When is a DUI not a DUI?
That’s a question some residents are asking in the wake of recent court cases in Haines, where the scales of justice appear to tip in different directions for different defendants in similar circumstances.
Take the case of Jay Linhart, a 53-year-oldequipment operator who was arrested Feb. 27. According to court records, police were tipped off that Linhart may have been driving drunk when he left a Second Avenue lounge around 4:30 p.m.
Linhart refused to discuss his case with the CVN, but according to police, his pickup crossed the center line and nearly hit officer Kevin Kennedy’s patrol car before coming to a stop. Linhart failed a field sobriety test and scored .153 on a breath alcohol test, nearly double the legal cut-off point for driving.
Linhart told police he’d had some drinksand, after submitting to the Breathalyzer, he was arrested.
Linhart hired a private Lower 48 attorney, David Mallet, who said he’s handled more than a thousand DUI cases.After negotiations with District Attorney David Brower, the state agreed to charge Linhart with negligent driving, an infraction that compares to a parking ticket, although he was fined the maximum, $300.
Linhart’s attorney declined to comment on the case and Assistant District Attorney Amy Williams said her department’s policy is not to comment on the subject of negotiations between counsel. Brower was out of the office this week.
Francis Adams, a 34-year-old former school secretary, also was arrested for drinking and driving in Haines, on Feb. 9.Adams said she had a few drinks in Klukwan, and then left for town before midnight.
When she got to town, she was intercepted by officer Simon Ford, who later said her truck was weaving slightly. Adams failed field sobriety tests. She submitted to a Breathalyzer test, which determined her blood alcohol was .155, nearly identical to Linhart’s.
She was assigned to public defender David Seid, who, she said, didn’t show much interest in her case. The first time he phoned her was just a half hour before her first court appearance, to tell her he was busy and needed to reschedule. His second call came only a few hours before her sentencing, she said.
Seid didn’t return phone messages left at his office late Wednesday afternoon.
Adams said Seid told her about her plea options, but she figured the Breathalyzer evidence sealed her fate. “I told him I would just plead (guilty) because that’s what the Breathalyzer said and there’s really no way around it. I was just trying to be honest. I couldn’t see where he could help me at all.”
Adams, who said she has no prior criminal record and early this week was dreading the thought of her three days in jail, was convicted of DUI.
She was sentenced to 60 days in jail, 57 suspended and fined $3,000, $1,500 suspended. She was ordered to pay $125 in surcharges, $330 for imprisonment and $200 restitution. Her sentence included completing alcohol counseling, 90-day license revocation and one year’s probation. Another expense will be a device she’ll have to blow into to confirm sobriety and start her vehicle..
“I think it was pretty harsh. I’ve never been in trouble before. I have to be on probation for a year. I’m not a bad person. I had two or three drinks. What I gathered from the whole thing is they wanted to make an example out of me,” Adams said.
Linhart’s and Adams’ cases aren’t the only ones of concern to residents. In three separate cases last fall where defendants failed either field sobriety or Breathalyzer tests, they were convicted not for drunken driving but for reckless driving or, in one case, leaving the scene of an accident.
Haines Borough police chief Gary Lowe said there are many variables in prosecuting a case, including attorneys, police procedure and evidence.
Lowe wouldn’t comment on individual cases but said the department has had multiple training sessions to improve its conviction rate.
“A lot of the cases that were reduced were the fault of the officer, just some technical errors on the part of the officer,” Lowe said. “A lot of sentences have to do with the prosecuting attorney. She’s making a judgment on the strength of the case.”
State law allows “charge bargaining,” in which a charge is amended from DUI to a lesser charge.
Public safety advocates say one problem with reducing charges is that DUI convictions are cumulative, resulting in more severe penalties with each conviction. The law is intended to get drunken drivers off the streets, but it only works with DUI convictions, they say.
Matt Felix is director of the National Council on Alcoholism and Drug Dependence in Juneau. His agency keeps tabs on the state’s laws regarding drinking and driving.
Felix agrees with chief Lowe that each case is different and there are factors that might result in different penalties for different defendants. “But sometimes it’s a judgment call (for the district attorney), or a matter of who’s the defendant.”
The problem with not prosecuting alcohol-related cases as DUIs is that the drivers can escape the state’s penalty for DUI – which includes alcohol treatment and counseling. “There’s no intervention with a lesser charge.”
That also gives peopleprone toward drunk driving more opportunities to hurt themselves or someone else. “You’re not preventing anything.”
If community members feel the law is going too light on drunken drivers, there are remedies, Felix said.
“Here in Juneau we get on our DAs really hard when they start reducing charges. We have advocacy groups that watch this kind of stuff. It’s absurd. The Alaska Legislature, in making its laws, was absolutely clear about DUI being a serious crime. Before any DA reduces it down to a lesser charge, there better be a substantial reason. And if a pattern develops in any community, it should be brought to the attorney general’s attention.”