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Driving under the influence… The law

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By Stevie Lowery

This is the third and final story in a series about drinking and driving. This story focuses on the law enforcement and court system’s perspective of drinking and driving offenses.

Kentucky State Police Public Affairs Officer Billy Gregory has worked in law enforcement for 21 years, and during that time he’s seen numerous fatal collisions and injury accidents.
Many of those wrecks have involved alcohol.
He remembers one wreck in particular where officers couldn’t find the driver and they assumed he or she had simply walked away. Before officers left the scene a nearby property owner noticed that his fence was broken. That’s when officers discovered the driver’s dead body, which had been thrown hundreds of yards from the vehicle, and was hidden in a bunch of weeds.
“It’s tragic,” Gregory said. “Drinking and driving is still one of the largest problems that we have. It’s still as prevalent today as it ever has been.”
The problem is especially prevalent in communities where alcohol is readily available, such as Marion County, according to Gregory. While communities have done a better job of promoting drinking responsibly and having a designated driver, it still comes down to an individual’s choice, Gregory said.
“From a legislative standpoint, you can always have harsher penalties, but if there are loopholes in the legislation that allow people to repeat the offense, then we need to close those loopholes,” Gregory said. “It’s up to law enforcement to continue to enforce diligently the laws as they are. It’s up to the court systems to continue to enforce the penalties. If there are circumstances in any courtroom that are allowing for reduction of penalties, then maybe those are things we need to look at.”

PENALTIES & THE COURT PROCESS
The penalties for DUI vary, depending on the number of offenses a person has committed and certain aggravating circumstances, which include:  
• Driving 30 mph over the speed limit
• Carrying passengers under the age of 12
• Driving in the wrong direction
• Causing an accident resulting in serious physical injury or death
• Refusing to submit to testing
• Having a BAC of .15 percent or higher two hours after operating the vehicle

For a DUI, first offense, the standard penalty is license suspension for 30 to 90 days, $200 fine, $375 service fee and 90 days in an alcohol or substance abuse program. If there is an aggravator, a person can be subject to four days in jail.
For a second offense, the standard penalty is seven days in jail, one-year license suspension, $350 fine and a $375 service fee and one year in alcohol or substance abuse program. If there is an aggravating circumstance, a person would be subject to 14 days in jail.
The penalty for a third DUI offense would be 30 days in jail (60 extra days if an aggravating circumstance is present), a two-year license suspension, $500 fine, $375 service fee and one year in an alcohol or substance abuse program.
Once someone has committed a fourth DUI in five years, it is considered a felony, and could result to one to five years in jail, with a minimum of 120 days in jail with no probation (240 extra days if an aggravating circumstance is present), license suspension for five years, and one year in an alcohol or substance abuse program.
Marion County Assistant County Attorney Lisa Nally-Martin, who has been a prosecuting attorney since 1996, said her caseload involving DUIs has increased throughout her career.
“I really think that’s because our law enforcement is very active,” Nally-Martin said.
In regards to the current penalties in place for DUI, Nally-Martin said they don’t address the root of the problem.
“I don’t know that the DUI laws always help to rehabilitate the person,” she said.
More in-depth treatment would help, but locally there is a shortage of resources available for people.
“We just don’t have a lot of inpatient resources that are close by or feasible for families,” Nally-Martin said. “We hear from a lot of people that they want to get treatment but they don’t have the means to do it.”
And wanting the help is key, she said.
“They have to want the help,” Nally-Martin said. “If they don’t want the help and they don’t have the financial or family support to do it, it’s not going to be successful.”
Another issue in Marion County is the overall attitude towards drinking and driving, she said.
“I’ve tried cases in the past when the defendants have been over the legal limit and the jurors have let them go,” Nally-Martin said.
However, the mindset in Marion County might be changing.
Nally-Martin tried a case at the beginning of the year where the defendant refused to submit to testing and she won the case.
“In the past, we would lose every one of them,” she said.
Defense attorney Ted Lavit, who has been practicing law for 50 years, said he would much rather try a DUI case in Marion County than he would in surrounding counties.
“Marion County has a relationship with alcohol that goes back a hundred and some years,” Lavit said. “It’s more widely accepted here than it would be in Boyle County or Mercer County or Casey County or Taylor County. Taylor County is moist now, but those are all essentially dry counties. I think there is a more liberal toleration here. And I’ve always felt that. Defense attorneys outside of Marion County have also expressed that.”
In regards to his clients, Lavit said he believes the courts have been just.
“In Marion County, I think the courts have been very fair,” he said. “The county attorney’s office has been very liberal with defendants.”
Lavit and Nally-Martin both agreed that the time it takes for cases to be resolved has become an issue, partly because of the increasing number of cases in court and the time it takes to get results back from the state’s lab.
Shelly S. Miller, the Commonwealth’s Attorney of the 11th Judicial Circuit, who is responsible for prosecuting felonies committed in Marion, Green, Taylor and Washington counties, said the backload of cases is a problem that frustrates everyone.
“It has become a major issue,” she said. “There are multiple crimes that take up the court’s time. There are not enough days in the court’s calendar for us to get these cases up for trial in an expeditious manner. It’s one of the most frustrating things for the victims and the prosecution.”
Circuit Court Judge Allan Ray Bertram (who serves Green, Marion, Taylor and Washington counties) said it’s a challenge to handle the volume of cases that he has in the four counties that he serves. He also said the way in which crime is addressed in this country continues to change. One viewpoint is that we need harsher punishment, but the other is that we can’t incarcerate our way out of the problem and we must address crime in another way, such as with treatment, Bertram said.
“We’re kind of at a transition point in America now,” he said. “These are serious policy issues in our society in regards to how we address this problem of substance abuse and addictive conduct.”
For repeat offenders, it’s likely the cause behind their conduct is addiction, Bertram said.
“If continued punishment and increased punishment is not deterring these people from their conduct, it’s obvious the addiction has a strong hold on them,” he said.
When asked if he felt the penalties for DUI were harsh enough, Bertram said his opinions do not play a part in his role as a judge.
“The judge’s role is to follow the law that we have as it’s written,” he said. “Your personal feelings about a case are not a factor for the court to consider.”
When asked how he would respond to the perception that judges are given too much discretion, Bertram said judges operate in the structure of the law.
“From time to time, the legislature changes the law leaving the judges fewer options, or changes the law giving judges more options,” he said. “Judges are the face of the court system. Sometimes people like to blame the judge for whatever happens or doesn’t happen. But the judge does not operate in a vacuum.”

