Archive for Sunday, November 19, 2006

Prior DUIs don’t always count

November 19, 2006

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The hallway in the Judicial and Law Enforcement Center reeked of alcohol on the late September day Rachel Sprouse showed up to be sentenced for driving under the influence.

Sprouse, 35, of Lawrence, stood at the defendants' table, unsteady on her feet, her words slurred. Sprouse was too drunk to be sentenced, Judge Paula Martin determined.

Despite her state, Sprouse still knew the routine: "Can I just go to jail?" she asked the judge at one point, before turning around and putting her hands behind her back so deputies could take her away to sober up for the night.

On paper, this was Sprouse's first DUI conviction, and prosecutors charged it as a misdemeanor crime. But in reality, it was her fifth conviction for DUI, and it could have been charged as a felony.

Kansas law provides for more severe penalties for repeat DUI offenders: a third is a felony and a fourth or subsequent can result in the person going to prison. But Sprouse is one of several defendants recently in Douglas County who have been undercharged for a repeat DUI crime.

The exact number of such cases is unknown, but these are some:

¢ Victor L. Keeton, 34, Tonganoxie, was convicted of third-time DUI in August 2005. A pre-sentencing investigation by probation officers found he actually had seven prior convictions, six of them in Kansas.

¢ Thomas E. Yohe, 59, Pomona, was convicted of third-time DUI in May when in fact it was his seventh DUI. He told a probation officer that at some point "the system will beat me," according to a report, and that he might have to make changes in his life but he wasn't sure when.

How does it happen?

Figuring out how many prior DUI convictions a defendant has, and then filing charges appropriately, may seem like a simple task that just involves making a criminal background check.

"Prosecutors should run record checks before they file," said Kyle Smith, a Kansas Bureau of Investigation spokesman. "The information is available."

But Dist. Atty. Charles Branson said because of time constraints, legal rules and logistical challenges, it's not that simple. Sometimes, police flag someone as a repeat DUI offender during an arrest, but sometimes not.

"These cases arise normally when someone has been arrested on a DUI charge, and then a charging decision has to be made while they're still in custody," he said. "We have essentially to the next day to make a charging decision. We get our information in the morning that someone's in custody ... we have to have charges filed and to the court no later than 2 p.m. Most of the time we don't get that information until noon."

He said that his office's staff runs 20 to 30 criminal background checks per day that can take 15 to 20 minutes each, assuming a computerized database is up and running.

And even if his staff realizes someone has a number of prior DUIs, it's a different matter to prove them, he said. In order to stand up in court for establishing a felony DUI charge, prosecutors must be prepared to use official "journal entries" from the court where the person was convicted.

It used to be that only DUIs in the past five years counted against a person, but in 2001 the law changed to make all DUIs in the person's lifetime count. In a sense, that made it less likely for people to be charged with the proper number of DUIs.

In old DUI cases, Branson said, the documentation may not be available from the court. Also, a DUI charge can't be used against a defendant if the person didn't have an attorney in that case - something that was common in years past when DUIs weren't treated as seriously.

The result, Branson said, is that sometimes DUI offenders aren't charged properly.

"These cases are exceptions out there, and they do happen," he said. "They happen in jurisdictions all over the state."

Sentencing discretion

When she was charged with misdemeanor DUI in Douglas County, Sprouse had three prior DUIs in Johnson County and one in Olathe, all since 1997.

"As the court's aware, the supporting documentation such as the ... certified driving records and journal entries are not always available to us when it's charged," Deputy Dist. Atty. Bob Claus told the judge at Sprouse's sentencing, according to a transcript.

She was charged in May 2006, and she entered a plea in July. "At the time of the plea hearing, we still didn't have all that documentation in our possession, and she was allowed to plead as charged to the misdemeanor," Claus said.

Defense attorney Skip Griffy said it was his understanding that at the time of the plea, "it was believed that it was a first offense," according to a transcript.

In some ways, Sprouse ended up with a similar sentence to one that a felony-DUI offender might receive: Martin ordered her to serve six months in jail, the maximum allowed for a first-time drunken driver, with the chance of being released after 150 days.

By comparison, a fourth-time DUI offender must serve a minimum of 90 days in jail and up to one year.

So is there really any difference between a first-time and, say, a fourth-time drunken driving charge?

A key difference is that fourth-time offenders are placed in the custody of the Kansas Department of Corrections - on parole, not on probation - once they're released. If they violate parole, they can be sent to prison.

"As a society, I think we should care deeply that the system works - that people who continue to commit crimes receive progressively more serious sentences," the KBI's Smith said.

Flawed law?

Asked whether he thought his office should have done anything differently in the handling of Sprouse's case, Branson said, "I really don't believe so."

