By Joe Lambe
The Kansas City Star
KANSAS CITY, Mo. — For decades, Missouri lawmakers regularly tweaked drunken-driving laws to toughen them. But along the way, they neglected to cut an old paragraph that did the opposite.
As a result, a recent Missouri Supreme Court ruling now allows many repeat drunken drivers to avoid felony charges, and it probably will allow others to get out of prison.
In Jackson County alone, prosecutors had about 145 felony cases pending against repeat drunken drivers. Now they must reduce those to misdemeanors, prosecutors said.
That means offenders will face up to a year in jail instead of up to four years in prison.
“This is not what anyone intended,” Jackson County Prosecutor Jim Kanatzar said.
The unanimous high court decision, which involved a Lafayette County case, centered on an old clause left near the bottom of the state’s drunken-driving law since the early 1980s. Legislators have neglected to remove the clause, even when it conflicted with newer language.
Whenever two conflicting standards exist within a criminal law, the defendant gets the lesser penalty, the high court said.
The old clause said that if someone received a suspended sentence after pleading guilty in municipal court to driving while intoxicated, that conviction could not be counted toward state felony charges, which prosecutors can file on a driver’s third offense.
The court’s ruling raises questions, starting with whether the ruling must be applied retroactively. Defense lawyers say yes. Prosecutors are unsure.
But if the ruling applies to previous cases, inmates convicted of some DWI felonies will get out of prison, and thousands of people could have their old felony convictions overturned, defense lawyers say.
“The opinion has sent shock waves through the law enforcement community,” said Kanatzar, who hopes the legislature quickly can fix the law.
Leon Munday, an assistant Jackson County public defender, mailed letters last week to 14 clients serving prison time for felony drunken driving. He advised them to file forms for release before deadlines pass.
“Let all these guys out,” Munday said. “If the legislature is going to criminalize some conduct, they have to make it clear what the heck you can’t do.”
Sen. Chris Koster, a Harrisonville Democrat on the Senate Judiciary Committee, said the ruling could apply to past cases. Lawmakers are still researching.
He said senators are adding a clause to a pending bill and intend to pass it quickly as an emergency measure.
As of March 7, about 1,100 people were in Missouri prisons for felony drunken driving. Last year, Jackson County prosecutors filed about 260 felony drunken-driving cases. It is not known how many involved at least one municipal guilty plea.
Kansas City and many other cities routinely allow such pleas for first-time drunken drivers. Lawyers and experts defend the policy because most drivers never get arrested again for drunken driving.
In the Lafayette County case, the Supreme Court overturned the 2005 conviction of Reginald A. Turner, 54, whose felony was based on a city drunken-driving plea and two state convictions. A judge sentenced him to three years. He was paroled in October 2006.
His appeals attorney, Kathleen Webber, said he and others like him deserve a break because of the unclear law.
“When you can’t tell what counts and what doesn’t, it’s just not fair to subject them to enhanced punishment,” she said.
In the ruling, Judge Stephen Limbaugh wrote that the court could not assume that the old clause was meaningless. It is to be presumed, he wrote, “that the legislature did not insert idle verbiage or superfluous language in a statute.”
Those flaws can happen easily, Koster said, as legislators speedily pass laws in a crush of activity.
As for the county’s 145 cases reduced to misdemeanors, Kanatzar said that he still will seek significant jail time for those offenders, in spite of jail crowding.
Copyright 2008 The Kansas City Star