ENFORCEMENT
Lebanon Police Chief Wally Brady said his officers have become more aggressive in their enforcement of drinking and driving. As of Aug. 30, Lebanon police had made 110 DUI arrests for the year.
Marion County being a wet county, drinking and driving is more accepted here, he said.
“Until you can change public opinion, you’re going to continue to have that,” Brady said.
Marion County Sheriff Jimmy Clements admits that drinking and driving is still a problem locally, but he said more people are getting designated drivers now than they did when he began working in law enforcement 18 years ago.
“Eighteen years ago you didn’t see that,” Clements said. “Some people are finally getting it.”
For whatever reason, there are still people who do it anyway, no matter the risks.
Clements said the penalties, specifically for repeat offenders, aren’t harsh enough, in his opinion.
“With your habitual offenders, ultimately something bad happens,” he said.
But, penalties, such as increased jail time, don’t really seem to make a strong impact on repeat offenders, Clements said.
So, what’s the answer?
Mothers Against Drunk Driving is campaigning for every state in the nation to pass a law requiring ignition interlock devices, or in-car breathalyzers, for all drunk drivers, to prove they are sober before their car will start. So far, 32 states have adopted laws requiring interlocks for first-time offense. In 2010 and 2011, ignition interlock legislation passed the Kentucky House but stalled in the Senate.
State Sen. Jimmy Higdon said he’s reluctant to approve such legislation for a first-time offender.
“Most first time offenders never offend again,” Higdon said. “A lot of people make mistakes and get the first one. Across the board saying that everybody that got a DUI had to do the interlock… to me it was a little too far reaching.”
Higdon said he would be more comfortable with the legislation if it were for second time offenders.
“I think there is a real issue when someone offends a second time,” he said.
Higdon believes the legislation will be brought back to the table again in the future. As for the laws that are currently on the books, he believes they are harsh enough, but aren’t sure how well they are enforced.
“It’s a little muddy and a little cloudy in how they are enforced,” Higdon said. “You hear about someone who has had three or four DUIs and that person gets in a wreck and kills someone… How did that happen?”
Locally, he believes law enforcement is doing their part to try and reduce impaired driving.
“Anybody that drinks or drives in Marion County is rolling the dice and the odds are not in their favor,” Higdon said. “The odds are they are likely to get caught.”

DID YOU KNOW?
• You're driving illegally if your blood alcohol content (BAC), which is the amount of ethyl alcohol in your blood, is .08 percent or higher.
• DUI goes off your record after five years.
• DUI, first offense: license suspended for 30 to 90 days, $200 fine, $375 service fee and 90 days in an alcohol or substance abuse program. If there is an aggravator, a person can be subject to four days in jail.
• DUI, second offense: seven days in jail, one-year license suspension, $350 fine and a $375 service fee and one year in alcohol or substance abuse program. If there is an aggravating circumstance, a person would be subject to 14 days in jail.
• DUI, third offense: 30 days in jail (60 extra days if an aggravating circumstance is present), a two-year license suspension, $500 fine, $375 service fee and one year in an alcohol or substance abuse program.
• DUI, fourth offense: a Class D felony, and could result to one to five years in jail, with a minimum of 120 days in jail with no probation (240 extra days if an aggravating circumstance is present), license suspension for five years, and one year in an alcohol or substance abuse program.