NY man on quest to change SD's DUI laws
MITCHELL, S.D. -- Only months after the Legislature and Gov. Dennis Daugaard got "smart" on crime, a New York man wants them to get tough.
Gregg Spindler and his wife, Susan, are professional statisticians in Cazenovia, N.Y. Their daughter and her co-worker were killed in July by a drunken driver as the two of them walked across a hotel parking lot in Pickstown.
Since then, the Spindlers have presented what they call evidence-based and data-driven recommendations to Gov. Daugaard for reform of driving-under-the-influence laws. Gregg Spindler also hopes to partner with legislators and activists in the state.
He admits that if his daughter had not been killed by a drunken driver, he would not be advocating stricter laws. But now the issue is "close to home."
"In South Dakota, my daughter's blood is in that parking lot," he said. "We have a blood-tie to the state."
Spindler's get-tough message runs counter to a South Dakota criminal justice overhaul completed just six months ago.
"This is not about being hard or soft on crime," Daugaard said while introducing the legislation. "This is about being smart on crime."
In March, Senate Bill 70 became law and lessened penalties for nonviolent offenders, allowing more of them to serve their sentences within their communities rather than in prison. The reform effort includes the continuation of programs like 24/7 Sobriety, which monitors alcohol-addicted offenders through regular breathalyzer tests, usually twice a day. A new focus is drug courts, which can include DUI offenders. A circuit court judge can order that a person convicted of a drug or alcohol offense serve an intensive probation period through drug court, rather than jail or prison time.
The reform legislation, Senate Bill 70, did little to change DUI laws, except to classify sixth-offense DUI as aggravated, which makes it a violent offense, and to make fourth-offense DUI a higher felony class.
The Spindlers' daughter, Maegan Spindler, 25, was killed July 8 along with Dr. Robert Klumb, 46, of Pierre, when a vehicle driven by Ronald Fischer Jr. struck them in a hotel parking lot in Pickstown. In his letter to the governor, Spindler said Fischer was allegedly driving 60 mph.
Fischer, 29, of Lake Andes, is charged with two counts of vehicular homicide, each of which carries a maximum of 15 years in prison, a $30,000 fine or both, and two counts of manslaughter in the first degree, each of which carries a maximum life sentence, a $50,000 fine or both. He is also charged with first-offense drunken driving, which is a misdemeanor in South Dakota and carries a maximum of one year in jail and a $2,000 fine.
A blood sample after the crash indicated Fischer's blood alcohol content was 0.232, nearly three times the South Dakota legal limit for driving, which is 0.08. He is being held on a $200,000 cash bond in the Charles Mix County Jail.
Although Spindler believes the South Dakota Legislature strengthened DUI laws for certain cases through Senate Bill 70, he thinks stiffer penalties for first-time drunken driving offenders are necessary to prevent more tragedies like the deaths of his daughter and Klumb.
He said first- and second-offense DUI should be felonies in South Dakota -- currently, only third and subsequent DUIs within 10 years are felonies. He also thinks license revocation rules should be better enforced and mandatory jail time should be imposed on a first offense.
Spindler cited a statistic from the National Transportation Safety Board report "Reaching Zero: Actions to Reduce Alcohol-Impaired Driving," which says 7 percent of all fatal DUI-crashes are caused by multiple offenders. From that, he deduces that 93 percent of all DUI fatalities are apparently caused by first-offense drunken drivers.
"Ronald Fischer was a first-time offender," Spindler wrote in his proposal to the governor. "If the vast majority of deaths and injuries are caused by first-time offenders, it seems logical that the majority of enforcement efforts and resources be aimed at deterrence of the first offense and not primarily focused on recidivism."
He wants first-offense drunken drivers to serve at least some jail time and automatically lose their license for 180 days.
Daugaard declined to comment for this story. An aide said officials are listening to Gregg Spindler.
"If the data shows that there are better ways to stop that crime, I would anticipate legislators would certainly listen to that," said Jim Seward, general counsel for Daugaard.
But there are conflicts between Spindler's approach and the one recently adopted by Daugaard and legislators.
