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A DUII mess, no easy fix

Packed courtrooms, no jail space mean few consequences for drunken drivers

By Cindy Powers / The Bulletin

Published: February 04. 2008 4:00AM PST

In her 17 years on the bench, Deschutes County Circuit Court Judge Barbara Haslinger has seen a woman showing up for court naked and a man convicted of stealing free newspapers.

Yet some folks still manage to surprise her.

“It’s shocking to me that somebody can stand 10 or 12 feet away from me, and I can smell alcohol on their breath,” she said. “And it’s shocking to me that someone could come in like that for an arraignment on a DUII or a sentencing.”

Some days, Haslinger sees just a few people charged with DUII. Others bring so many that they spill into the hallway outside her courtroom.

Haslinger and others in the criminal justice system agree that the process for handling first-time drunken drivers who have made “The Mistake” works well. They go through a diversion program of education and treatment, get their cases dismissed and never come back.

But research by The Bulletin shows that 30 percent to

40 percent do return, and most don’t have much to fear.

Judges here have agreed to hand down standard sentences for first, second and third DUII convictions.

“We have thousands of misdemeanor cases come through court, and we have to deal with these people as effectively and efficiently as possible,” said Deschutes County Circuit Court Judge Edward Perkins.

While consistent with Oregon law, the uniform sentencing can mean someone with a violent criminal past gets the same treatment as a newcomer.

Haslinger and Perkins say that, even if they dole out harsher sentences for those offenders, it doesn’t mean they’ll serve the time.

Like a man convicted of DUII here in 2006 who had killed another man 14 years earlier while driving drunk. He was sentenced to 75 days in jail but served just two before overcrowding pushed him out.

“We have no jail (beds) and have had no jail (beds) for a number of years,” said Des-chutes County District Attorney Mike Dugan. “And we pretty much give you a free pass on the first DUII. You pay some fee, no big deal. Then there is the second, and you pay some fines and you don’t spend time in jail. And then on the third, you still might not get any real jail time.”

Akin to thin young celebs who have made recent headlines, people convicted of DUII in Deschutes County may go to jail to serve their time and walk right back out. Of those who served time in the county jail for DUII in 2006, nearly 45 percent got out early. In 2007, 35 percent did.

Unless they hurt or kill someone, drunken drivers in Oregon don’t face state prison time until they have at least four DUII convictions. If they’ve had a diversion, a fourth conviction translates to their fifth time through the system for DUII.

“Then it jumps to 13 months,” Dugan said. “So we’ve maybe given them 24 hours here and

24 hours there, and then suddenly we say we’re serious.”

Proving the case

Sitting around the lunch table with a younger colleague, Des-chutes County Deputy District Attorney Wells Ashby summed up the challenge of working a drunken driving case.

“If you can try a DUII case, you can try a murder,” Ashby said.

The litany of evidence to show that a person was driving under the influence can be overwhelming.

It includes: The way a person drove, how he smelled, looked and behaved, his performance on field sobriety tests, the cop’s opinion about whether the person was drunk and the results of a breath test, assuming the person agreed to take one.

Yet prosecutors may have only one witness to prove their case — the arresting officer.

Frequent tweaks in DUII law can mean a constant game of catch-up, Ashby said.

Nonetheless, local prosecutors are aggressive. Dugan has directed his staff to go after even borderline cases if they can prove a driver was under the influence of drugs or alcohol.

Oregon law presumes a driver with a blood alcohol content, or BAC, of .08 or higher is “impaired” — the legal standard for proving a DUII case. But in Deschutes County, drivers with BACs well below that threshold are being charged with DUII, and prosecutors are winning those cases.

“It doesn’t really matter to me what the number is,” Deschutes County Deputy District Attorney Van McIver told a group of about 50 people charged with DUII, ordered to hear him speak.

Some people are under the influence well before their BAC hits .08, McIver said.

“We will file .04 DUIIs in Des-

chutes County if we believe they are impaired,” McIver said. “If they slur ... have bloodshot eyes, I don’t care about the number.”

Example: Carlos Almaraz Galan, whose BAC was .06 when he was arrested for his fourth DUII in September.

A judge found the 27-

year-old guilty and sentenced

him to 13

months in prison shortly before Thanksgiving.

