People v. Hakes

Hakes pled guilty to driving while intoxicated and was sentenced to 6 months incarceration and 5 years of probation. Upon his release from jail, he was ordered to wear and pay $11 a day for a Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet. For his period of probation, it would mean approximately $18,000. It is not a Medicaid-covered device.  The defendant worked odd jobs and with the help of his mother, he was able to pay for five out of his first six months of probation. His mother lost her job, and he injured his hand which prevented him from working.  He was told by the probation officers that they could reduce the payment to $4 a day. However, Hakes could not afford to make any payments. The bracelet was removed, and probation was revoked because he was unable to pay. Hakes filed a complaint stating payment for the bracelet is punitive and does not promote public safety. The lower court held that he should not be required to pay. The State appealed.


Paying for the bracelet is “understood as implicitly necessary to satisfy the condition itself.” The court can impose the payment as part of the probation when it would reasonably promote the rehabilitative goals of probation. However, if the defendant asserts that he is unable to pay, the court should conduct an ability to pay hearing. The lower court failed to investigate Hakes objection to the payment. Reversed and remitted.

You can read the full text of relevant court documents here.


Kathryn Friedman, Special Counsel, Magavern Magavern Grimm LLP
42 USC § 1983 (alleging due process and equal protection violations)
2018 WL 6533287 (N.Y. Dec. 13, 2018) (New York Court of Appeals)