“Affluenza defense” generates controversy in TX DUI case

A lot of attention has been given to Texas Judge Jean Boyd, who sentenced Ethan Couch, 16 years old, to ten years probation for causing the deaths of four people while driving with a BAC three times the legal limit.

The defense attorney argued that the teenager’s parents had failed to properly raise their son.  He claimed that they had had an acrimonious divorce, did not spend sufficient time with him, teach him proper behavior, and gave him everything he ever wanted.  The defense attorney claimed that the boy suffered from “affluenza.”

From Slate:

According to police, Couch was going 70 miles-per-hour in his father’s Ford F-350 pickup in a 40 mph zone when he lost control and started a deadly chain of collisions that claimed the lives of: 24-year-old Breanna Mitchell, whose car had broken down on the side of the road; Hollie Boyles and her 21-year-old daughter Shelby, who lived nearby and had come outside to help Mitchell; and Brian Jennings, a youth pastor who was also playing the role of good samaritan. Two of the seven passengers riding in Couch’s truck were also seriously injured.

Earlier in the night, police say that several of the passengers were caught on camera stealing two cases of beer from a local Walmart. At the time of the crash, Couch had a blood alcohol content of 0.24, three times the legal limit for an adult, and also had traces of Valium in his system, according to police. He pleaded guilty last week to four counts of intoxication manslaughter and two counts of intoxication assault causing serious bodily injury.

From the Huffington Post:

The 16-year-old boy was sentenced Tuesday in a Fort Worth juvenile court to 10 years of probation after he confessed to intoxication manslaughter in the June 15 crash on a dark rural road.

Prosecutors had sought the maximum 20 years in state custody for the Keller teen, but his attorneys appealed to state District Judge Jean Boyd that the teenager needed rehabilitation not prison…

[Judge] Boyd said the programs available in the Texas juvenile justice system may not provide the kind of intensive therapy the teen could receive at a rehabilitation center near Newport Beach, Calif., that was suggested by his defense attorneys. The parents would pick up the tab for the center, at a cost of more than $450,000 a year for treatment.

Scott Brown, the boy’s lead defense attorney, said he could have been freed after two years if he had drawn the 20-year sentence.

But instead, the judge “fashioned a sentence that could have him under the thumb of the justice system for the next 10 years,” he told the Star-Telegram.

A psychologist called as an expert defense witness said the boy suffered from “affluenza,” growing up in a house where the parents were preoccupied with arguments that led to a divorce.

The father “does not have relationships, he takes hostages,” psychologist Gary Miller said, and the mother was indulgent. “Her mantra was that if it feels good, do it,” he said.

I am not surprised that this story has blown up, as the “affluenza defense” is the type of meme that generates controversy.  Of course, it is not truly a defense, it is an attempt to explain the boy’s behavior.

I am not fully convinced that “affluenza” is why the judge sentenced him to probation, in large part because it isn’t much of an excuse.  A person who grows up in a well-off home, with successful parents, should know right from wrong.

On the other hand, his age and lack of maturity may have swung the judge to consider probation.  What gets lost in the “affluenza” frenzy is the fact that recent scientific studies have shown that the teenage brain is still in development, and that the teenage mind does not weigh risks the same way that adults do.  In other words, the normal teenage brain, before adding alcohol into the equation, is already geared towards reckless behavior.  In this case, the teenager had a 0.24 BAC, meaning that his perception of the risks involved and the possible consequences were highly distorted.

Here is a link to the factors in mitigation that a judge in Illinois has to consider when sentencing a criminal defendant.  They include:  the defendant’s mental state, whether he or she was under a disability, whether the crime was intended, the defendant’s character and whether the crime is likely to be committed again. Did this defendant have the capability to fully appreciate the consequences of his actions?

In Illinois, this defendant would be facing the possibility of from six to 28 years in the penitentiary, and probation could only be given in “exceptional circumstances.”  I don’t think affluenza would merit those exceptional circumstances, though possibly his age would.  More likely in Illinois he would receive a sentence in the 8 to 12 year range.

What do you think is the appropriate sentence?

Man gets 15 years for fatal “DUI” even though jury finds he was NOT impaired

Another person has been given a stiff sentence for a “DUI” causing a death even though he was not impaired at the time of the crash.  He received 15 years for causing a fatal crash which killed two people, at a time when he had cannabis metabolites in his a urine.  This could have come from smoking marijuana days or weeks earlier.

