South Dakota DUI Clusters Create Loophole

By Topher

In South Dakota, there is a legal loophole in DUI court cases that may be enabling those arrested for DUI to get off the hook for offenses that might otherwise be punishable, according to an article in the Rapid City Journal.

The situations are somewhat exceptional, dealing with those arrested for DUI multiple times within a very short period of time. In these so-called DUI clusters, one case might still be left open and without a conviction entered on the record when another DUI arrest occurs with the same person.

Because of constitutional presumption of an innocence, a person may be facing two charges of a first DUI at the same time, and not have to deal with the escalated consequences of multiple offenses.

Take the case of 53-year-old Barbara Van Ekeren. She was arrested for DUI for the first time on May 1, 2009. She pled guilty, and was given a suspended imposition of sentence that July. Her file remained open, and the conviction did not appear on her record.

She got arrested for DUI again soon after that, in November. She was charged with first offense DUI for that arrest as well. Then, in February, she was arrested again. She was able to plead guilty to second offense DUI for both of these arrests, rather than pleading guilty to third offense DUI.

She served 15 days in jail, as per the judge’s order, for these second offense pleas. The loophole occurred because the DUI arrests were so close together. These clustered DUIs enable some of the worst DUI offenders to avoid felony convictions.

According to the president of the local chapter of Mothers Against Drunk Driving, Lila Doud, Van Ekeren is getting a freebie for one of the DUIs by avoiding the third offense conviction. She has publically voiced her frustration about the law, and told the Rapid City Journal that this sort of freebie DUI situation occurs frequently.

Doud blames the law’s systematic treatment of DUI for their ability to leave with the lesser sentence in the cases.

“When they’re not sentenced on their first one and end up getting the second, they’ve got a freebie,” she said.

According to prosecutors, they are limited by the constitutional presumption of innocence. MADD officials as well as state leaders agree that there should be something done to be tougher on these repeat offenders, but that it’s not a simple fix. The legal system’s methodical nature make change slow to come and difficult to finalize.

Currently causing the loophole is the law that DUI offenses can’t be escalated to the next level until the defendant has pleaded guilty or has been found guilty, the Pennington County State’s Attorney Glenn Brenner said. “But in order to get a third offense, you have to have two prior convictions and in order to get a fourth offense, it’s not good enough to have three prior convictions. You have to have a third offense felony DUI before you can enhance to a fourth offense.”

At the root of the issue is the presumption of innocence. Cases can’t be escalated without a conviction, and these can take months, even while repeat offenders with alcohol addictions pile up DUI arrests.

“We need to get them through the system faster,” said Doud.

South Dakota extensively combats DUI with billboard campaigns and police presence, and Rapid City police chief Steve Allender believes that there are fewer drunk drivers on the road now. “Every day and night, we are looking for the drunk driver,” he said.



South Dakota Woman Sets State Blood Alcohol Content Record

By Topher

A South Dakota woman received a dubious honor in December when she doubled the state’s previous record for blood alcohol content during a recent DUI.

On Dec. 1 of last year, state troopers found Marguerite Engle passed out in the driver’s seat of a stolen van on the side of a highway.

Engle, 45, was found to have a shocking .708 blood-alcohol content percentage, about 25 percent higher than the highest BAC recorded in South Dakota history, according to a reportin the New York Daily News.

“The BAC is almost incomprehensible,” said Meade County State’s Attorney Jesse Sondreal. She said the previous record high for BAC in the state was .56. Drivers found with a BAC over .08 percent can be charged with a DUI in every state.

Somehow, Engle managed to survive with a BAC level that would have been fatal in most instances.

If a person drinks to the point where his or her BAC is .20, just over half of the legal limit for driving, the person could hurt could themselves and not feel any pain. Walking would also be a difficult task.

But if the person continues to drink to the point of reaching a .25 percent BAC, he or she is at a high risk from choking on vomit. Beyond that level lays a legitimate possibility of death by alcohol poisoning.

At a .35 percent BAC, it is as if the same person was given anesthesia for surgery. And if a person can actually reach .40 percent BAC, they are likely to become comatose. That level involves a high risk of respiratory arrest, which can lead to death.

Despite being hospitalized after she was found behind the van’s steering wheel, Engel was found again, less than a week later, asleep behind the wheel of another stolen on a different highway, according to the Daily News.

She was found on a highway near the hospital in Sturgis, South Dakota where she was treated after her record-setting night the previous week. The vehicle was in a ditch beside the road this time, according to the Daily News, and authorities are waiting on another blood test taken.

While Engel was released on bail for her first DUI charge, she missed a court date between her two charges. Once back in court later in December, a judge ordered her to be held in jail without any bail.

She was later charged with two counts of driving under the influence and could also face charges for grand theft auto, according to the Daily News.

Engel’s extreme drunkenness still doesn’t surpass the reigning champion of intense alcohol consumption, and driving. And being found asleep at the wheel.

That distinction still remains in the hands of then 42-year-old Terri Comer who was found unconscious in early 2008 behind the wheel of a running car stuck in a snow bank in rural Oregon.

Comer’s BAC at the time was .72. She was still alive when deputies found her.