11th-offense DUI?

Suddenly, 'Wasted Away in Margaritaville' doesn't sound so good

By Kathy Helms-Hughes
STAR STAFF
khughes@starhq.com

   Actual event: "I went to a party, got wasted on pot and alcohol, almost started a fight, vomited on the floor of the bathroom, was asked to leave and was dropped off at the curb by two friends."
   My recollection: "I had a great time last night." Or maybe: "I had fun partying, but I don't recall getting sick all over the bathroom floor." Or finally, "What happened at the party last night? I don't have a clue."
   If you were the life of the party, you probably chose the first recollection, or what is known as "euphoric recall" in addiction treatment language.
   If you did something stupid and you're thinking about hiding out for a week until folks forget, you probably chose the second recollection. You forgot barfing all over the bathroom floor. That's known as "emotional memory loss" by professionals in the alcohol and chemical dependency field.
   If you can't remember a danged thing except arriving at the party and having that first drink, you probably chose the last recollection, known as "blackout," one of the more definite signs of chemical dependency.
   The above scenario came from an "Interactive Journaling" guidebook called "Denial," from Serenity Support Services, one of 60 guidebooks developed by The Change Companies to assist individuals in making positive lifestyle changes. It's also one of the workbooks used in Crossroads' alcohol and drug abuse prevention treatment services.
   In 2001, there were 343 persons arrested in Carter County for DUI, or nearly one person per day -- not a bad-sounding statistic, actually, when you consider that one out of every four cars you meet on the highway is a drunken driver. Just think how many got away ...
   In 2000, there were 316 DUI arrests countywide: 165 by Carter County Sheriff's Department; 101 by Elizabethton Police Department; 27 by Tennessee Highway Patrol; 15 by Tennessee Constables Association; and eight by other agencies. Last year, the sheriff's department racked up 177 arrests; Elizabethton, 130; THP, 25; constables, 7; and other agencies, 4, according to MADD's Richard Lewis, who keeps track of such statistics.
   Unfortunately, no one really knows how many of those arrested were repeat offenders. Odds are, more than one.
   Some of them have repeated the cycle four, five, six -- even nine times, and one has to wonder why it is that these people charged with ninth-offense DUI keep coming back.
   Criminal Court Judge Lynn Brown recently asked a Washington County man exactly why he had DUIs. "Just stupid," the man replied.
   "I tell them, it's stupid enough to just lie around your house drunk. You're killing yourself," Brown said.
   "They're very perplexing. I haven't figured out why they keep coming back and wasting major periods of time of their life in jail. And these people can't tell me [why]."
   District Attorney General Joe Crumley said one reason a person with eight or nine DUI convictions is not in jail is "because the penalties are not enough for somebody who is determined to continue that lifestyle."
   Crumley said one man in Washington County recently was arrested on an 11th offense DUI charge. "He was able to make bond, and he got another one. The hospital was supposed to notify law enforcement when he was finished, because he was being treated, but they didn't. So he's currently an absconder. But once we get him, unless he has prior felonies, he's still looking, at the most, one to two years on each," and that sentence could be reduced 30 percent if he is a Range 1 offender.
   But, Crumley said, "That's the law. To me, if it's more than a 10th offense, it ought to be a high-level felony. If it's over a fifth offense, in my opinion, it should be as important as the burglary of your home. Because that person, it's just a matter of time before they're going to kill."
   When the public reads that someone has 11 DUIs, and says, "You mean this guy has 10 previous offenses?" what that does, Crumley said, "is it makes the judges and the prosecutors look bad. In some countries, you would be serving life on a second or third offense."
   In some countries, they shoot you.
   "The Legislature, when they passed the felony DUI law, didn't give us anything to work with," Crumley said. "In my opinion, in some respects, they hurt us rather than helped us. All of the controversy over a .08 percent blood alcohol for a DUI, to me, is nowhere near as important as a mandatory [blood alcohol] test."
   As Tennessee's "Implied Consent" statute now stands, a person has the right to refuse a blood alcohol test. A person convicted of second-offense violation of implied consent faces a mandatory minimum of five days in jail, Crumley said. "But what is five days to someone who should be looking at 180?"
   Crumley has told both the National Highway Traffic Safety Commission and members of the Legislature: "If you want to give me something to work with, give me mandatory testing." As long as people can refuse, they have an issue which can be tried in court, he said.
   "DUI is like a murder case: It's a 'bifurcated' issue, which means it's a two-part hearing. You try the issue of guilt on a DUI. If they find the defendant guilty, then you come back and you try the issue of whether this is a second or subsequent offense," he said.
   The jury is not told that the defendant's current charge is actually his 11th DUI offense at the time of trial. "The law won't allow me to use something that might make somebody think: 'Well, if they were guilty in the past, they're guilty this time,' " Crumley said.
   "I once tried a sixth-offense DUI. The jury convicted on driving on revoked and resisting arrest but they hung on DUI. The judge asked me: 'Are you going to try this again?' I said, 'Judge, I have to. This is his seventh offense.'
   "I saw one juror actually elbow the person next to him. The defense attorney jumped up, screaming, saying, 'I can't get a fair trial with this jury now, because they know this has been hidden from them.'
   "But that jury was absolutely livid because what we had was this defendant, who was only 23 or 24 years old, but it was his sixth offense. And I couldn't tell them that. I honestly feel like on multiple offense, you have so much at risk, you're more likely to lie. I think that it is something that's relevant to the jury -- but it's just not the law."
   Crumley said he has talked to jurors many times who were extremely upset that they weren't allowed to know the defendant had a number of prior convictions. He remembers the look of amazement on their faces when they come back and the judge says, "We're going into the second phase of this trial."
   "They say, 'What are you talking about?' And you say, 'Well, this is the person's sixth offense,' and you read that portion of the indictment alleging each of the different dates. Juries just get angry at that stage -- and they should be," he said.
   Judge Brown said that if the public wants to keep multiple DUI offenders from coming back, "They're going to have to be willing, as taxpayers, to spend the estimated $30,000 to $35,000 a year to house and feed and give the inmates free medical care.
   "I wish I could say there was a solution, but the reality is there are some problems for which there are no solutions. Prohibition didn't work.
   "Some people who get older, who get to be 35 or 40, they grow out of it; other people will never grow out of it," the judge said.
   "You can't force somebody to become rehabilitated. If they don't want to change their life, there's nothing anyone, short of the Lord Almighty, can do."