The difference between causing a death because of speeding and being found guilty of aggravated DUI is the difference between a fine, or even a sentence of up 364 days in jail if the driver was speeding more than 40 miles over the limit, to a case with a maximum sentence of up to 28 years.

From the Chicago Tribune:

A speeding, unlicensed driver who crashed into another car on the Northwest Side, killing a mother and her teenage son and injuring three other children, was sentenced Monday to 15 years in prison.

Richard Strum, 37, read a brief apology to the families devastated by the 2011 deaths of aspiring beautician Claudia Delia, 35, and her 16-year-old son, Bryan, a charismatic member of a Taft High School dance squad.

Also injured in the crash were Delia’s stepson, Zack Marvin, a high school sophomore whose vision and hearing were permanently damaged on the left side of his head, forcing him to give up his dream of becoming a Marine, and Delia’s son Hauk Marvin, then 3, who broke a leg. A family friend, Chris Diaz, then 16, suffered a fractured pelvis. The group had been headed for an end-of-summer camping trip in Wisconsin.

Strum, a Chicago resident, had not had a valid license since 2003, Cook County prosecutors said, but continued to drive and rack up tickets…

Prosecutors argued that Strum was rushing to pick up his girlfriend on Aug. 9, 2011, when his Ford Mustang, southbound on Austin Avenue, slammed into Delia’s Honda Civic as it pulled out from Sunnyside Avenue.

A urine test found cannabis in Strum’s system, but jurors at the Leighton Criminal Court Building found him not guilty in May on counts that he was impaired while driving. His attorney argued that the amount of cannabis detected was minuscule and could have come from secondhand smoke.

Jurors, though, convicted him on multiple counts of aggravated DUI and reckless homicide

Strum briefly apologized and referred to his Christian faith, but he also said marijuana played no part in the crash.

“I can’t really begin to explain how sorry I am for your loss,” Strum said as he read from a piece of paper while seated at the defense table. “I was driving too fast that day. It was my stupidity that caused the accident, not the use of booze or drugs.”

Linn agreed that Strum was ultimately responsible for what happened, even if he never intended to kill anyone.

“I know he never had murder in his heart,” Linn said before handing down his sentence. “(But) he decided to drive the way that he drove. He drove in an incredibly fast and reckless manner.”

Strum faced up to a potential 28 years in prison. He must serve 85 percent of his 15-year sentence — almost 13 years.

I wrote about this in another blog post over a year ago.  Here is an excerpt of that:

Under Section 11-501.6 of the Illinois Motor Vehicle Code, anyone involved in a serious personal injury or fatal motor vehicle accident is required to submit to alcohol or drug testing…

Under a 2011 Illinois Supreme Court decision, People v. Aaron Martin, 2011 IL 109, a person can be prosecuted for aggravated DUI involving a death even if that person was not impaired and even if they didn’t cause the accident.

You see, in Illinois, a person can be charged with a DUI just for having drugs in his or her system.  The DUI statute states that:

5/11-501(a) A person shall not drive or be in actual physical control of any vehicle within this State while:
(1) the alcohol concentration in the person’s blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11 501.2;
(2) under the influence of alcohol;
(3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;
(4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving;
(5) under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving; or
(6) there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act [720 ILCS 550/1 et seq.], a controlled substance listed in the Illinois Controlled Substances Act [720 ILCS 570/100 et seq.], an intoxicating compound listed in the Use of Intoxicating Compounds Act [720 ILCS 690/0.01 et seq.], or methamphetamine as listed in the Methamphetamine Control and Community Protection Act [720 ILCS 646/1 et seq.].    625 ILCS 5/11-501.

This statute applies to all DUIs in Illinois, whether misdemeanor or felony.

Thus under section (a)(6), a person commits a DUI when they drive, or are in actual physical control of a motor vehicle while there is the presence of a drug in his or her blood, breath or urine.

(Note that this statute only requires a “controlled substance” so prescription pain medication would qualify; also note that unless the driver has the ability to test his breath, blood or urine on a daily basis, he would have no way of knowing when the controlled substance has passed out of his system).

What makes this case a felony then is the following language:

(d) Aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof.
(1) Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof if:
(F) the person, in committing a violation of subsection (a), was involved in a motor vehicle, snowmobile, all-terrain vehicle, or watercraft accident that resulted in the death of another person, when the violation of subsection (a) was a proximate cause of the death.

Note that it is the violation of the DUI statute itself (“subsection (a)”) that leads to the upgrade to aggravated DUI, not any impaired driving.

