664 P.2d 961 | Nev. | 1983
OPINION
Appellant was convicted in 1976 of two counts of unauthorized signing of a credit card sales slip, a felony. Appellant, who had a serious alcohol problem, was intoxicated when he committed the offenses. Because of his drinking problem the district court suspended appellant’s prison sentence and placed him on probation, with the special conditions that he totally abstain from the use of alcohol and participate in an alcohol treatment program. Appellant was unable to refrain from drinking and his probation was revoked for violation of the abstention condition.
In support of his argument that his imprisonment for violation of the abstention condition amounts to imprisonment for alcoholic status or for a medical condition, appellant relies primarily on Sweeney v. United States, 353 F.2d 10 (7th Cir. 1965); and State v. Oyler, 436 P.2d 709 (Idaho 1968). Both the Sweeney and Oyler courts held it unreasonable, and implicitly in violation of the Eighth Amendment, to impose a probation condition of total abstention upon an alcoholic who is incapable of refraining from drinking.
Several jurisdictions have considered the issue now before us and have declined to follow Oyler and Sweeney, holding that abstention conditions of probation are valid as reasonably related to the goal of rehabilitation of the alcoholic offender without the ultimate sanction of imprisonment. See Upchurch v. State, 184 N.W.2d 607 (Minn. 1971); State v. Sullivan, 642 P.2d 1008 (Mont. 1982); Sobota v. Williard, 427 P.2d 758 (Or. 1967). The abstention condition is a necessary incentive to
Furthermore, imprisonment of an alcoholic not because of his or her status, but because of a criminal offense committed while under the influence of alcohol, does not constitute cruel and unusual punishment. Powell v. Texas, supra; see Robinson v. California, 370 U.S. 660 (1962). By the same token, imprisonment for the original offense following revocation of parole or probation based on violation of a condition of abstention is not a punishment for status. See Jennings v. State, 89 Nev. 297, 511 P.2d 1048 (1973) (narcotic addiction); see also State v. Sullivan, supra.
We are persuaded that the decisions cited above which reject Sweeney and Oyler reflect the better view, and we hold that a condition requiring total abstention from alcohol while on parole is not per se unreasonable. Revocation for a violation of such a condition is permissible, as for any other failure to conform to the conditions of parole release. Even if appellant is utterly incapable of abstention, a fact by no means established by this record, his current imprisonment is based on his original conviction, not his status as an alcoholic. The imprisonment is necessitated by the interests of society, and is not unconstitutional.
The order dismissing the petition for writ of habeas corpus is affirmed.
The decisional law involving total abstention as a condition of probation applies with equal facility to abstention as a condition of parole, because probation and parole are almost functionally identical types of conditional release. Cf. Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation revocation procedures required by due process extended to parole revocation proceedings).
Petitioner has misplaced his reliance on the Nevada Legislature’s declaration that alcoholism should be treated as a health problem by the criminal justice system. Although the legislature has provided that certain alcoholics convicted of crimes traceable to their condition may have their sentencing deferred pending treatment, it has also provided that should treatment fail the alcoholic may be sentenced as would any other convicted offender. See NRS 458.250, 458.260, 458.310, 458.320, 458.330.