He said he believed Kansas law needs to change so that a DUI charge is a DUI charge, no matter the number of prior convictions. Then, he said, the number of prior DUIs a person had could be taken up at sentencing.

"If that change is made, then it doesn't matter if somebody has a prior conviction. We charge them with a DUI. We convict them. Then, as with any other crime, we apply their criminal history to their case," he said. "In these DUI cases, we have to apply their criminal history before they've actually been convicted. We need to look at possibly changing our laws."

State Rep. Paul Davis, D-Lawrence, a member of the House Judiciary Committee, said it's an idea that has not come up in the Legislature, as far as he knows.

"I think it makes sense," he said.

But one concern, he said, is that many DUIs are processed through less formal municipal courts, which may not be equipped to handle cases in the way Branson suggested.

"I think they could be, it just may take some transition to do that," he said.

Comments

Sigmund 8 years, 5 months ago

What a load of nonsense Branson is selling! Charges can always be amended once the correct DUI history is determined, all the way up to trial. The real reason no change in the law has never come up before the Kansas House Judiciary Committee is there is no need for it. This is just another case of a lazy DA trying to spin the fact that he regularly undercharges drunk drivers and lets them back out to drive on the streets of Lawrence.

roger_o_thornhill 8 years, 5 months ago

Fifth DUI? Drunk @ sentencing? Good God! Come on! How was this person even able to gain access to an automobile in the first place? Shouldn't a big, black DUI be tatooed on this person? Someone who has more than two should never be allowed a license again, EVER! That should mean that an additional DUI after 2 should result in some serious, SERIOUS penalties. Year in jail? House arrest? Substance abuse treatment? Beat over the head with a stick? Something. This person shouldn't see the light of day for a couple of years after the fifth DUI. Maybe another example of how alcohol is treated in this country. "If it's legal, it can't be bad, right?"

And Ms. Sprouse,

I would respectfully request that you stay the Hell away from me and my loved ones. I don't think you can be trusted to not put others in harm's way. I don't want to die because you can't control yourself and soceity doesn't think you are doing anything that is all that bad. Be advised, just because you haven't killed anyone yet doesn't mean you won't if you don't change your behavior and/or aren't kept away from the public.

It isn't like I don't like to drink (though it isn't my favorite pastime). I just don't like the idea of someone's "fun" ruining someone else's life. Keep yourself in check.

monkeyhawk 8 years, 5 months ago

After four prior DUIs, one would suspect that Ms. Sprouse did not have a driver's license. Could that have been a clue to the DA that perhaps she should not have been behind the wheel? Or, has our justice system allowed her to continue to retain her operator's permit? I could not find pertinent info in the article if she had her license suspended this time.

Once again, Lawrence, Kansas - a great place to be a criminal.

Kelly Powell 8 years, 5 months ago

To a certain extent i think the old system was better.....Except have a dui erased after ten years...not four...and step up the penalties for repeat offenders.......with the legal limit now .08 a person could have that third glass of wine at dinner and be illegal.....Hell, someone could be really hungover and be illegal. before all the tirades start i would just like to clarify that alcohol related accident reports are designed to maximize the numbers.....If a car accidently hits a bicycle and the wheel rolls off and hits a pedestrian who had drank alcohol....this is considered a alcohol related accident....this is a very extreme and unlikely example, but i used it to illustrate my point....Also m.a.d.d has turned into a lobbyist group who now schill in the halls of power.....It has become a non profit beast who makes some serious profit and power for a few.

topflight 8 years, 5 months ago

Sounds like the MADD organization is going to be contacted, by me. Screw him, i will come up there and stick a law book were the sun does not shine if one of my family members is killed in this county.

Kelly Powell 8 years, 5 months ago

It's a her.....Did you know the founder of madd quit under extreme protest at what her orginazation had become?Like i said, stiff penaltys for repeat offenders but clear the book after ten years....unless it was something spectaculaly stupid.

kugrad 8 years, 5 months ago

Keep in mind that Dick Cheney could have been off the road and in rehab before shooting someone while drinking if he had been dealt with properly after his second or third DUI. Ditto with Bush who had at least 2 DUI's, but somehow that escaped the notice of the mainstream conservative-owned media.

Dixie Jones 8 years, 5 months ago

my best friend and her unborn whild were killed by a drunk driver who had 6 prior DUI's yeah he went to jail...... for less than 2 months and was back out driving when ever where ever he wished...our system is F****d up majorly think about it next time when you or your loved one gets behind a wheel how many prople are you meeting on the highway that are under the influnce and how many have done this same thing TIME AND TIME again all because they know they wont get anything but a slap on the hand and the family that lost the loved one will get a slap in the face.....

Nonsense 8 years, 5 months ago

Sigmund "Charges can always be amended once the correct DUI history is determined, all the way up to trial."