Spindler, for example, is calling for mandatory county jail time for first-time DUI offenders and state prison time for second and subsequent offenses.
"Even first offenders should hear the iron jail doors slam behind them, eat jail food and sleep in a cell for at least a few nights," Spindler wrote.
Conversely, one aim of Senate Bill 70 was to reduce incarceration rates and prevent the prison overcrowding or new prison construction that Daugaard said was imminent without reform.
The criminal justice legislation included a section on DUI laws, but only focused on more serious penalties for fourth and sixth offenses.
In Fischer's case, Senate Bill 70 changes do not apply -- he is an alleged first-time DUI offender and the manslaughter charges against him, should he be convicted, would make him a violent offender and ineligible for the rehabilitative approaches implemented by the new law.
However, if he were only charged with vehicular homicide, by South Dakota law, he would be considered a nonviolent offender, which would make him eligible for non-prison options like drug court and monitoring programs.
Seward said the changes instituted by Senate Bill 70 "require fairly long-term analysis to see if they change behavior."
"These changes weren't based on tragedies. They were based on evidence that while we continued to lock up more people, our crime rate in DUI and drugs continued to rise," he said. "The evidence did not show the work group that we were changing behavior as well as other states that had already attempted these reforms."
Spindler said his suggestions, while inspired by the tragedy of his daughter's death, are driven by data rather than emotion.
"All this stuff is common sense. We have a country supposedly with an advanced economy, but when I read the NTSB report, we're laggards in reducing DUI death. Susan and I feel nobody should get these calls, including the family of the drunk."
Current South Dakota DUI laws show first- and second-offense DUI convictions are misdemeanors with maximum sentences of 30 days in jail and a $500 fine, and one year in jail and a $2,000 fine, respectively. Subsequent offenses within 10 years are felonies.
Third-offense DUI carries a maximum penalty of two years in prison, a $4,000 fine or both. Fourth-offense DUI, under new laws from SB 70, carries a maximum penalty of five years in prison, a $10,000 fine or both. Fifth-offense DUI carries a maximum penalty of 10 years in prison, a $20,000 fine or both.
Sixth-offense DUI carries the same maximum penalties as fifth-offense DUI, but under SB 70 changes, sixth-offense DUI is considered an aggravated offense, which makes it a violent crime and takes away non-prison rehabilitation options.
Spindler suggests a permanent excise tax of 10 percent on the wholesale cost of alcoholic beverages to fund the implementation of high visibility DUI enforcement. He said if the Legislature doesn't dedicate a permanent funding source for DUI enforcement, it will invite cuts later when another recession hits. When South Dakota has reached top 10 percent performance in DUI crash, injury and death rates compared to other U.S. states, then a portion of the tax revenue should be re-dedicated to drug and alcohol treatment, Spindler proposes.
The tax, he hopes, would finance frequent and unannounced sobriety checkpoints to ensure fewer drunken drivers would be on the road. The state would disburse money to law enforcement based on DUI incidence and risk.
"Sobriety checkpoints are the single most effective method for making enforcement of DUI laws highly visible," Spindler wrote in his proposal. "The number and frequency of such checkpoints would be established using DUI incidence measures calculated on a regional basis."
He suggests Highway Patrol troopers be the main resource for checkpoints, but emphasizes local law enforcement also be involved.
Spindler said he understands the possibility that a new tax may not be popular. He proposes that some other unpopular tax be repealed to compensate.
To accurately depict to the public the amount of DUIs occurring, Spindler suggests a proactive measurement system. Currently, South Dakota measures DUI incidence through deaths, injuries, crashes and arrests.
Truth in numbers?
Spindler hopes to provide evidence that drunken driving happens more often than when someone is arrested, gets in an accident, or injures or kills someone. According to the NTSB report, one DUI arrestee might drive drunk approximately 80 times before getting arrested, Spindler said.
According to state-issued Crime in South Dakota reports, there were 37 DUI arrests in Charles Mix County last year, 45 in 2011, 33 in 2010, 36 in 2009 and 35 in 2008. The county has an estimated 9,312 residents. Other similarly populated counties in South Dakota have a wide range of DUI arrest numbers.
