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Updated: Tuesday, 26 Jun 2012, 2:29 PM EDT
Published : Monday, 21 May 2012, 4:50 PM EDT
VIRGINIA BEACH, Va. (WAVY) - Are drunk drivers in Virginia Beach getting off the hook easy?
The Commonwealth's Attorney for Virginia Beach Harvey Bryant says certain judges hand out little to no jail time for DUI and DWI convictions. He worries it's causing a cycle of repeat offenders on the city's roadways and he's not the only one noticing the trend.
Every year, Virginia Beach charges more people with DUI than any other locality in the state. In 2011, 20 percent of those were repeat offenders.
Kaye Walsh says one of them killed her only child.
"I woke up at 3:45 that morning and looked out in the driveway to see if her car was there, and it wasn't," said Walsh. "I said, 'Oh, dear,' because she would always let us know if she wasn't going to come home."
Walsh's daughter, Robin, died on January 25, 1997. She was 34-years-old. The man behind the wheel was charged with his third DUI.
Since the accident, Walsh has become the most active member of the local group Mothers Against Drunk Driving . She made it her mission to get justice for Robin and other victims.
A judge sentenced Robin's killer to eight years in prison, with four years suspended.
"I was jubilant. We were told no one in Virginia Beach was ever given such a stiff sentence," said Walsh.
Bryant agrees the case is not typical. The state has mandatory minimum and maximum requirements for sentencing .
Generally speaking, a first DUI conviction has a minimum penalty of five days in jail and a maximum penalty of one year. On a second offense, the minimum is 20 days and the maximum is one year. A third is considered a felony. The minimum sentence is sixth months. The maximum is five years.
But judges can suspend some, if not all, of that time and court records show they do. Bryant says it happens the most in Circuit Court, where drunk drivers appeal a lower court's decision.
"There are certain judges who are known to be a little more sympathetic," said Bryant. He says defense attorneys continue cases to get the judges they want.
"We say 'Oh, I don't know how well this is going to go today,'" said Bryant. "And the defense attorneys are thinking 'Okay, I'm ready to try the case today!"
Kelli Evans says she had three sympathetic judges.
"I received my first DUI in 2000, my second was in 2002, and my third was in 2003," Evans told WAVY.com.
But, for the first three, Evans did not spend one day behind bars. It was only on her fourth conviction that she finally received jail time. Evans was sentenced to one year and four months. She used the time to treat her alcoholism and teach children about the dangers of drunk driving .
"I feel as if I had received a good amount of time for my first or second, I may not be in this position today," said Evans.
Walsh sees the same thing in data from MADD's court monitoring program and she has help. Police officers contact her about cases they say received weak rulings.
"In both cases, the defendants were given a break when they had very high [blood alcohol contents]," said Walsh, referring to one email from a police officer.
Both depositions were deferred for sixth months. If no new violations occurred, the DUI charges would be reduced to reckless driving.
Walsh showed WAVY.com the same thing happened in a different case. The driver had a blood alcohol level of 0.27, more than three times the legal limit, but the judge took the case under advisement. If the driver maintained a clean record for one year, the charge would be reduced to reckless driving.
"That gave the green light to this guy to go ahead and do it again," said Walsh.
Walsh has reported judges to the Judicial Inquiry Review Commission. In response, she was told rulings are left to the judges' discretion, unless ethics are violated.
10 On Your Side wanted to see if court paperwork backs up her claims and searched a sample size of 42 concluded DUI cases.
Of them, 32 were charged as first time offenders. Of those 32, eight received jail time. The rest only had to pay a fine, most of them just $250.
The second time offenders who went to jail served sentences ranging from 20 days to three months, when the maximum is one year. For one reason or another, one of those repeat offenders had the case dropped altogether.
10 On Your Side requested an interview with each Circuit Court judge asking if they see the trend. We received this response from a paralegal.
"I have been asked to inform you that this court's policy is that the judges do not give interviews."
As for Walsh, she hopes her story will inspire others to report questionable rulings. After all, she is only one person, one set of eyes. She wonders if anyone else is watching.
"I do this to try to keep another family from going through what Bob and I have been through," said Walsh. "We need some assistance from those judges."
You may notice 10 On Your Side did not name the judges Walsh and Bryant suspect. That's because comparing judges side by side proved to be difficult.
The court's database is
not designed to search by judge, meaning if you wanted to check a judge's record, you would have to go to Circuit Court and view each DUI file individually to see how a certain judge rules.
At the same time, Bryant does not expect judges to give the maximum sentence. He says the jail is not equipped to hold 2,500 extra prisoners every year.
A new state law, effective July 1, will help stop convicted offenders from driving drunk again.
The law requires first time offenders to install an ignition interlock device in their vehicles. If a driver's blood alcohol content is higher than .02, the car won't start. Keep in mind, that's well below the legal limit.
"Virginia is going to join 13 other states, as of July 1, in which anybody convicted of a first offense is going to have to have this ignition interlock," said Bryant. "Your car gives you a breath test, and if you fail, your car won't start. It's beautiful."
The device will remain in the vehicle during the six-month restricted license period that follows a first DUI conviction. The person convicted of DUI will foot the bill.
The device also conducts 'rolling retests,' meaning it will test the driver at random while the car is moving. If the driver fails the test, the horn will go off and the headlights will flash to get the attention of police.
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