By Diane Jennings, Selwyn Crawford and Darlean Spangenberger
Dallas Morning News
DALLAS — You drink. You drive. You go to jail.
That’s what the billboards say.
But in Dallas County, a leader in alcohol-fueled traffic deaths, you may spend little or no time behind bars — even if you kill someone.
More than 40 percent of those arrested for intoxication manslaughter over the last 10 years never saw a prison cell. Instead, they got probation.
And even those convicted received a more lenient sentence than the state average, according to an examination of court records by The Dallas Morning News.
That outrages some relatives of victims. Marilyn Boyd’s sister was killed in 2001 by a drunken driver who got probation after pleading to manslaughter.
“I feel like my sister’s life didn’t mean nothing to them folks in Dallas,” Boyd said. “You can get drunk, go to Dallas County, run over, kill somebody ... and get a good lawyer and get off.”
But for offenders, probation offers substance abuse treatment — and redemption.
Clay Coons used to brag, “I drive better drunk than sober.” Then he killed a college buddy. His friend’s parents agreed to probation. He no longer drinks. He’s in school. He has a steady job. “How foolish I was, I realize now,” he said.
Dallas County has the third-highest rate of drunken driving fatalities in the nation, according to the National Highway Traffic Safety Administration. In the state’s most recent tally, 83 died in Dallas in 2008 as a result of actions by drivers under the influence — the third straight annual increase.
For many of those drivers who are prosecuted and get probation, the only time they will spend behind bars is between 120 and 180 days in county jail.
Backers of tougher sentencing often are frustrated by the emphasis on treatment. Rehabilitation is laudable, they say, but offenders also should lose their liberty. Doing so might deter other drunken drivers.
Prosecutors, defense attorneys and judges say probation makes sense because intoxication manslaughter cases are incredibly difficult to prosecute.
Also, probationers are forced to get treatment they probably wouldn’t receive in prison, and rehabilitation is less costly to taxpayers than punishment.
Most important, they say, a combination of treatment and probation-ordered rehabilitation makes the public safer.
“The reason it doesn’t work to lock them up is, eventually they get out, and most times sooner rather than later,” state District Judge Tracy Holmes said. “And when they get out, their addiction has progressed, and so they are more dangerous.”
Prosecutors would like to send more intoxication manslaughter defendants to prison, but say the lack of substance abuse programs in Texas prisons forces them to pick between punishment and probation with rehabilitation.
Clay Abbott, DWI resource prosecutor for the Texas County and District Attorneys Association, said prosecutors are frustrated by the “all or nothing” choice.
“We need the ability to get them off the streets, but have them come out of prison fixed,” he said.
Case hurdles
Prosecutors in intoxication manslaughter cases face big hurdles if they go to a jury. They must prove that intoxication caused the death, and prevent the jury from sympathizing with the defendant.
That makes plea bargains, including probation, appealing.
“There are strong cases, and there are weak cases, and we need the discretion to get people into treatment programs,” said Richard Alpert, longtime chief of Tarrant County’s misdemeanor division and a leading expert on DWI prosecutions.
Dallas County First Assistant District Attorney Terri Moore understands the desire for punishment. A drunken driver in California killed Moore’s cousin. The driver went to prison but for “not as long as I thought he should go,” she said.
Though Moore believes, “If you kill somebody you should go to prison,” she knows how hard it is to make that happen in intoxication manslaughter cases. She doesn’t like to offer probation, but “I might have to do it if my case is weak.”
Probation may bring a lighter sentence, but at least it’s not an acquittal. Prosecutors are often leery of jurors in drunken driving cases, leading them to offer probation rather than take a chance at trial.
Though the public initially is infuriated when a drunken driver kills, jurors who hear the case and see the defendant don’t always feel that way.
Some sympathize with defendants because everybody drinks, said Dallas defense attorney Peter A. Schulte, a former police officer and prosecutor.