Butte County, with an estimated population of 10,374, reported seven DUI arrests in 2012 and 2011, 11 arrests in 2010, and one DUI arrest each in 2009 and 2008.
Custer County has an estimated population of 8,432 and reported 60 DUI arrests in 2012 and 2009, 62 arrests in 2011 and 2010, and 35 DUI arrests in 2008.
Roberts County has an estimated population of 10,402 and reported 45 DUI arrests in 2012, 69 in 2011, 74 in 2010, 82 in 2009 and 73 in 2008.
Turner County has an estimated population of 8,426 and reported 21 DUI arrests in 2012, 43 in 2011, 30 in 2010, 49 in 2009 and 37 in 2008.
Currently, businesses that provide visibly intoxicated people with more alcohol are protected by South Dakota law from liability. Spindler said it is irresponsible to sell alcohol to already intoxicated people and suggested the state implement "dram shop" laws to hold servers or sellers of alcohol responsible if an impaired person causes harm to another.
Spindler hopes to see South Dakota implement a legal driving limit of 0.05 blood-alcohol content, which is recommended in the NTSB report. The current driving limit in the state is 0.08. He also wants a lower BAC threshold for young drivers and repeat DUI offenders.
Spindler also suggests the following penalties for DUI offenders:
-- Immediate, mandatory roadside vehicle impoundment, regardless of who owns the vehicle, for a minimum of seven days. To accompany that, he proposes asset forfeiture as a penalty for DUI, which the state already uses in drug crimes. "The primary purpose for asset forfeiture is for punishment of DUI and not to generate revenue," he wrote.
-- Immediate license suspension if a person is arrested for DUI. Further, upon conviction, first-time offenders should lose their license for no less than 180 days and second-time offenders should lose their license for no less than three years.
-- Permanent license revocation for third-offense DUI, DUI above 0.10 BAC or any DUI incident resulting in injury or death.
-- An aggravated category for drunken drivers whose blood alcohol content is above 0.10 and for all multiple offenses. The charge would be a felony and involve asset forfeiture and jail time.
-- Mandatory jail time for a first-offense DUI, and required state prison time for second and subsequent-offense DUIs.
Spindler also hopes the governor and lawmakers are aware that Fischer was not arrested until 15 days after Maegan Spindler was killed. He wants the state to implement policies to prevent both the lag in arresting offenders like Fischer, an American Indian who allegedly fled to tribal lands prior to arrest, and the lag in getting test results from the crime scene.
"In the event of injury or death from DUI incidents, the state should insure that suspects are never allowed to either leave the scene of a DUI incident or a hospital without being arrested, as was the case of Ron Fischer," he wrote.
He added in his report that the state testing facility should be required to provide BAC results within 24 hours of receipt.
Governor's office response
Spindler first wrote to Gov. Daugaard on Aug. 9 to introduce his ideas for some change in the DUI laws in South Dakota.
Daugaard wrote a letter back to Spindler Aug. 26, "offering his condolences and his thoughts on approaching DUI reform in South Dakota," Spindler wrote in an email to The Daily Republic of Mitchell.
"He said the executive branch will take a 'data-driven, evidence-based' approach to review DUI policies and laws," Spindler said. "We are very encouraged by his letter."
Tony Venhuizen, director of policy and communications for the governor, said in an email to The Daily Republic that Daugaard has requested that the Department of Public Safety review Spindler's suggestions.
After the department gives its feedback, Daugaard plans to invite Spindler to visit South Dakota to sit down with state officials and discuss ideas.
"This is a very sad situation, and out of respect, the governor does not feel that he should discuss them with the media until DPS has the opportunity to weigh in, and until the discussions with Mr. Spindler can occur," Venhuizen wrote.
Spindler said he hopes to visit with the governor in October or November, and he hopes his work results in leading-edge reforms that will inspire other states to act.
"Hopefully, we can move the ball down the field," he said.