DWI law results mixed

James Lee Gullard killed four people in a drunken driving accident in the 1970s.

The Lake Park, Minn., man has 23 DWI-related convictions and two cases still pending in Oregon and Washington.

But despite Minnesota's tougher, year-old DWI law, Gullard's jail time could be limited to eight months for his latest conviction -- the same as under the old law.

Legislators targeted chronic drunken drivers like Gullard, 52, when they passed a law that made four or more DWI convictions a felony offense, punishable by prison time.

But just before the law's August anniversary, some lawyers, judges and legislators remain unsure it's the answer to a problem that caused 239 deaths last year in Minnesota.

"The chronic offenders seem to need a strong message sent to them," said Clay County Public Defender Joe Parise. "I don't know if this is going to be the answer or not. Time is going to tell how many of these folks turn the corner."

The purpose of the law is to provide a strong incentive for repeat DWI offenders to stop drinking, said Rep. Doug Fuller, R-Bemidji, a co-author of the felony DWI law.

"This law provides authorities and the court system another tool to deal with chronic drunk drivers," Fuller said. "It's a bigger hammer."

Before the felony DWI law was enacted, drunken driving was always a misdemeanor or gross misdemeanor, punishable by no more than a year in a county jail and a fine, no matter how many times the person re-offended.

The new law states a person convicted of a fourth DWI in 10 years could receive a sentence up to one year in the county jail and then be placed on seven years of intense supervised probation.

Offenders who violate their probation could serve up to 36 months in prison, said 7th Judicial District Judge Michael Kirk.

"The first-time felony DWI offender is not likely to go to prison the way the law is set up," Kirk said. "But now we have up to seven years to follow up on their behavior."

An exception is if the offender has a criminal record. Depending on the severity of the crimes and how long ago they occurred, sentencing guidelines allow the DWI offender to be sentenced to prison time on the fourth offense.

On the other hand, it's possible for some DWI offenders, like Gullard, to have more than four DWIs in 10 years without ever seeing prison time.

Gullard has six DWI convictions in 10 years. However, the January infraction was his first DWI conviction since the new law took affect. Because of that, and because his criminal history was less than what was needed for him to be automatically sent to state prison, he received probation.

Gullard, who was sentenced by Kirk to serve time in the county jail as part of his lengthy probationary conditions, would have needed eight DWI convictions in 10 years to qualify for an automatic prison sentence.

In North Dakota, it takes five or more DWI-related convictions in seven years before offenders are charged with a felony punishable by up to five years in jail or a $5,000 fine.

North Dakota also gives judges more flexibility in sentencing repeat DWI offenders.

"(Minnesota) sentencing guidelines limit a judge's discretion, and a judge is expected to sentence according to the guidelines," Kirk said.

Kirk couldn't talk specifically about the Gullard case, but in a memorandum accompanying his sentencing order he said there was nothing about the January arrest that warranted a departure from sentencing guidelines.

"The underlying offense did not involve personal injury or property damage," he wrote. "There is no allegation of dangerous driving behavior. The defendant was found by the officer to be asleep in his parked vehicle."

Price to pay

Minnesota legislators wanted to implement tougher DWI laws, but they didn't want every offender going to jail, Kirk said.

"They don't have the space or money for it," Kirk said.

As it is, the new law is already expected to tax Minnesota's stressed prison system.

There are currently 71 felony DWI offenders in state prisons, said Greg Potvin, supervisor for the Minnesota Department of Correction's Moorhead district.

And that number will only increase.

"My guess is it is going to be spendy before it is all done," Potvin said.

Prisons in St. Cloud and Stillwater are preparing to start double bunking.

Officials are also planning to expand the Faribault prison.

The felony DWI law has played a role in those plans.

"I think it was all part of the mix," Potvin said. "I think they knew the DWI laws were going to add to it."

Becker County Sheriff Tim Gordon said the law is working. He's seeing more designated drivers and hearing about people's fear of getting caught for a felony-level drunken-driving charge.

"Does the new law deter?" he said. "I think so. There are people who have one or two (DWIs), and they are deathly afraid to get their third."

Habitual offenders, he said, aren't driving drunk because they want to break the law. Chronic drunken drivers have a disease, one that family and friends often deny or don't understand.

A plus of the new law is that it calls for supervised probation, which can provide the offender the structure needed to overcome the illness, said Assistant Clay County Attorney Stephanie Borgen.

Previously, offenders were sentenced to unsupervised probation.

"And having that prison sentence gives them a lot more incentive to turn their life around," she said.

However, Borgen also said there are problems with the way the law is written.

"We need to work out the kinks," she said. "We're still missing things."

She's frustrated the law allows a judge to consider only 10 years' worth of drunken-driving history.

"We had a case where someone got their fourth DWI and went to prison for 62 months because of their criminal history," she said. "And then there is someone like James Gullard who has more than 20 DWIs and doesn't go to prison."

Fuller agrees more time is needed to assess the full impact of the law.

"Not enough time has passed," he said. "But it is better than what we had."

Readers can reach Forum reporter Jeff Baird at (701) 241-5535