Last year, Governor John Hickenlooper signed into law a bill that made DUIs a class 4 felony under certain circumstances.
Among them: The violation must occur after three prior convictions for DWAI, DUI or DUI per se and the offender's blood-alcohol content has to be at least .15 — nearly double the legal limit for intoxication.
Doyle Carmack, a 54-year-old from Aurora, met both of these conditions following his arrest on March 16. The bust was his sixth for DUI — he had five previous convictions in Missouri — and his BAC registered at a hefty .235.
Prosecutors asked for a four-year community-corrections jolt for Carmack. But late last month, he was sentenced to five years of probation and 75 hours of community service — meaning no incarceration whatsoever.
This result frustrates 18th Judicial District DA George Brauchler, yet he doesn't place the blame on the judge in the case — whom he declines to name, partly out of respect, but mainly to focus his criticism on the state legislature for not writing a mandatory-minimum requirement into the felony-DUI bill.
"This isn't about her," Brauchler stresses. "It's about the law."
As Brauchler points out, "Colorado was one of the last states to join the felony-DUI ranks. I think 45 or so other states had felony DUI laws." (Mothers Against Drunk Driving puts the current count at 46.) "But prior to that, we had DUI laws that said if it's your first DUI and you have a blood-alcohol content in excess of .20, you're going to go to jail for at least ten days. And if it was your third offense or more, you had to be in jail for at least sixty days. This guy had both of these things."
The felony-DUI law was supposed to toughen punishment for the offense, but in Brauchler's view, "we tripped up when it comes to making the provisions consistent with the other sentencing portions of our DUI laws. And so, under the current law, he got probation and no jail time at all — which is weird and probably unjust in some ways to those other people who we prosecuted years ago who had a blood-alcohol content of .20 or had three or more DUIs."
Brauchler stresses that "we weren't arguing to lock this guy up and throw away the key. This wasn't a hang-'em-high approach. Our pitch was that this guy needs a four-year community-corrections sentence, where the guy would likely get a year of residential community-corrections time before he started to be transitioned back into the community. If he had gotten that, not only do they say you can't have a car, but they prohibit you from having a car and monitor you, because you're in a residential facility. And they force you to go through the treatment regimen you're supposed to get. It's a much more restrictive, confinement-based way to get people the rehabilitation they need in addition to providing a punitive sanction that they don't want to repeat."
The sentence Carmack got instead is "reflective of the discretion the legislature built into this statute," he maintains. "It allowed this guy to have none of these consequences and none of these constraints."
The lack of a mandatory minimum also results in what Brauchler calls "broad discrepancies in punishment for the same crime."
As an example, he points out that days after Carmack got probation, Brighton's Wesley Hunt was sentenced to eight years of prison for his fifth DUI in the 17th Judicial District, which borders his own.
Granted, the circumstances in the two cases were different: Carmack was alone when he was pulled over in March, while Hunt was in the company of his two young daughters, ages five and seven, at the time of his arrest and arrived at his girlfriend's home after allegedly "hitting several parked cars, driving on the wrong side of the road and driving over a mailbox," the 17th Judicial DA's office points out. On top of that, one of the kids hit her face on the interior of the car as he sped away from a crash, winding up with a black eye in the process.
Nevertheless, Brauchler feels that "one guy getting eight years in prison and the other one not getting a single day in jail" is an indication that the system is out of whack.
Of course, mandatory-minimum sentences have been widely criticized by jail and prison reformers in recent years, particularly in the case of drug offenses — gripes that shouldn't apply to Colorado, Brauchler believes, because of reform efforts put in place over the past few years. ("We're way ahead of the federal government on that," he believes.) But he calls DUI "a unique charge — a charge that's unique in this way. We can protect ourselves to some degree from incidents of burglary and armed robbery and all sorts of crimes by where we live, where we go at different times of day and how we conduct ourselves. But the one thing we can't do is protect ourselves from drunk drivers. In twenty-plus years of doing this, I've seen DUIs on every kind of road you can imagine and every time of day you can imagine. We're completely vulnerable. Little painted lines [can't] protect us from careening into each other at 65 plus miles an hour. We absolutely have to be protected."
Admittedly, Brauchler is "a bit more sensitive" on the subject of DUIs "than some people are, for a couple of reasons. One is that the 18th Judicial District has had more DUIs over the last fifteen years than any other district in the state, and second place isn't even close. And within the last month or two, I stood up and argued for the incarceration of a retired Army war veteran" — ex-colonel Eric Henderson — "because he drove drunk and killed a state trooper" (Colorado State Trooper Jaimie Jursevics) "who was on our roads trying to protect us. And this is the third officer who died at the hands of a drunk driver I prosecuted since I took office."
That's why Brauchler is beseeching the legislature to revisit the felony-DUI law in the next session and put a mandatory-minimum component in place, in order to "send a clear message to the community and to people who even for a moment think about how they conduct themselves when they're drinking. I think we have to have a promise of some kind of heavy sentence if you engage in this type of behavior, especially for felony DUI, because it's repeated behavior."
And when he testifies in support of such a change, Brauchler promises to raise the case of Doyle Carmack: "I'll say, 'Here's an example of why we need this.'"