“There’s a juror sitting there saying, ‘Oh my God, that could be me,’ ” Schulte said.
Unlike in most crimes, jurors often can identify with drunken drivers.
“They’re not thugs,” Abbott said. “They’re not tattooed gangbanger low-lifes ... By and large they have jobs, they have families.”
Intoxication manslaughter defendants also lack malice or intent to kill.
“Nobody is sitting here going, ‘I’m going to get drunk then I’m going to get behind the wheel of my car, then I’m going to drive this several thousand pound deadly weapon, then run it over somebody and kill ‘em’,” Moore said.
Rocky Anderson, 22, was drunk and reaching for a phone in 2003 when he ran a red light. His car T—boned another, killing a backseat passenger, 10-year-old Braden Hopkins.
Despite graphic testimony about the child’s injuries, the jury found Anderson sympathetic. Why? He stopped at the scene, accepted responsibility and later pleaded guilty, asking jurors to sentence him. They saw he was young and were told he had no prior record. They gave him probation.
Vickers Cunningham, the judge in that case who is now retired, said he long ago “gave up trying to predict what juries will do.”
Prosecutors have other reasons to offer a plea bargain, especially if they can’t prove the driver’s intoxication caused the crash. And the victims may have been drinking as well.
Early one morning in October 2004, an SUV driven by Erin Andrews, 32, barreled into a car that had stopped on the Dallas North Tollway.
Moments earlier, the car, driven by Noemi Villarreal, 21, had run into a concrete barrier and stopped in a southbound lane, with its headlights and taillights off.
Villarreal and her passenger, Virginia Soto, 22, died. Andrews, who had been drinking earlier that evening, was arrested for intoxication manslaughter.
But evidence showed Villarreal and Soto also had been drinking.
Realizing a defense attorney could argue that Villarreal’s drinking may have caused the crash and Andrews might not have been able to stop even if she hadn’t been drinking, prosecutors agreed to reduce the charge to aggravated assault with serious bodily injury.
Andrews got five years’ deferred adjudication, in which defendants can avoid a conviction on their record if probation is completed successfully.
Abbott has seen many cases in which the passengers or victims who died had a higher blood alcohol content than the driver. That shouldn’t matter, he said, but “I can tell you it makes all the difference.”
‘They want justice’
Dallas County prosecutors generally don’t offer probation unless the victim’s family approves.
That’s not unusual, particularly if they are friends or relatives of the drunken driver.
Clay Coons had never been in trouble before when he killed his friend Garrett Lux eight years ago. After a night of underage drinking, Coons, 18, crashed his car into a telephone pole. He escaped serious injury, but Lux was thrown through the windshield and died.
Despite the loss of their 20-year-old son, Lux’s parents wrote letters to prosecutors supporting probation. They were a “gift from God,” he said.
The judge gave him 10 years’ probation and six months in jail.
But many of those who approve the probation do so with the belief that the offender will go to prison if he or she violates the terms of his or her probation. That doesn’t necessarily happen because judges often remain committed to treatment instead of prison — even for repeat violators.
In 2001, Oscar Trevino Jr. was speeding through Oak Cliff when police believe Carla Stokes turned her Chevy Lumina in front of his Jeep Cherokee. Trevino admitted he’d had four beers, and was arrested for intoxication manslaughter.
But prosecutors let him plead to a charge of manslaughter because they couldn’t prove he’d have been able to stop even if he’d been sober.
Trevino received eight years of deferred adjudication probation.
“The way I understood it ... if he violated probation he would do pen time,” said Stokes’ sister, Marilyn Boyd of Dallas.
But when he violated his probation in 2003 — arrested on a domestic violence charge — he didn’t go to prison.
Instead, a judge dismissed the domestic violence charge and revoked his deferred adjudication. His prison sentence was suspended in favor of 90 days in boot camp and 10 years of regular probation.