“You should not have been

driving, and you had three

previous notices ... You shouldn’t have any alcohol if you are going to be operating a motor vehicle, period,” Judge Stephen Forte told Galan.

That’s the message McIver hopes he got across to the folks ordered to come hear him talk.

“It’s not a game you want to play,” McIver said.

Getting help

Defense lawyers who work with repeat offenders say throwing drunken drivers in jail isn’t going to solve the problem.

Those drivers need help, not punishment, said Bend lawyer Tom Hill, who handles about 50 DUII cases each year. He estimated that half of his clients are second- or third-timers.

“A lot of folks who will come in to me on a second or third will come back in with another one within a few weeks because, if they are on a bender, that can go on for months,” Hill said. “These are people who are in the throes of alcoholism, and I do my best to convince them that they need some help.”

As a former deputy sheriff, Hill does think a DUII charge is a big deal.

“I have responded to fatal accidents where kids were killed as a result of alcohol and have done death notifications in the middle of the night,” he said. “And there is almost no family that hasn’t been affected by a family member or a friend who has had a DUII incident, an accident or a death.

“But my job, when they walk in the door, is to take care of the client,” Hill said.

Which means figuring out if the person was unjustly accused, made a one-time mistake or has hit the point at which intervention is needed for a drinking or drug problem.

In that case, Hill lays out the cards of local drug and alcohol treatment centers across his desk.

“I ask them, 'Do you think you have a problem, and do we need to take care of this today?’” he said. “I have gone so far with some clients as to arrange an informal intervention. I have been able to get some people who are on a real bender to come to my office with a friend, and I have the friend take them right to treatment.”

At the same time, Hill said it is his responsibility to vigorously defend his client. Hill said he runs up against two common hurdles.

First, a client charged with DUII is looking at a pretty hefty outlay of cash, even on a one-time offense.

“It can be $300 for a tow that night, the diversion fee is $350, the diversion evaluation is $150 and then they have to take a series of alcohol education classes at their own expense,” he said.

Those can run anywhere from $800 to $1,500, Hill said. Attorney fees are an additional expense, ranging from $300 to $1,000, depending on the lawyer’s experience and whether the client faces additional criminal charges.

For a second- or third-time offender, those fees just go up. A repeat offender may be looking at an $8,000 bill for a case that goes to trial, Hill said.

In Oregon, a lawyer can argue that a repeat offender should go to treatment instead of jail. But there is only one local inpatient treatment program and, depending on the level of care, costs run $5,000 to $15,000.

“So it places a huge responsibility on the individual to take care of it,” he said.

Hill said the second hurdle is Oregon’s move toward harsher penalties for drunken driving in recent years.

Like refusing to take a breath test, which became a crime in 2003. It carries a $500 to $1,000 fine and a longer driver’s license suspension than the standard DUII conviction.

That same year, the Legislature passed a law providing for a lifetime license suspension for a third DUII conviction.

For clients who are guilty and want to own up to it, the consequences of a DUII conviction can give them pause.

The time and expense of treatment, a conviction on their record and possible jail time are all reasons clients decide to challenge the case, Hill said. If the evidence against them is strong, they may feel backed into a corner.

Those coming in for a second or third DUII have little hope that the system will help them, Hill said, because locking up alcoholics and addicts doesn’t make them better.

“I do not think prison is a place for people who have several DUIIs,” Hill said.

“And our DA’s office is not shy about charging someone that is below a .08, and that is a problem,” he said. “It’s one of the few crimes that you can prosecute simply on one person’s opinion.”

Hill would like to see the system shift its focus from penalty to rehabilitation, mandating treatment instead of stiffer consequences.

At least two Oregon counties have made a move in that direction.

Clackamas and Multnomah counties have DUII courts. Repeat offenders go into treatment and are subject to intensive court supervision that can include electronic monitoring and random urinalyses.

Haslinger said she’s hopeful that Deschutes County will do the same, but there isn’t a movement to do so yet.

So for now, Hill’s clients must work within the traditional court system and legislation that doesn’t see them as addicts.

“My intuition is that we are not being very successful in dealing with DUII and, as a result, our legislation is only going to get harsher and that’s not working.”

The outcomes

Haslinger and Perkins do the heavy lifting when it comes to DUIIs in Deschutes County, handling almost all of the cases.