Not if the defendant pleads before the amended complaint is filed. Why aren't the criminal history in these cases treated like any other case like Branson said?

Kelly Powell 8 years, 5 months ago

Hence my statement about stiffer penaltys for repeat offenders.

Jackalope 8 years, 5 months ago

All the prosecutor had to do is charge upon probable cause to believe. As was stated earlier in the blog, he did not have to waite for the certrified documents of prior convictions. The raw records would have been enough. His explination simply does not hold water. If it turns out that the actual and certified records of conviction do not support a felony, it can always be amended. It should be noted, however, that while the minimum sentence may be different, that the possible max penalty for a charge of a class A misdemeanor DUI is the same as for a felony DUI. That is what the lesgislature needs to address, but of course that would cost them money and the price tag of public safety is their self determined utmost priority.

Sigmund 8 years, 5 months ago

"Not if the defendant pleads (guilty) before the amended complaint is filed." True enough, although I have never seen a defendant plead guilty at the first appearance or when the charges are first read, but it could happen. The judges in Douglas County usually enter a "not guilty" plea irrespective of the defendants wishes if they don't have an attorney with them and almost none of them do.

Generally a lot of time passes, at least a couple of weeks, between charging the defendant and a guilty plea, a nolo plea, or trial. There is more than enough time to get the criminal history straightened out and then get the defendant properly charged.

The KBI is correct, "Prosecutors should run record checks before they file. The information is available." And the changes Branson wants have never come before the House Judiciary Committee because the law is clear, tough on repeat offenders, and easy to comply with.

Branson's whining about how busy HE is, and how hard it is for HIM to properly charge, and how HE wants the law changed is NOT an acceptable excuse to put the public at risk from repeat drunk drivers who are not properly charged, convicted, and sentenced in Douglas County. And it will be of no comfort to the family and friends of someone who is killed or injured by a repeat DUI offender who slipped through the cracks because the DA's office is to lazy or incompetent to do their job.

Dorothy Hoyt-Reed 8 years, 5 months ago

Sigmund, These repeat offenders know the system, so they plead guilty right away to a misdeamenor. Read the first part of the story. That woman knew what she was doing. Even drunks know how to beat the system. The answer would be to change the law, or make sure all the proper records are easily accesible by computer. It's not that easy to get records from other counties.

just_another_bozo_on_this_bus 8 years, 5 months ago

Sounds to me like you are mainly upset that the DA is a Democrat, and you aren't, Sigmund. But that's pretty consistent with your nearly exclusively partisan positions on nearly everything.

I have no doubt that in a perfect world, with completely adequate staffing, and no problems created through navigation of bureaucratic channels, Branson could be perfect every time out, as you apparently expect him to be.

But in the real world, the solution he proposed sounds much more practical, and therefore much more likely to keep repeat offenders off the streets.

hipper_than_hip 8 years, 5 months ago

Someone with multiple DUI's isn't going to be helped by sitting in jail for a year; they need help staying sober when they get out.

Until the root cause of the problem is identified and solved, jail is a revolving door, and these folks are out on the street again.

Jackalope 8 years, 5 months ago

I am not certain how partisan politics got into this discussion. Maybe I am not experienced enough on this blog to understand the regulars. However, Democrat or Republican, the vast majority of prosecutors in Kansas have been able to figure out how to operate in the system currently in place in Kansas. The Douglas County prosecutor, Demo or Rep, can do the same rather than just make up some lame excuse for a failed office policy that makes no sense and is no justification for continuing on the same path. Why not just stand up and say that there appears to be a problem here and then address the problem with corrective action. I am sick to death of office holders who would rather sell their children or community safety than admit that there was a mistake made or that there are problems in their organization that need to be addressed.

Jackalope 8 years, 5 months ago

"I heard that drunk drivers hate roundabouts."

You are probably correct. However, a planner would have to be drunk to think that such a quaint and near nonsensical device was a good idea in the first place.

pinballqueen 8 years, 5 months ago

This is a problem everywhere, not just in DG County, I know someone in JoCo who went to jail for their third DUI offense, but that was AFTER someone called the JoCo DA's office and tipped them to previous two DUI's. At the time of their arrest, they were charged with a first offense. They did serve time in jail(after # of DUI's were correctly reported), but came out of jail with full use of their KS Driver's License.

Have they driven drunk since, yes, many times.

Kat Christian 8 years, 5 months ago

Well this goes to show how incompetent this state is at really catches criminals be it drunk drivers to pediphiles. They don't check databases for warrents or criminal histories of any sort. So if a criminal commits a crime in one state and gets caught then goes to another state and gets caught and goes to trial it is like they've never commited a crime before then there punishment is minor. They're back out on the streets after a few months only to commit the crime again in that state or another. And the cycle continues.
When in God's name is our justice system EVER going to make sense, be accurate and honest as it should be?