In 2008, he was arrested again, for DWI. He remains free on bail. Trevino’s attorney declined to comment.
“He needs punishment,” Boyd said. “He took her life.”
Assistant district attorney Robbie Pfeiffer understands. “They want justice done,” he said, “and justice is prison time.”
Cheaper than prison
“Technical violators” are even less likely to have their probation revoked. Technical violations are infractions, such as missing a probation officer meeting, failing to pay a fine or even drinking alcohol.
Defendants know judges are reluctant to revoke probation for technical violations. And legislators have made it clear that they don’t want crowded prisons filled with technical violators.
Abbott said that’s because it’s cheaper for taxpayers to keep someone on probation than lock them up. Dallas County probationers generally are ordered get substance abuse treatment and pay for it themselves. The cost of housing an inmate is $47.50 a day, the state said.
Of the 231 cases that began as intoxication manslaughter, at least 37 defendants violated their probation. Only seven are known to have had their probation revoked and went to state jail.
Holmes, the judge, gave another reason not to revoke probation for violators: Prison doesn’t resolve the primary issue drunken drivers face.
“Relapse is part of the addiction,” she said. “You don’t deal with the underlying problem if you just send them off to the pen.”
Harsher sentences
For drunken drivers who kill, other counties are more punitive.
Warren Diepraam is chief of vehicular crimes for the district attorney’s office in Montgomery County, where drunken and reckless driving are the leading causes of death, he said.
While working in neighboring Harris County, he was the first prosecutor to successfully try a repeat drunken driver for murder when the man killed a 5-year-old girl.
Diepraam says people in Montgomery County take a hard-line approach. “Our juries will send them to prison,” he said. “We don’t offer probation on intox manslaughter. We offer prison time.”
Some North Texas counties also take a get-tough stance on certain cases. Denton County prosecutors have charged repeat DWI offender Johnny Barton with murder for the Easter Sunday crash that killed an Argyle woman and her teenage daughter.
Dallas County’s Moore said she believes using a murder charge for intoxication manslaughter goes too far. “Don’t call something murder that’s not murder,” she said.
Even when Dallas County sends someone to prison for intoxication manslaughter, the sentence is usually less than the 20-year maximum.
According to The News’ analysis of records from 1999 to 2009, the average sentence for those arrested for intoxication manslaughter in Dallas County is a little more than 12 years.
Half got less than 10 years. According to the Department of Criminal Justice, the state average is 15.7 years.
Changing attitudes
Mary Kardell, executive director of the North Texas chapter of Mothers Against Drunk Driving, said attitudes on drinking and driving need to change.
“If we had three or four cases of people getting the maximum of 20 years, that will change the public’s view of drunk driving. Like, ‘Oh, my God, this is really a problem ... I know my uncle over here drinks and drives all the time ... He could get locked up for 20 years — I’ve got to do something about it.’ ”
Alpert, the prosecutor who has written several books on DWI law, agreed that it is too acceptable to drink and drive.
“The excessive consumption of alcohol has to be viewed with the same disapproval smoking cigarettes in public is. It has to be viewed as more than a rite of passage to get drunk.”
For now, Dallas County has the right approach, said defense attorney Frank Jackson, who has represented several intoxication manslaughter suspects.
“Putting them in prison doesn’t accomplish one single thing except it vents our spleen a little bit,” he said. “Probation gives them the best opportunity for rehabilitation.”
Last year, 124 state prisoners convicted of intoxication manslaughter were released after serving an average of six years. Only 26 received treatment.
And more than 5,100 inmates convicted of three or more DWIs were released after serving an average of a little less than two years. Less than half of them received treatment.
Moore favors more treatment beds in prison so drunken drivers can be punished as well as rehabilitated.
“I would like for it not to be an either/or,” she said. “I would like for them to go to prison and to be held accountable for taking a life. I feel like we’re between a rock and a hard place now.”
Copyright 2010 THE DALLAS MORNING NEWS