The penalty for this is a minimum of three to fourteen years if there is one death, or six to twenty-eight years if two or more people died in the accident.  Probation is available only if a judge determines that “extraordinary circumstances” exist.


PA Man charged with 13 DUIs owned 3 rehab centers

I guess if you are going to spend a lot of time in rehab, you might as well own the place.  Maybe that is what Lawrence Konyves of Pennsylvania thought.

According to NBC 10 Philadelphia, Konyves was recently found guilty of his 12th and 13th DUIs.  Unlike Illinois and most states, it is not a felony to be arrested for a third or greater DUI in Pennsylvania, and there is only a minimum one year (and maximum five year) sentence for DUIs four and up.  Konyves has been routinely getting a 1 or 2 year sentence, most of it spent in rehab, up until his most recent two arrests.

According to the story, “Konyves was a self-employed builder who owned three rehab centers and is on the board of directors of a recovery house association.”

This time, the judge gave him a 5 to 10 year sentence.

As I discussed in an earlier blog post, in Illinois a person would be looking at a life sentence for a 12th or 13th DUI conviction.

Sobriety Courts? An idea that is worth pursuing

Today I saw an interesting article from Denver about their “sobriety court” which is an alternative way to dispose of a DUI case for serious alcoholics.  Here is part of the article:

In Courtroom 3C, Judge Brian Campbell presides over Sobriety Court, modeled after Denver Drug Court. Campbell says this type of program reduces the usual 90 percent relapse rate by 8 to 12 percent.

“The ultimate thing that you’re preventing is loss of life. When you start to sit there and think about the 8 to 12 percent and the people who might have died as a result of that, it’s a sobering experience,” Campbell said.

The program requires offenders to spend hundreds of hours and thousands of dollars.

Bauer estimates the total cost to her and her parents is $15,000, the cost of daily drug and alcohol testing, weekly counseling, bi-monthly trips to the court and probation office.

The judge, prosecutor, public defender, and others hold a meeting before each session. Offenders who meet the strict requirements get praise and prizes.

Those who don’t meet the requirements can end up back in jail, which has critics like Denver DUI attorney Jay Tiftickjian concerned.

“It could lead to a much longer sentence down the road,” Tiftickjian said.

In my experience, most DUI offenders are not alcoholics — they are either social drinkers or, worse, alcohol abusers.  What makes these people different from alcoholics is that they have the ability to control their drinking.  Oftentimes, the combination of a DUI arrest, prosecution and alcohol treatment is enough to wake them up to their reckless behavior.

But there is a small percentage of drunk drivers who are serious alcoholics — these are people who typically need to drink on a daily basis, are unable to cut back or quit drinking, and have allowed alcohol to take over their lives to the point that their lives are unmanageable.  These people need serious intervention — and a stint in jail or prison won’t do it.  All that does is keep them from drinking for a while.

I believe that our justice system should attempt to rehabilitate people instead of warehousing them.  And I believe that a “sobriety court,” if done right and not abusively, as has sometimes occurred with drug courts, can be a way to help people and protect the public.

It is definitely something that Illinois should look into.

Appropriate or Excessive?: Life sentence for 8th DWI, no accident

I saw a headline the other day that said that a Texas man received a life sentence for his third DWI. However, if you listen to the above clip, it is reported that it was the man’s eighth DWI, not his third. Four of the previous DWIs were also felonies.

In any event, it is a stunning sentence for a drunk driving case, especially since in this case it was a victimless crime — the driver was pulled over for minor traffic violations. The only extenuating circumstances were his arrest history and that he had a very high blood alcohol level (0.44). On the other hand, he did nothing else that would be considered an aggravating circumstance such causing an accident, being combative to the officers or attempting to flee.

What would happen to a person who commits a similar act in Illinois? A sixth or greater DUI is a Class X felony — the highest level of felony except for first degree murder. Class X felonies are punishable from six to thirty years — but that time can be extended if a person has committed a previous Class X, and a person can get a life sentence if they have had two prior Class X offenses — so in other words, DUI number 8 can result in a life sentence in Illinois too — even if the person did not cause an accident, or actually drive a motor vehicle.

I did not hear the defendant’s age in the clip, but he looks no older than his mid 40s. I fail to see what is gained by keeping him under lock and key when he is in his 80s.

