Probation sentence for seven-time DUI offender highlights prosecutors’ frustration over recent law change
February 22, 2017
Last July, 37-year-old Ashby Capito was driving on Highway 24 in Leadville when her car careened off the road and slid more than 400 feet, destroying the fence of a church and crashing into the side of a mobile home.
Police estimated Capito had been driving at around 55 miles per hour in a 35 mph zone. She was intoxicated on Adderall and had a blood alcohol content of 0.20, more than two times the legal limit.
It was her seventh DUI since 1997, prosecutors said, and they sought a seven-year prison sentence. Instead, she was sentenced on Monday to four years of probation. Capito will spend 60 days in jail, although she will be allowed to leave during the day to go to work. She must also complete a treatment program through the Eagle County Drug Court.
The sentence underscores a growing frustration among some Colorado prosecutors, who say a 2015 change to DUI laws has hamstrung their efforts to get tougher punishments for repeat offenders.
“We’re frustrated by the lack of consequences for repeat drunk drivers. I’m concerned for my family and my community because we share the roads with the people we’ve repeatedly prosecuted.”Jeff CheneyDistrict Attorney for Colorado’s 9th Judicial District
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In some cases, the law has allowed judges to give defendants with multiple felony DUI convictions lighter sentences than those with only misdemeanor convictions.
"The reality is some people are getting more for misdemeanor DUIs than for felonies, and that seems counterintuitive to me," said Jeff Cheney, District Attorney for Colorado's 9th Judicial District. "I think there's a fundamental inconsistency with DUI sentencing that is counterproductive to what the felony DUI law was intended to address."
In August 2015, the Colorado Legislature passed a bill to join the 45 other states that charge DUIs after a third offense as felonies rather than misdemeanors. To overcome objections that the law was too punitive, its sponsors did away with mandatory minimums, giving judges wide discretion for sentences.
The law was intended to toughen up on repeat offenders. Instead, it has allowed some serial DUI offenders to receive lighter sentences than those convicted of a third misdemeanor, who face a mandatory 60 days in jail.
"This is one of the things that was known at the time the bill was passed, but the hope or expectation was that judges would exercise their discretion to avoid it," District Attorney Bruce Brown said.
That hasn't always happened. A Denver Post analysis last September found that of the 316 felony DUI offenders sentenced since the law's passage, 25 cases resulted in probation or community service — but no prison time.
"We're frustrated by the lack of consequences for repeat drunk drivers," Cheney said. "I'm concerned for my family and my community because we share the roads with the people we've repeatedly prosecuted."
Cheney's district includes Garfield, Rio Blanco and Pitkin counties. Last month, a woman in Aspen was sentenced to probation after pleading guilty to her sixth DUI. She was ordered to serve 90 days in jail, although like Capito, she was given work release.
Prosecutors had sought a two-year prison sentence, the Aspen Times reported, but a judge sided with the defense, which argued prison wouldn't help the woman with her alcohol addiction.
A probation officer argued that the defendant, Karen Sahr, hadn't had the opportunity to go through the court's rehabilitation program.
"For prosecutors, it's frustrating because we believe priors are evidence that rehabilitation per se has failed," Cheney said. "The law says you can't extrapolate from history, but with six or seven priors you can infer that rehabilitation was tried — and failed."
Unlike Sahr, Capito had completed multiple treatment programs, including one that was court-based, Brown said.
Those types of rehabilitation programs can work, but there is a point when serial re-offending is dangerous to the public and requires incarceration, Brown said. In his view, seven convictions meets that threshold.
"We look at rehab and whether or not the options have reasonably been exhausted. If they have, public safety demands taking someone out of the community," he said. "The vehicle impacted a house where a family was living. How much more dramatic a risk can you get?"
Considering the degree of latitude judges are given under the law, sentences can vary widely. An Arapahoe County judge sentenced one man to probation after he pleaded guilty to his sixth DUI, but another six-time offender in Douglas County was given 12 years in prison, the Post reported.
Lawmakers are discussing changes to the law that would impose mandatory sentences for felony DUIs that are harsher than the current minimum for some misdemeanors, although a bill hasn't been introduced yet.
Supporters of the 2015 law have argued against mandatory minimums, saying they prevent judges from considering the individual circumstances of each case. Mandatory sentences could also prevent people from getting treatment, and prison doesn't help people recover from addiction, they say.
In an email, a spokesman for Denver District Attorney Beth McCann, who supported the felony DUI bill as a state representative, said the law seems to be working.
"Nothing in the law prevents a judge from imposing a prison sentence (which would be served in a DOC facility, not a local jail)," he wrote. "In Denver, for example, a man was sentenced in January to 5 years in DOC for a felony DUI conviction following Denver's first DUI felony trial."
He said that McCann's office could not speak to how the law was being implemented in other parts of the state.
The spokesman also pointed to the success of Denver's RESTART program, which allows repeat offenders to avoid prison time through a three-year, supervised probation and treatment program.
Both Brown and Cheney said that while they consider rehabilitation as an option for breaking the cycle of DUI offenses, a long list of priors in extreme cases suggests the need for a different approach.
"We're interested in helping people that have a genuine desire to rehabilitate, but it's hard for me to believe that someone who has repeatedly offended has an earnest desire to rehabilitate," Cheney said. "There has to be an alternative."
While some rural jurisdictions have court-structured treatment programs, like the drug court in Eagle County, not all of them have the same resources that Denver has, Cheney said.
"It does seem to create a circumstance where it's an all-or-nothing scenario for rural areas."
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