May 03, 2008
CURTIS JOHNSON
The Herald
Repeat offenders consistently account for a substantial portion of the overall drunken driving problem, and many believe reversing the trend will take increased public pressure on the court system and legislative action.
An April 17, 2008 vehicle crash in Wayne County underscored the problem. Investigators charged a repeat drunken driver with stealing a vehicle, driving it into West Virginia, crossing the center line and hitting another truck head on.
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The crash killed John Michael Boone, 28, of Kenova, and his two children, Jordan Micheal, 3, and Michael Tyler, 2. The father's friend, Thomas "Reno" Hardwick of Fort Gay, also died in the crash.
Father, daughter, son and
friend killed by 8-time
offender Bobby Frazier.
Bobby's most recent
punishment was a fine
and 30 days in jail.
Investigators charged Bobby Frazier, 47, of Louisa, Ky., with being intoxicated at the time. Frazier had at least eight prior drunken driving arrests in Kentucky, and his most recent punishment was a fine and 30 days in jail.
The victims' families are pushing for stronger drunken driving laws. Charles Hardwick said the current system let his family down, and Tronnie Boone said there must be a stopping point to keep repeat offenders from getting behind the wheel. Both men are fathers of the oldest victims.
"The courts are going to have to realize they are letting these people out and giving them too many chances to kill families," Tronnie Boone said.
But stopping drunken drivers is a complex issue. Sometimes prison may be the only way to keep a repeat offender from getting behind the wheel in a society that talks tough against drunken driving but too often excuses it as a human mistake when a loved one or acquaintance is arrested.
Joyce Abbott, the manager of driver improvement for the West Virginia Division of Motor Vehicles, said apathy leads to a lack of public pressure on a system already faced with prison overcrowding and increased criminal caseloads.
"It's not treated seriously enough, early enough," she said. "Instead of treating it like the criminal act that it is, it is treated more like a social ill instead of the possibility of hurting and maiming someone."
Statistics reveal a problem
Repeat offenders account for nearly one-third of all drunken driving arrests, according to national and local statistics. That concerns traffic safety advocates.
"It bothers me when I see someone that has had five, six or seven arrests because I know that they have been drinking and driving more than those five or six times," said Larry Kendall, who is the regional coordinator for the Governor's Highway Safety Program. "No one gets arrested every time they're drinking and driving."
In Cabell County, repeat drunken driving violations accounted for 30 percent of all DUI warrants filed in Magistrate Court between 2004 and 2007. Abbott said repeat offenders accounted for about 20 percent of the agency's DUI revocations between fiscal years 2005 and 2007.
Statistics from the state Division of Motor Vehicles also indicate a drunken driver is far more likely to have his license revoked in West Virginia than be criminally convicted of driving under the influence. The agency revoked 38,198 driver's licenses between fiscal years 2004 and 2007. That is compared with 17,118 drunken driving convictions during the same time period.
Abbott said the disparity proves the administrative court system is doing its job in revoking licenses, but the state's criminal justice system is struggling to effectively prosecute and convict those same offenders.
The discrepancy also can be attributed criminal prosecutors having to meet a higher burden of proof, delays in prosecuting each case and some courts simply not reporting their convictions to the state agency.
Donna Hawkins, state director of Mothers Against Drunk Driving, said her group believes the state's drunken driving laws are strong enough. She said the state needs a criminal justice system to apply those laws, instead of reducing charges and granting plea bargains.
"The general public, in survey after survey, clearly says to get the drunk drivers, particularly the repeat offenders off the road," she said.
Almost half of the felony drunken driving cases filed during 2005 and 2007 in Cabell County were reduced to misdemeanor charges in magistrate court, according to a review of court records by The Herald-Dispatch. The review discovered most every offender pleaded guilty to the lesser charge.
Numbers from the state Division of Corrections indicate a similar problem. The agency's 2007 Annual Report states 92 prisoners were being held on a third-offense DUI conviction as of June 30, 2007.
That equates to 1.6 prisoners per county. The possible sentence for third-offense DUI is one to three years in prison.
The need for public pressure
The lack of evidence, cost of incarceration and large caseloads can lead to criminal charges being reduced. Safety advocates believe those forces can be fought when strong public pressure is applied to prosecutors and judges.
Wayne County Sheriff David Pennington was among several people who mentioned MADD's success when the group used to monitor courtrooms in the area.
"With that pressure, I remember some of the magistrates saying 'Don't do that. We've got Mothers Against Drunk Drivers sitting out there in the courtroom,'" he said.
MADD is currently rebuilding its presence in West Virginia, and that is welcome news to Abbott, Kendall and other safety advocates. They said the group's efforts are largely responsible for pushing state lawmakers to pass strong laws several years ago.
Now those laws need to be enforced, and Kendall said public pressure will ensure that happens.
"If the public knows what is going on in a courtroom, there probably would be more accountability," he said. "That public interest and that public concern needs to be raised again."
