding
had
Dupree receive
ommendation
symptoms,
“impaired
withdrawal
or an
must relate
habitual
ability”
employment.
To
maintain
limit
endangerment
the definition of addict to those who dem-
loss of self-control with reference to her
physical
onstrate a
addiction would be to
33-501(24);
addiction. See D.C.Code §
cf.
misconstrue the
definition as well Wheeler, supra,
at
725. With
prior
applying
excep-
cases
mind, we
this in
review
tion. In
we observed that the Con-
finding
failed meet the defi-
trolled
Act does
prescribe
Substances
nition
an addict.
standards for
whether the defen-
testimony
Dupree’s unrebutted
that she
dant is an
or whether
commission
*4
year history
marijuana,
had a ten
of use of
the
manufacturing
offense
or
of
distribut-
cocaine,
heroin,
expensive
an
habit that
primary purpose
narcotics was for the
income,
disposable
far exceeded her
supporting
drug
of
addic-
the defendant’s
drug
that
had failed in
she
a
guid-
tion.
job, ability because the to continue to work has “lost the of self-control with necessarily long prison mean that a reference his addiction.” D.C.Code Surely legisla- term would assured. (1988) added). 33-501(24) (emphasis encourage tive intent not to addicts to compel These words do not us to restrict give up ability day’s their to earn honest to those who have wage, perhaps spend and even more of given up fight, jobs, lost their and selling their juggling time on street every “dirty” single time. Courts poisonous their purpose wares for the should not divest themselves re- obtaining another fix. maining by giving legislation discretion token, By the same Ms. should so destructive construction. ineligible be deemed addict ex- ception because she had “clean” two (out eight) being
tests while monitored Agency. the Pretrial Services Presum- ably, she under at the time court order subject not to use unlawful contempt penalties other unfa- of court consequences disobeyed if vorable directive. -1330 See §§ ability that her to muster To hold stay illness and strength to combat her drug-free of time even a brief ineligible excep- made her negative again. disqualify them from more lenient 2. Even tests had occurred when To order, they stay clean tried Ms. was not under court permit provide would nence, a counter-incentive absti- statute not be so construed as to negating good potentially advice disqualify all the them to progress, her. Well-motivated addicts floor, get try want the habit.” regress, from those who them to "kick off the