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Show Officials faragle wifh drunk driving law by Rob Moore assistant editor Drunken driving isn't a new problem. But local officials agree the effort to fight it has taken on twists because of changes in Utah's drunken driving law. One local attorney has decided to fight the law, claiming that the legislature has threatened constitutional rights of individuals by assuming the role of a judge. (Ironically, a local member of the legislature who is also a lawyer, claims the law has been improved to protect constitutional rights.) The newest wrinkle in the law was added by the legislature this year. It provides for a mandatory jail sentence of at least two days and loss of license in addition to a fine of up to $299. But that by itself doesn't seem to be reducing the number of drunken drivers, law enforcement people in the county say. "All it's doing is crowding the jails," said Uintah County Sheriff Arden Stewart. Verna1! City Police chief Robert Downard objects to the law because of its complexity. "When they keep it simple, it's ten times better for you and me. A drunken driving trial in circuit court is as major a trail as we get into." It is hard to tell whether increased publicity nationally and statewide on drunken driving means the problem has become worse locally. Stewart, Downard and Deputy Uintah County Attorney Richard Davidson say enforcement policies haven't changed they want to get drunken drivers off of the road. Arrests made by the Sheriff's Department from driving under the influence of alcohol or drugs increased form 11 in 1977 to 67 in 1981, according to Stewart. There were 28 in the first three and a half months of this year, he added. "It's really alarming to us. The jail fills up every weekend," he said. Downard said -driving under the influence (DUD arrests in Vernal City decreased from 120 in 1979 to 87 in 1981. A task force for drunken driving is set up for holiday periods, and an officer assigned only to traffic control during peak hours of the day is told to look out for drunken drivers. "As enforcement goes up, we find that drunk driving is reducing. The statistics show our effort is fruitful in . f, ; u ' - --it': :y -is jf..;i PERSONS WORK to loosen metal roof from Diamond Dia-mond Hills' office and gift shop after heavy gusts blew the roof off Saturday. The roof damaged a vehicle parked near the building. part," said Downard. "We've experienced a decrease, but it's still a significant problem. We had three fatal accidents this year, and all three were alcohol-related." Davidson said there are a "deplorable" number of repeat offenders, and he added that the average blood-alcohol level in those arrested is between .16 and .20 percent. Davidson said the mandatory sentence for a first-offense drunk driver does not sort out the repeat offender, like in years past when a first-offender first-offender had a jail sentence to look forward to it caught again. "I'd like to see a difference in the state law. Like Burglaries the first offense is a Class B misdemeanor, the second is a Class A, and so on." Downard would also like to see the seriousness of the crime increase with each offense. "Instead, they (legislators) get in here providing jail sentences, including a certain time in a drunk tank. "Everytime they touch it (the law), they make it more unenforceable. If you keep things simple, we can increase conviction rates. You add the whatfor, whereby and whereas... Everytime you do that, you have a defense attorney challenging you on these points." A gray area he pointed out is the blood-alcohol percentage at which a person is declared legally drunk. The law states a driver with higher than .08 percent is "presumed" under the influence. A different section of the law states that it is illegal to operate a vehicle with a blood-alcohol content of .10 percent or higher. Another section states that a blood-alcohol blood-alcohol test taken more than two hours after the alleged offense can be admissible as evidence if the judge weighs it against other factors. Vernal police Lt. Mike Hamner said in Jiat kind of case, an extrapolation process to determine a blood-alcohol level at the time of arrest has proven to be a reliable piece of evidence. In both of the above examples, presumption is the key factor, said (Continued on page 4) Drunk ... (Continued from page 1) Downard. "What judges and prosecuters refuse to deal with is probable cause." The Vernal Police Department's policy is to go to court with the idea that a blood-alcohol test is extra evidence. "Our philosophy is that the blood-alcohol blood-alcohol is nothing but a capstone. We have a case on the evidence gathered at the scene." Downard added that such evidence includes erratic driving, alcoholic beverage containers in the vehicle and even the smell of a driver's breath. Attorney Robert McRae, who with two associates represent 21 persons arrested for drunken driving in a civil suit against Justice of the Peace Brent Felch, claims the legislature has overstepped over-stepped its bounds by prescribing punishment, and said community service is better than jail. (See story, page 2) The suit argues that the seriousness of the offense puts drunken driving out of the jurisdiction of the Justice of the Peace. "You start with your basic grammar school constitutional law thing a person is innocent until proven guilty," said McRae. State Rep. Gayle McKeachnie, R-Vernal, R-Vernal, said the law is necessarily complex to make sure a person's constitutional rights are protected. The law is not perfect, he said. "When you have a general law, you ha ve to leave flexibility in the courts for the general situation," said McKeachnie, an attorney. "From his (Downard's) perspective, the law doesn't have all the flexibility he needs. But the courts probably require that the legislature can't make certain things a crime without incorporating due process. You have to have a balance, and the court requires individual rights to be balanced." Felch said there are probably a number of legal problems with the law. "It will probably be declared unconstitutional because the legislature is acting in a judicial realm. "The law has taken on complf xity to protect those who are not LUI. I probably dislike drunken driving as much as anyone. But, the law has to be reasonably comprehensive. A number of things can appear as drunken driving." Felch said it is tough to carry out the penalty phase of drunken driving enforcement, and that sometimes it doesn't work at all. He believes bigger fines and jail sentences can also disrupt lives to the point of ruining careers and adding to welfare rolls. "I had a person in here with five DUI convictions. He's been to ARC (the Alcoholic Recovery Center) in Provo, twice. He tells me, 'Maybe I should go again because it will do some good.' What he's really saying is that he'll do the same thing again and again. "If a person doesn't want to be cured, he won't be. They serve their 180 days, and two days later they're back in again." McKeachnie said vehicle impoundment would have become a penalty had it not been for Gov. Scott M. Matheson's veto. "We did not override because the sponsor conceded there were problems. The Governor said, 'It's too harsh, it's too automatic, it doesn't protect a person's rights.'" McKeachnie said the drunken driving issue has been raised in each of the four legislative sessions he has taken part in. "We've considered automatic jail sentences now, it's part of the law we've considered longer jail time. The statistics seem to indicate that jail time doesn't really make a significant difference in reoccurrence. If I'm not mistaken, the law requires a jail sentence of to up six months. But I don't see judges putting people in jail for six months." "It's a dilemma," said Downard. He referred to a child abuse case in which the offender ended up serving a six-month six-month sentence after being convicted of manslaughter. Then he said, "We'll take a drunken driver and put him in jail for six months solid. I wonder, where is the perspective?" Downard said a drunken driving arrest he made in 1979 while a detective sergeant with the Vernal City Police came to trail last month. Davidson said publicity could help solve the problem. "Whether people ignore it, or whether they don't know I don't know. If drivers knew that all drunk driving cases would be prosecuted, word would get out. |