Tradways 8 years, 5 months ago

Branson has more staff than the previous DA so there goes his we lack of resources excuse. The article used 3 examples, but after speaking with my best friend a probation officer and no I'm not on probation, he informed me that all Sprouse's criminal history was found in about 5 minutes by they're office. Those 3 examples are just a fraction of under charged DUI's by Branson the article would have been way to long to list them all. Glad to see he would not change the way his office handles DUI's even after they screw it up time and time again. Several times at sentencing the judges have had to sentence the offenders for the correct amount DUI's because Branson has under charged them. Branson critized the previous DA now all he does is make exuses and bacically out right lies instead of admitting that being the DA is way more than expected and can handle. I'm sure the Sheriff and Police departments are happy with him trying to blame them for under charging, it's never the law enforcement officers job to provide criminal histories for charging. Of course they're not even allowed in his office so why not blame them.

Sigmund 8 years, 5 months ago

Before this woman got to sentencing (or anyone gets to sentencing for that matter) she had at least two other appearances in court. It is pro forma for judges in Douglas County to enter a plea of "not-guilty" on the first appearances for all defendants, especially if the defendant is not represented by an attorney which at that point almost none of them are. This gives the DA's office at least a couple of days to get the DUI history and amend the complaint. From the article this woman was too drunk in court to be at sentencing, this was NOT her first appearance in court on this case, which is completely different.

If the DA's charging attorney is too stupid to get DUI history in a couple of days s/he needs to be replaced. If on the other hand s/he is too busy then it is the Branson's responsibility go get them help. I don't expect the DA to be perfect in every case, but this article makes it clear this is a chronic problem in this DA's office.

And for all the bozo's on the party bus (quick, duck!) I have had plenty of criticism of Christine Tonkovich (or whatever her name is these days), for starters how she got and kept her job. As far as I remember she was a Republican, and don't even get me started on Flory, yet another Republican.

In fact, the only regulars on this board that refuse to criticize a Democrat or a member of the PLC is bozo and merrill, which in the latter case is particularly ironic since he is a member of the Lawrence Traffic Safety Commission!

Sigmund 8 years, 5 months ago

Oh and for the record my cousin was killed by a drunk driver between Thanksgiving and Christmas several years ago. As this was a busy time for him and he had already done his Christmas shopping. His widow and their two little girls (age 3 and 5) got to open his Christmas presents that year having just burying him a week before.

zzgoeb 8 years, 5 months ago

Mmmm...fascinating! How about a prison for drug drivers...and let the non-violents out?

In many countries in Europe, it's two strikes and you NEVER drive again. Now we have the rationale and constituancy we need to make mass transit viable.

If I ever am injured or have a loved-one killed by one of these folks, I'll have to get the Mafia lawyer, and go after the DA that let this continue!

compmd 8 years, 5 months ago

Kasper has an interesting listing for Rachel Sprouse. Her listed convictions include misdemeanor battery against a law enforcement officer, misdemeanor theft, misdemeanor DUI (1st conviction), three counts of forgery, one count of criminal threat, and one count of possession of narcotics.

Proud day for her and her family. If this is the same woman, which it is hard to believe it isn't, with her past number of convictions it is time to hit her with a felony charge and get her the h3ll off the streets. I am sick of Kansas' nonchalance regarding DUIs. Maybe Kansas should look at what Texas or Illinois does to them.

Harry_Manback 8 years, 5 months ago

My friend got caught driving without insurance for the 2nd time (definately stupid, but not nearly as deadly as a DUI) and got sentenced to three months in jail. If she had the money to pay up front, then she wouldn't had to have gone to jail, but she was a stupid 19 year old at the time. While in there, she met several people who had less time for felony (3, 4, and 5+ DUIs) than she was in there for. For me, there's something wrong with this, when someone purposely endangers other welfare and gets less time than someone who possibly posed only a monetary danger to others.

"When she was charged with misdemeanor DUI in Douglas County, Sprouse had three prior DUIs in Johnson County and one in Olathe, all since 1997."

Also, the last time I checked Olathe was in Johnson County, but oh well...

jafs 8 years, 5 months ago

The laws need to be changed - driving under the influence should result in losing one's license quite quickly - perhaps not on the first offence, but definitely on the second. Three glasses of wine with dinner will affect one's driving skill for the worse, so I think the current limit is ok. And, isn't showing up to court drunk a clear case of contempt of court? Why wouldn't the judge do something about that other than sending her away to sober up?

Scattered 8 years, 5 months ago

Disgusting.

I am guessing that there are many whose family members have been the victims of drunk drivers that would gladly VOLUNTEER to sit at the computer and run checks.

I will sign up first.

Is there no accountability anywhere anymore???

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