Most drunken drivers that come before them are funneled into the yearlong diversion program. If they stay out of trouble and follow the rules, the DUII charge is dismissed, and they are vaulted out of the system.

Of more than 500 drivers convicted in 2006, most had not faced a DUII charge before. Yet 198 did have a prior DUII conviction, 44 were third-timers and 16 had three prior convictions or more.

On a recent Tuesday afternoon, Gerry Lynn Parnell was one of nine people before Haslinger for DUII. Parnell, 45, was facing his third DUII since 2000.

He appeared on a video feed from the Deschutes County jail, shaking his head and chuckling nervously as Haslinger told him to stop drinking alcohol.

“I’m trying to stay away from it,” Parnell said.

He was sentenced to 13 days in jail, 75 days on an electronic monitor, a lifetime driver’s license suspension and three years probation.

The sentence was pretty standard and falls within range of what judges here have agreed to do with DUII cases.

About five years ago, they told prosecutors and defense attorneys they would start handing down standard sentences. With the exception of people who have a history of driving offenses, everyone gets treated pretty much the same, Perkins said.

“I mean, believe me, everybody’s got some reason as to why he should be treated differently or more favorably or why his employee or church member or family member should be treated differently,” Perkins said. “And from the opposite point of view, there is someone from the DA’s office who makes him out to be the worst offender.”

Uncertainty about sentencing before the judges’ agreement led to “interminable” sentencing hearings where each side fought tooth and nail, Perkins said.

Now, a person with a criminal past will likely get the same sentence as someone who has never been in court before.

“Absent any studies showing how much you should take into account somebody’s history for negotiating a bad check or criminal trespass or assault, it’s really difficult if not impossible to tell how that should affect sentencing on a drunk drive case,” Perkins said.

That take can lead to some confusing outcomes.

Christopher William Hazeltine’s past crimes include rape, sex abuse, assault and possession of drugs. After crashing his sedan at 7:37 p.m. on a Thursday, Hazeltine, 39, was arrested for drunken driving for the first time.

He pleaded guilty and was given the standard first sentence of two days in jail.

Perkins said he favors community service over other sanctions because he’s found it is the most effective way to get through to people.

The Bulletin’s research showed that, in 2006, Perkins handed out an average of 185 hours of community service work per person. Haslinger averaged 88 hours. But Haslinger actually ordered a higher percentage of her caseload to do community service work than Perkins did.

The stats flipped when it came to jail time. In 2006, Perkins’ average jail sentence of 13 days was less than half of Haslinger’s

30-day average.

Of all the 2006 cases reviewed, the judges handed down DUII sentences that ranged from

80 hours of community service work to five years in prison.

Perkins said he started giving more community service work when a 2003 study by the Oregon Department of Corrections showed it was the best way to reduce recidivism.

And he’s seen it work.

“I remember one case of a repeat offender who had gotten so bad that he spent a year in the county jail,” Perkins said. “No sooner did he get out that he was back on another drunken driving case.”

Perkins sentenced the man to 250 hours of community service, the maximum number of hours allowed for a DUII under Oregon law.

“And he hasn’t been back in the system since,” Perkins said.

Another reason he looks for alternatives is that, while he can sentence people to jail, he can’t guarantee they’ll serve the time.

Frank Oscar Williams is one example. His convictions include two DUIIs and criminally negligent homicide for killing a man while driving drunk in 1992 in Sitka, Alaska .

In October 2006, Williams was convicted here of his third DUII. Perkins sentenced him to 75 days in jail but, because of overcrowding, he served just two.

Williams, 39, was one of 412 people sentenced to serve time in the Deschutes County jail in 2006 for DUII. Of those, 185 were released early, according to Capt. Ruth Jenkin, who supervises the jail. Of the 399 people sentenced to serve jail time in 2007, 103 were released early.

“We’re kind of making threats, and we’re trying to motivate them by the threats of future consequences that we realize may or may not come to pass,” Haslinger said.

The judges’ main goal in sentencing is to motivate people to change so they won’t come back to court again. But in the end, judges only have so much power, Haslinger said.

“Ultimately, we can offer them all the opportunities and threaten them with the consequences, but they have to decide for themselves to make the change.”

Cindy Powers can be reached at 617-7812 or cpowers@bendbulletin.com.

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