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.