Smashed: The toll of driving drunk in Minnesota

DWI drivers who kill can get off easy

In nearly 60 percent of cases calling for four years in prison, drivers serve a year or less in jail.

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Briana Klindworth's father, Keith Klindworth, touched the cross he placed on the site where Briana was killed by a drunk driver in 2004.

Photo: Renee Jones Schneider, Star Tribune

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A first-time felon robbed a St. Paul bank with an apologetic note to a teller and was sentenced to more than three years in federal prison.

The president of a home-building company swindled lenders out of $6 million in a complicated mortgage scam and was sentenced to seven years in state prison.

A Minneapolis mom got drunk and plowed her Audi into a bus shelter, killing a pedestrian. A judge sentenced her to a year in jail, but told her she would have to spend only eight months at the county workhouse.

Those sentences are fairly typical in Minnesota, where drunken drivers who kill someone with their car sometimes get less time behind bars than nonviolent offenders.

Public safety advocates say it's part of a culture of forgiveness surrounding drunken driving, a social problem that killed 893 people on Minnesota roads in the past five years and injured thousands more.

In drunken-driving deaths, state sentencing guidelines call for a four-year prison term for offenders with no criminal history, but nearly 60 percent of those convicted from 2004 through 2008 received no prison time at all, a Star Tribune analysis shows. Usually, the sentences include long probations with various conditions and up to a year in jail. Unlike many states, Minnesota has no minimum sentence for the crime.

Punishment is lightened to exclude prison time more often for criminal vehicular homicide than for all felonies calling for incarceration put together, a state report said.

"Makes me sick," said Sharon Gehrman-Driscoll, of Minnesotans for Safe Driving.

She and others believe the criminal justice system is influenced by the notion that many drunken drivers aren't all that different from their neighbors. Even the victims' families are often willing to go along with a reduced sentence, recognizing that these reckless drivers didn't mean to hurt anyone. In some cases, judges are being asked to punish someone who killed a friend or family member.

Former Hennepin County Judge Isabel Gomez, who also served as executive director of the state's sentencing guidelines commission, said she is troubled by the tendency of Minnesota judges to cut drunken drivers who kill so much slack. "It becomes very hard to justify," she said.

Two DWI crashes, same driver

Terrance Bagan, 78, got drunk and smashed into somebody twice in three years, but he didn't go to prison for either incident, even though he killed someone in the second crash.

In 2001, Bagan spent six hours drinking beer at a casino and then slammed his Mercury Sable into a stopped pickup truck on the outskirts of Hastings, records show. A urine test showed he had a 0.19 percent blood alcohol concentration, nearly twice the legal limit of 0.10 at the time. A truck passenger suffered whiplash.

Under a plea agreement, Bagan, of St. Paul, pleaded guilty to misdemeanor drunken driving. Prosecutors dropped a criminal vehicular operation charge, a gross misdemeanor carrying a maximum sentence of a year in jail and a $3,000 fine. Bagan was put on probation for a year, spent 30 days on electronic home monitoring and was told to get a chemical dependency test.

Although Bagan lost his license for three months, a state worker helped make sure he was able to drive again, according to a county attorney's letter. After failing the written driving test a dozen times, an examiner noticed Bagan was having problems and brought him into a back room, where he emerged a little while later with a passing certificate, his daughter told the court, according to the letter. State officials told the county attorney that examiners can administer oral tests when asked.

Bagan's next victim wasn't as fortunate. On an August evening in 2004, Bagan was coming home drunk again from the casino. College student Briana Klindworth saw his car veer into her lane and tried to get out of his way, but the two vehicles collided in a ditch. Klindworth, a Red Wing native who hoped to study in Greece, died the next day.

Thomas Bagan said he and other family members tried to keep their father off the road after the first accident. But whenever they took his car, he always managed to get it back.

"I tried everything I could possibly think of without basically handcuffing him and putting him in jail myself," Thomas Bagan said. "You always try and second-guess. ... Could we have prevented him from killing that girl?"

Bagan escaped with a light sentence. Under the terms of his plea agreement, he got a year in jail, but served only eight months. He was put on probation for 10 years and permanently surrendered his driver's license.

Klindworth's parents have mixed feelings about the outcome.

"Look how easy he was let off the first time and look how easy he was let off the second time," said Keith Klindworth, her father.

Debra Lawrence, Klindworth's mother, said she and other family members didn't object to the deal because they were exhausted by the legal battle and didn't want to relive the horrific details of the crash. Though Judge Thomas Bibus ultimately ruled that Bagan was competent to stand trial, he agreed with the defense that Bagan's age and possible dementia warranted a reduced sentence.

Families put on the spot

Minnesota's culture of forgiveness starts with first offenders. In 81,000 DWI cases from 2002 through 2009, just 900 first-time offenders received the maximum sentence of 90 days, according to a Star Tribune analysis of state sentencing data. The average sentence was a year of probation.

Repeat offenders are also treated lightly, even if they have been convicted of four DWIs in 10 years, a felony that comes with a recommended prison sentence of three years. If offenders have little criminal history, the guidelines say they can be put on probation instead.

Of 1,381 felony DWI cases in which the guidelines recommended prison sentences, however, judges were still lenient, reducing or suspending prison time in 468 cases, records show.