Hawkins said the success of those initiatives largely depends upon volunteers stepping forward to provide time and financial support.
But an endless amount of public pressure will not stop all charges from being reduced, according to area prosecutors and circuit judges.
Cabell's Chief Circuit Judge Alfred Ferguson said nobody likes plea bargaining, but he believes it can be a necessity. That is especially true at the magistrate level in larger counties.
"What if they started asking for a jury trial in every one of those cases?" he questioned. "It would come to a screeching halt. There is just no way it could be done. ... It's up to the powers that be to pick out which cases they really want to go forward with and really be hard-nosed with."
The strength of a case also can force a charge to be reduced. For instance, Ferguson said the blood alcohol level could be very close to the legal limit thus causing concern about a potential conviction.
Other reasons include the failure of witnesses to appear in court and differences in the reporting of crime between jurisdiction.
"The reasons are numerous," Cabell Circuit Judge John Cummings said. "What may be illegal in one jurisdiction may not be a crime, or the same crime, in another."
That is especially true in border counties, according to Wayne County Prosecutor Jim Young. He said the evidence needed to support a crime in Kentucky or Ohio may not match the elements of a crime in the Mountain State.
Young, Ferguson and Cummings said researching a prior charge can be a chore. Authorities can use a national crime database to research one's past, but finding that information is only doable when the prior offense is entered by the other jurisdiction. The database may be incomplete, but Young and Ferguson said it can point investigators in the right direction.
Inaccurate information about someone's record also can lead to the wrong charge being filed at the time of an arrest. That forces the prosecutor to reduce the charge at a later date, Cabell County Prosecutor Chris Chiles said.
For example, a prior drunken driving charge only counts as a repeat offense if it occurred in the past 10 years. That exemption led to a New Year's Day, third-offense arrest being reduced in 2007.
Chiles and Young said agreeing to a reduced charge may benefit the state in some instances. The lesser charge may allow longer monitoring on home confinement than a jail sentence. For example, some repeat offenders have been transferred to work release after serving less than a year behind bars because of overcrowding within the state's prisons.
Whatever the reason, the court officials said reducing a charge from first-offense to second-offense does not eliminate the possibility of a third-offense felony charge when the next incident occurs.
Every plea agreement must be approved by a judge, and most decisions about DUI cases are made by county magistrates in West Virginia. They are only required to have a high school diploma, which means they have the least amount of experience when considering a plea agreement supported by a prosecutor and defense attorney.
"I know justice is not done in every case," Ferguson said. "I've been watching the magistrate court system. There are a lot of problems with the magistrate system."
Some will not stop drinking and driving
The toughest of punishments will not always stop a person from drinking and driving.
For instance, prosecutors were forced to seek a life sentence for a Cabell County man under the state's three-felony-strikes-and-you're-out law. Their efforts followed the arrest of Thomas Talbert. He was arrested Sept. 10, 2005, two days after he was released from prison on a prior conviction. It was his eighth drunken driving arrest since May 1992.
Cummings called it a sociological problem, and Ferguson said it is something he has dealt with at many sentencing hearings.
"If you're an alcoholic you can drink at home," Ferguson said in recalling what he tells defendants. "You can pass out. You can throw up. You can make your family miserable. You can get cirrhosis of the liver. You can die at an early age. You can do that all you want to, but once you go out and get in a car and you drive off, then you are my problem because you are a danger to society."
Repeat offenders also have a history of not completing the state's mandatory alcohol education and assessment program, according to Abbott and a review by The Herald-Dispatch.
"You cannot force these people into the program," she said. "They have to go into the programs pretty much willingly. There is no real stick or hammer. There is nothing to force these people into these programs."
Many groups, including MADD and the state Division of Motor Vehicles, support ignition interlock programs. It requires a Breathalyzer to be placed on the vehicle. If a person proves to be sober, then the ignition starts and the person can drive.
Hawkins said newer systems require testing during someone's journey. The equipment also can take photos of the testing subject, thus confirming the repeat offender does not have somebody else blowing into the instrument for them.
Abbott said the interlock system requires the offender to participate in the alcohol education and assessment program.
But opponents say a repeat offender can avoid the interlock system altogether by driving another person's vehicle. For instance, police say Frazier stole the vehicle used in the Wayne County crash.
"They only way you're ever going to keep from driving a car frankly is to incarcerate them," Abbott said. "As soon as they get out, it doesn't matter. They are going to drive again. There just really is no easy answer to DUI."
Young and Ferguson said they support longer sentences. Both said they believe lawmakers should increase the minimum, one-year prison term.
"It probably would be more helpful if you had a more severe penalty for more than third-offense. The fourth and fifth or something," he said. "Those that repeat even after having been to prison, there needs to be some other deterrent."
Ferguson also said he is an advocate of determinant sentencing. That would allow a circuit judge to sentence someone to a minimum three years of prison, instead of a one- to three-year window. The current, indeterminate window currently allows prisoners to max out the third-offense sentence in 18 months.
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