Loss of home detention upheld

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James Domka, who was serving part of his drunken driving sentence on home detention, blew his chance to stay at home when he tested positive for alcohol during a random breathalyzer test.

Although Domka claimed he had a liberty interest in serving his sentence at home instead of jail, a federal appellate court found that didn’t matter because the agreement he had signed stating he would not consume alcohol during his detention waived any such interest.

Judge Ilana Diamond Rovner, wrote for the Seventh Circuit, “The language in the agreement that Domka signed which states that he could — and would — be removed from the [home detention program] and the Huber program if the Sobrietor registered a positive alcohol reading is completely unambiguous.”

The court also held a county sheriff can take away Huber privileges, without implicating due process at all.

This directly contravenes long-standing precedent in Wisconsin that a sheriff’s denial of work-release privileges does violate due process. Olynick v. Taylor County, 643 F.Supp. 1100 (W.D.Wis. 1986).

In Olynick, Judge John Shabaz wrote, “While the sentencing court can withdraw the privilege ‘with or without notice’, no one else has such authority. A sheriff may suspend such privileges for five days only for violation of jail regulations (cites omitted).” Id., at 1103.

Nevertheless, the Seventh Circuit concluded that a violation of this statute is solely a matter of state law.

Domka pleaded guilty in Portage County Circuit Court to third-offense driving under the influence. Pursuant to the plea agreement, he was sentenced to 105 days in jail, with Huber work-release privileges.

The first 30 days were to be served in jail, and the remainder on electronic monitoring.

Under the agreement that prisoners must sign to participate in Portage County’s home detention program, the prisoner acknowledges that use of alcoholic beverages is grounds for return to jail.

The county enforces this requirement by calling participants at random times and requiring them to blow into the Sobrietor machine, which tests for the presence of alcohol.

Domka registered positive for alcohol, and as a result, had to serve the balance of his sentence in jail, without work release privileges.

He then sued the county, claiming that he had a liberty interest in remaining on home detention, which could not be taken away without a hearing.

Judge Shabaz held that he waived any liberty interest, and the Seventh Circuit agreed.

Domka did not contend that any Wisconsin statute conferred a liberty interest in remaining on home detention, but argued that the Due Process Clause itself provides a liberty interest.

The court called the argument, “compelling, albeit far from irrefutable,” but ultimately declined to address it.

It is undisputed that a parolee has a liberty interest in retaining that status.

In addition, a Seventh Circuit cases holds that removing a probationer from home detention is a deprivation of liberty requiring due process. Paige v. Hudson, 341 F.3d 642, 643 (7th Cir. 2003).

However, the court declined to decide whether Paige extended to those serving sentences on home detention, because any liberty interest that Domka had was waived in the three-page, 24-paragraph home detention agreement that he signed.

The agreement provided that Domka would be removed from both the home detention program and the Huber program if the Sobrietor registered a positive alcohol reading, a provision the court found unambiguous.

Domka argued that the waiver is invalid as part of a contract of adhesion, but the court declined to address this argument, because he failed to make it in the district court.

Finally, the court turned to the issue of whether the revocation of Huber privileges violated due process.

The court acknowledged that sec. 303.08(10) allows a sheriff to suspend Huber privileges for up to only five days for rule violations.

However, the court concluded that, even if the sheriff’s revocation of Huber for the remainder of the sentence — 41 days — violated this statute, it was merely a state rule that created no federal constitutional right.

The court’s analysis of this issue was only two sentences, and failed to make any reference to Olynick.