The Loophole That Allows No Jail Time for DUI death cases
Under California law, a DUI with an accident, that ends up causing serious, or great bodily injury, to another, is a felony (VC 23153).
As a felony DUI, the great bodily injury allegation can cause felony sentencing between 16 months in State Prison, up to three years in State Prison, assuming no priors and assuming no probation. Serious injury in a DUI, which is different than “great bodily injury” also adds potential additional prison time of up to six years.
In Raleigh North Carolina, District Attorney Ashley Hornsby Welch this week urged members of the N.C. Senate Judiciary Committee to close a legal loophole that, at the expense of victims, sometimes benefits those convicted of drunken driving.
Currently, if a person is driving on a revoked license for impaired driving and kills someone, he or she faces a charge of misdemeanor death by vehicle. The maximum prison sentence allowed is 150 days.
Lawmakers are weighing whether to raise the crime from a misdemeanor to a class F felony, carrying a minimum active term of not less than 12 months in prison.
“That many days — for someone who is not even supposed to be on the road — is an insult,” said Welch, who oversees the 43rd Prosecutorial District, made up of the seven westernmost counties.
California has a similar loophole – when there is a death due to negligent drunken driving, the case is charged as manslaughter. Manslaughter has a maximum penalty of one year in jail, and many people don’t even do time at all.
There is a different tactic when someone has a prior DUI and causes the death of someone. In California, DUI pleas of guilty or no contest include the “DUI Watson Advisement” – a statement that if they (the defendant in the case) drive under the influence in the future, and cause the death of another individual, they will be prosecuted for murder. So far, that advance warning has been upheld in appellate and the CA Supreme Court.
Back to the Georgia case, Kimberly Carnes, 43, suffered mortal injuries in a Feb. 22, 2017, head-on collision in Macon County as she drove from home to work. Scott Marchant, 56, also a Macon County resident, crossed the two-lane center line on N.C. 28 and smashed into Carnes’ car.
Marchant had been drinking. He did not meet the .08 legal impairment standard, however. His blood alcohol content measured .045, well below the legal limit.
“It’s one of the worst things we have had to do, to explain to Kimberly’s mother that he faced only a misdemeanor death by vehicle,” Welch said.
Marchant pleaded guilty to misdemeanor death by vehicle on July 27, 2017, in Macon County District Court in Georgia. The judge imposed 75 days, based on his sentencing level.
Kimberly Carnes’ mother, Karen, provided emotional testimony to committee members, pleading with them to increase the penalty for misdemeanor DUI cases.
“As a misdemeanor, it says, ‘He didn’t intentionally set out to kill somebody.’ You know what? My daughter didn’t want to be intentionally hit and killed,” she said.