In my opinion, a sentence in the range of 8 to 12 years is a much fairer and appropriate sentence: it will keep the defendant away from alcohol for a long period of time, cost him his job, deprive of his family and take away a significant chunk of his life. During that time, the person will hopefully get alcohol treatment and exit prison a rehabilitated person. I see no reason to treat this person the same as a cold-blooded murderer.

Various studies find that the cost to incarcerate a prisoner range from $27,000 to over $47,000 per year. And cost to incarcerate elderly prisoners are in the range of $60,000 to $70,000. Does it make sense for taxpayers to pay to keep a drunk driver in prison forty, fifty or sixty years after his last offense?

What do you think?

DuPage Prosecutors have new plan to get your blood sample

According to a story today, DuPage County will have phlebotomists on hand to draw blood of those suspected of DUI.

The story states that the phlebotomists are for those cases where a person refuses a breath test and demands a blood test.  I have a hard time believing this, since this rarely ever happens.

in my experience, which is vast, blood tests occur in DUI s because (1) the motorist was injured and was taken to a hospital, not a police station, (2) the officer suspects drug use, which can’t be detected by a breath test, or (3) it is a “no-refusal” in which the motorist refused a breath test, and the police seek to obtain a blood sample without consent. In situation (1), the motorist is already at a hospital, where a blood sample can be easily obtained, so there is no need to hire phlebotomists for that scenario.

I suspect that the only reason to maintain phlebotomists on-call for blood draws is for reason (3) the “no-refusal” situation.  I have discussed no-refusals here and here, including the following:

Illinois courts have stated that while defendants do not have a right to refuse a test, the police cannot use excessive force to draw blood from the individual.  People v. Jones, 214 Ill.2d 187 and People v. Farris, 2012 IL App (3d) 100199.

Police and prosecutors seek to justify these blood draws under the grounds that blood alcohol evidence is the strongest evidence of intoxication, and that because alcohol eliminates from the blood rapidly, it must be drawn soon after the arrest.

…the United States Supreme Court announced that it would be hearing a case from Missouri where a police officer took a recalcitrant motorist to a hospital and had his blood drawn.  The Missouri courts suppressed the blood test, because it was taken without a warrant or a showing of “exigent circumstances.”

If the Supreme Court overturns the Missouri decision, then police will be authorized to drag anyone they suspect of driving while intoxicated to a facility where their blood can be drawn.  This strikes me as a very serious infringement on our liberty.

It seems to me that DuPage is getting ready in advance of the Supreme Court’s ruling in the Missouri case, expecting that the Court will allow warrantless, involuntary forced blood draws in DUI cases.

What do you think?


OK Court orders Defendant to go to Church as part of DUI Manslaughter Sentence

Here is an unusual sentence. A 17 year old young man in Oklahoma was sentenced to 10 years of church attendance — in which he was instructed to pray for forgiveness, as part of his sentence for a DUI fatal crash that killed his 16 year old friend.

Click here for the link to a local TV station:

Tyler Allred was 17-years-old when prosecutors say he drove while intoxicated and killed his passenger, a 16-year-old friend.

A judge presiding over Allred’s case sentenced him to attend church every Sunday for the next 10 years. In addition to church attendance Allred must graduate from high school and take drug and alcohol test for the next year.

The teen’s attorney does not plan to challenge the sentence.

Read more: http://www.koco.com/news/oklahomanews/around-oklahoma/Judge-sentences-teen-convicted-of-manslaughter-to-church/-/12530084/17447690/-/ro03kr/-/index.html#ixzz2CXBGFcFI

In my opinion, the sentence is in violation of the First Amendment ban on the establishment of religion, because in this case the court was not only ordering the defendant to church, but he was also telling the defendant what he should pray for. What if Mr. Allred does not believe in organized religion (like several of our founding fathers) and would rather pray to his Creator in an open field? What if he does not believe that God wants prayers for forgiveness? The judge is placing people in positions where they might have to choose between prison or compelled church attendance in violation of their religious beliefs. This is prohibited by our Constitution.

If he was ordered to attend a mosque would there be an outcry about the imposition of Sharia law?

I have to wonder whether the judge felt that by ordering the man to church he would mollify conservative voters who would otherwise demand a tough sentence for a fatal DUI crash.

The teen’s attorney says he will not appeal the sentence, so no court of review will ever rule on the constitutionality of it. It is likely that Tyler was happy to accept any sentence that did not include prison time, so there is no reason for him to appeal it. Basically, everyone is happy, except for the victim’s family, drunk driving opponents and anyone who is concerned about government entanglement with religion.