The 33-year-old, who had multiple drunk-driving offenses on his record, was later found passed out behind the wheel more than four miles away. The elderly victim nearly died of his injuries. Miller pleaded guilty to felony vehicular assault and was sentenced to eight years in prison, according to prosecutor Jeremy Chaffin.
Derik Ekrem wasn’t driving erratically when he was pulled over in August 2015 near 29 and Epps Roads for a non-functioning license plate light. But a Colorado State Patrol trooper spotted a meth pipe in Ekrem’s truck, and arrested the 53-year-old after he failed roadside maneuvers.
Ekrem, who had three prior driving under the influence convictions on his record, pleaded guilty to felony DUI and was sentenced to two years of probation, said prosecutor Rob Zentner.
Miller and Ekrem’s cases demonstrate the wide range of scenarios and possible sentencing options in felony DUI cases that are chargeable under a law that went into effect in August 2015. The law allows anyone with three DUI convictions — including driving under the influence, driving under the influence per se, vehicular homicide, driving while ability impaired or vehicular assault — to be charged with a felony on the fourth offense, regardless of how old their DUI history is.
While prosecutors and defense attorneys are still watching Mesa County district judges for consistent sentencing patterns, Grand Junction private defense attorney Andrew Peters said he and law partner Andrew Nolan have noticed at least one trend starting to emerge: a more aggressive approach from prosecutors.
Peters, whose practice largely focuses on representing DUI cases, said the district attorney’s office has asked for prison in every one of his felony DUI cases with the exception of one older man whose previous offenses were old. Peters said he believes the requests are based on the idea that, by definition, anyone who has racked up three DUI convictions is by nature dangerous.
“The DAs have primarily been saying, ‘Hey, we think this person is an unacceptable risk to public safety,” Peters said. “The argument is, at least what the DAs are arguing … ‘We didn’t get your attention the first three times, how is the fourth any different?’”
Peters said asking for prison should be a last resort; the new statute specifies that a judge has to consider several factors including the defendant’s willingness to participate in treatment, “whether all reasonable and appropriate sanctions have been exhausted, do not appear likely to be successful, or there is an unacceptable risk to public safety.”
“They’re supposed to sentence these people to probation unless they find that other options have been exhausted,” Peters said.
Mesa County District Attorney Dan Rubinstein said prosecutors haven’t asked for prison in felony DUI cases across the board.
“There are cases where the defendants have demonstrated lengthy periods of sobriety,” Rubinstein said. “In those situations, we are open to the idea that a community-based solution can assure public safety.”
Assistant District Attorney Rich Tuttle said prosecutors in his office have starting discussing felony DUI plea offers in committees “just to find our own consistency” in plea agreements.
“You know, not all felony DUI offenders are created equal in our system,” Tuttle said. “The courts, the prosecutors and the defense attorneys are still getting used to and still establishing what is the consistent range of sentencing on these people.”
While Mesa County prosecutors are still fine-tuning their plea offer process, Tuttle said the law itself is absolutely more aggressive.
“Certainly there are harsher consequences in 2016 than there were in 2014 before this felony DUI law was enacted,” Tuttle said. “People should be aware of that.”
Peters said he and Nolan have adjusted their practice by becoming more aggressive themselves in litigating, often disputing every element from the traffic stop to the blood draws or breathalyzer tests.
“Honestly, when you’re in a situation where the DAs are asking for prison time, we are typically advising our clients to fight them more,” Peters said. “It’s that simple. .. Why would you take that? Fight it.”
Under the old statute, most repeat drunk-driving offenders were handled by county judges; now felony DUIs are handled by district judges. The Mesa County District Attorney’s Office has been tracking the sentences of people convicted of felony DUI since the law went into effect, but Tuttle said it’s still too soon to say with certainty that any sentencing patterns are emerging from the district judges.
“There’s so many factors that go into sentencing, including strength of the case, the aggravated nature or mitigated nature of the person’s history, the sentencing judge, that we haven’t seen clear trends develop just yet,” Tuttle said.
Tuttle said prosecutors across the state lobbied for the change in statute in part because of the wide range of discretion it offers judges, as well as the expanded charge-filing options it gives them.
“I think it is a step in the right direction because it gives judges the ability to impose anything from probation to prison on these cases,” Tuttle said. “It frees up judges to use their discretion to treat more aggravated people with harsher sentences and less aggravated people with more lenient sentences and sentences that will allow them to live in the community and get treatment.”
For Peters’ clients — in general, middle-class men who can afford to pay his fees — the prospect of having a felony conviction on their record is often more daunting than the idea of being incarcerated.
“I hear it all the time. Jail time is temporary. When you get out you’re done,” Peters said. “But a felony is forever. … It’s going to affect everything you do from trying to get a job, possessing a firearm, hunting, it can prevent you from … getting government assistance.”
Peters said the closure of the Mesa County’s Sheriff’s Office-run work-release program in 2016 has hindered attempts to ask for what he considered a good sentencing option for felony DUI convicts. However, Peters, who defends clients on most of the Western Slope, said Mesa County’s program was unique among comparable set-ups in other jurisdictions in that the Sheriff’s Office preferred to cap the length of time that people were in the program, which wasn’t ideal for felony DUI convicts.
The work-release program was closed because it was underutilized and operating costs became tough to justify, according to earlier reports.
Still, Peters agreed with Tuttle that the statute is a step in the right direction.
“I think it is a good law. I think at some point repeat behavior should be a felony,” Peters said. “(But) I don’t believe prison is always the appropriate sentence.”
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