If a drunken driver kills someone and is convicted of criminal vehicular homicide, the maximum prison sentence under state law is 10 years. There is no minimum sentence in Minnesota, unlike at least 20 other states that demand incarceration for certain types of deadly drunken driving offenses, according to the National Conference of State Legislatures.

Sen. Steve Murphy, DFL-Red Wing, introduced a bill in 2008 to impose a minimum five-year sentence for criminal vehicular homicide, but it didn't get a hearing.

"People want drunk drivers -- especially if they kill somebody -- they want them locked up and I agree with them," Murphy said.

Judges cite an offender's fitness for probation and potential for rehabilitation as the No. 1 reason for reducing sentences for people convicted of criminal vehicular homicide while impaired. Other major factors include a driver's show of remorse or willingness to get treatment for alcoholism.

Judges often cite the support of a victim's family for a reduced sentence. That troubles some jurists. Donovan Frank, a former state judge who now sits on the federal bench, noted that victims aren't typically consulted in bank robberies and other crimes.

"There has to be a balance here where the opinion of a victim's family should be respected but shouldn't be the only factor the court and prosecutor considers," Frank said. "If it is, that's a lot of pressure and responsibility to put on a family when we also have to serve the punishment interest along with the rehabilitation interest."

'A slap on the hand'

Joshua Sims didn't know what he wanted after a drunken driver killed his 31-year-old wife, Treasure.

The two were heading home on their motorcycle after an evening ride. As Sims slowed for a turn, he felt a hard blow on his back -- like someone had hit him with a baseball bat, he said. He awoke on the asphalt, struggling to breathe from injuries including cracked ribs, a broken leg and a fractured skull. Ethan Randall, an acquaintance of Sims, knelt over him, crying, "I'm sorry. I'm so sorry."

"Go get Treasure," Sims remembers telling Randall. "Don't worry about me."

Sims heard someone scream: "She's dead!"

Randall, then 34, had a blood alcohol concentration of 0.18 percent, more than twice the legal limit of 0.08, records show. Randall had a drunken-driving offense on his record from 1995. He pleaded guilty to two felonies: criminal vehicular homicide and injury. Prosecutors asked for four years in prison.

At the time, Sims said, he was indecisive. He knew Randall didn't mean to hurt his wife and would have to live with the guilt of killing her. But a year didn't seem like enough. "How am I supposed to know? ... I'm not the jury. I can't say, 'Yep, I'm going to be satisfied,' because I'm never going to be satisfied."

Anoka County Judge Michael Roith sentenced Randall to one year in jail and 10 years of probation.

"It doesn't make a lot of sense why some people get off with a slap on the hand,'' Sims said. "That's kind of what I think he got, really."

10 years of probation

Just a few seconds before crashing into John (Jay) Schafer's car on Hiawatha Avenue last year, Michael Tabor was flying along at 108 miles per hour, records show. Schafer's car, which was waiting at a stoplight, careered into the intersection and burst into flames. Schafer died on the scene from multiple injuries.

Tabor spent part of the night drinking at a bar, but his attorney said in court filings that Tabor's memories are sketchy after going to his parents' house, where he took some prescription sleep medicine. He said Tabor also did some cocaine that evening. Tabor's blood alcohol concentration was 0.119, well above the legal limit, records show.

Judge Mark Wernick ordered Tabor to spend a year in a workhouse and serve 10 years on probation, even though Tabor's probation officer recommended against probation and prosecutors wanted a four-year prison sentence. In court papers, Wernick acknowledged that Tabor's sentence might seem unfair considering the "seriousness of what happened," but he went along with it because the family agreed to the deal, which keeps him under the thumb of the law longer.

"Particularly in a case as tragic as this, the victim's family's desires are important," Wernick wrote.

At Tabor's sentencing, John Schafer, the victim's father, said: "We are not seeking vengeance or retribution. We are concerned that this never happens to anyone else again."

Among other conditions of Tabor's probation, he must obtain chemical dependency treatment, submit to random testing, and refrain from using alcohol or controlled substances until 2019.

"Do I feel that it's totally fair? No," said Karen Meyer, Schafer's mother. "I see some of these [other crime sentences] and I just feel that there is no justice. ... I just don't know what to make of it."

plouwagie@startribune.com • 612-673-7102 howatt@startribune.com • 612-673-7192

'smashed'

Today, the Star Tribune continues its in-depth look at the scourge of drunken driving in Minnesota, the victims it claims and the public safety questions it raises. Every year, hundreds of Minnesotans are killed or severely injured in crashes caused by drunken drivers. Another 35,000 are convicted of DWI. What more can be done to clear our roads of the threat? This series will examine the issue. We invite you to join the debate at startribune.com/smashed

  • about this series

  • In Minnesota, drunken drivers who kill someone with their car sometimes get less time behind bars than nonviolent offenders. Public safety advocates say it's part of a culture of forgiveness surrounding drunken driving, a social problem that killed 893 people on Minnesota roads in the past five years. Read the Star Tribune's in-depth look at the scourge of drunken driving, the victims it claims and the public safety questions it raises.
  • related content

  • THE SERIES SO FAR

    Wednesday March 24, 2010

    • Jan. 17: The DeZurik family was scarred when young Ryan was killed by a drunken driver.

  • Senior photo of Briana Klindworth

  • 106

    DWI arrests per day in Minnesota. That was the average from 2006 through 2008, when a total of 116,515 DWI arrests were made.

    1 in 8

    Adult Minnesota drivers who have a DWI on their record through 2008.

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