Issue Before the Court: At a SORA hearing to determine the sex offender’s risk of re-offense, was evidence that the offender was drinking on the day of the offense sufficient to establish "drug and alcohol abuse," under Risk Factor 11, of the Risk Assessment Instrument.

Held: No, the prosecution did not meet its burden of clear and convincing evidence. Relying on the Board of Examiners of Sex Offenders Guideline and Commentary, which provides that the risk factor is not meant to include "occasional social drinking," the Court of Appeals held that the People had to show more than just drinking at the time of the offense, in order to meet the Board of Examiners’ Guideline that points should be scored on the Risk Assessment Instrument if the "offender has a substance abuse history or was abusing drugs and or alcohol at the time of the offense."

CAL Observes: The Court’s opinion provides practitioners with guidance regarding evidence that might be relevant to the risk factor calculation. For example, one defendant made a statement that he had a "few beers" on the night of the crime, usually consumed 2 or 3 beers once a month and had never received a substance abuse evaluation. The Court noted that the People "failed to prove the number of drinks [defendant] imbibed, failed to show that his drinking was excessive, failed to demonstrate that defendant was intoxicated, and failed to provide evidence that his drinking was causally linked to the sexual assault. In the companion case, the defendant admitted drinking at an office party before the first offense. However, ‘[t]here was no indication in the record that [defendant] abused alcohol by drinking in excess, that [defendant] became intoxicated, or that alcohol affected his behavior on the day in question. It is not clear from the record what time the drinking occurred, how much [defendant] had to drink, and how much time passed before he abused his victim."

Incidently, the Court dropped a footnote to suggest that the occasional use of illegal drugs "may raise different issues from social or occasional drinking."