Skepticism, optimism and uncertainty surround DWI law

By KURT NESBITT

Journal Staff Writer

NEW ULM -- Authorities in Brown County see both good and bad in Minnesota's new DWI law, which officially took effect Thursday.

The new law was enacted by the 2001 Legislature and Gov. Jesse Ventura in response to public concerns about drunk driving and raises a person's fourth DWI offense within 10 years to a felony-level charge.

Supporters of the change say it will help deter people from driving while under the influence of alcohol.

Critics say increasing the level of the offense will probably only increase caseloads and costs of court trials and do little to deter problem drunk drivers.

And still there are some that don't believe the change will have an effect one way or another.

The new law will make the fourth DWI offense a felony charge from now on. The difference between the new law and the old one is mainly the effect that they have on sentencing guidelines. With a felony DWI charge, a defendant could see more time in court, county jails and even state prison upon conviction. Drunk drivers face between 3 and 7 years in prison with about $14,000 in fines under the new law.

According to the Minnesota Supreme Court, gross misdemeanor DWI cases have increased by 57 percent since 1997. In Brown County, the number shot up 66 percent in the same time frame. Court officials there said DWI is one of the most common types of misdemeanors in the county. So far, 42 gross misdemeanor cases have been filed in Brown County this year.

Still, Brown County Court Administrator Carol Melick said the new law isn't going to increase her staff's workload, but will change the types of cases they handle. She said changes could come in the way the cases are processed through the court system. Felony cases see jury trials more frequently than any type of misdemeanor case, so plea agreements could be less common than before, Melick said.

"That's just a guess. It's totally up to the attorneys," Melick said. "People are more likely to plea to a gross misdemeanor because of the possible sentence. Felonies have harsher sentences."

In the many years that Patrick Moriarty has worked both as a private lawyer and a public defender, he's seen hundreds of DWI cases. So many, in fact, that he doesn't remember the exact number. He said the law was passed because DWI is such an unpopular offense.

"We've got the death sentence to deter people from killing and you know what? We've still got murder !," he said in his New Ulm office this past week.

Like Melick, Moriarty said he thinks the law will result in more trials and will increase the cost to the community because of the population going to the Brown County Jail.

"It won't have a significant effect on reducing the number of DWIs, so I wonder what is the purpose?" he said. "However, I don't second-guess the Legislature for trying to control what is a problem."

New Ulm City Attorney Hugh Nierengarten agreed. Nierengarten, who prosecutes all the DWI cases that happen within New Ulm city limits, said he doesn't think the Legislature made the right decision.

"I believe prison is reserved for serious felonies and crimes against people," Nierengarten said. "This needlessly adds to the cost."

In 20 years as a prosecutor, Nierengarten has seen many repeat DWI offenders and said he doesn't see how the new felony disposition is going to keep people off the streets or dissuade them longer than the existing law.

"Felonizing it is not a solution, even though I am a strong advocate of tougher DWI punishment. This is the product of a disease and suspending a license doesn't deter it. It's putting a new label on the same behavior."

Judge Terry Dempsey doesn't necessarily see it that way.

"I think something had to be enacted in order to get the desired effect," Dempsey said. "Increasing the penalties was the equitable thing to do from the standpoint of what the offense involves."

Dempsey added, "The deterrent effect is hard to measure because you don't know how many people are doing it. If it decreases by 5 percent, isn't that a plus? That's got to have an effect on reasonable people."

Brown County Attorney Jim Olson echoed Dempsey.

"My personal feeling is, for repeat offenders, it's about time for the legislature to act and put teeth in the law," Olson said. "It time that we took care of these people."

In many DWI cases, the sentence is usually 30 days in county jail followed by several years of probation. Making the fourth DWI a felony will increase the amount of time spent in both jail and on probation. Capt. Paul Wieland, administrator of the Brown County Jail, estimated that 17 of the 41 inmates in the jail are being held on DWI offenses. A year ago, the jail had 28 inmates -- 11 of which were in for DWI convictions.

"With the way the law is, they could be sent to prison," Wieland said. "We do see quite a few for DWI. We've got more in now for controlled substance than anything else. But normally, there's a fair amount in for DWI."

Les Schultz, head of the Brown County Probation Department, said he's concerned about the effects the new law could have on the county's probation system. He said he's particularly concerned about how the new law could affect Brown County's intensive supervision program, since felony probation is handled strictly by the state.

"We've only had four offenders repeat," Schultz said. "It's the best success rate in the state."

Schultz echoed Melick when he said that DWI cases represent the bulk of the Probation Department's caseload. He said he has seen DWI cases from people as young as 19 years old and as old as 89. He said he gets a lot of repeat offenders that have three DWI convictions, but few that have four convictions.