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Lower BAC limits making difference

By Dolly A. Butz
Journal staff writer | Posted: Sunday, September 14, 2008
story_photo

Jamie Hayworth teaches an OWI class at WIT. (Staff photo by Jim Lee)

SIOUX CITY -- He was driving the wrong way in a construction zone when he saw the flashing red and blue lights in his rear-view mirror.

Bunthoeun Kim, of Sioux City, said he had been drinking earlier at a local bar and thought he could drive himself home.

"It didn't cross my mind," he said. "I was impaired. That's why I jumped in the car. If I was sober, I would think twice."

Kim, who spoke about his first operating-while-intoxicated offense while taking the state-required drink or driver improvement class at Western Iowa Tech Community College, said he thinks the legal limit should be increased back to 0.1 percent. He said his blood alcohol concentration, or BAC, was 0.12 percent when he was arrested.

Sue Grove, whose husband Maynard Grove was struck and killed by a drunken driver as he walked along Interstate 129 in 2000, disagrees.

"I think it's a really good idea," she said of the current 0.08 percent limit. "I think people watch their consumption a lot more than they normally would. I think it makes people more aware of what they are doing and make better choices."

All 50 states, the District of Columbia and Puerto Rico have made it illegal to drive with a BAC of 0.08 percent or higher, according to the National Highway Traffic Safety Administration. Iowa lowered its legal BAC limit from 0.1 percent to 0.08 percent in July 2003. Since then, drunken driving filings have decreased in the Third Judicial District.

According to the 2007 Third Judicial District Annual Report, there were 2,223 OWI filings in 2007, down from 2,903 in 2002.

The third Judicial District consists of Woodbury, Plymouth, Sioux, Lyon, Clay, Cherokee, Crawford, Dickinson, Emmet, Ida, Monona, O'Brien, Osceola, Kossuth and Palo Alto counties.

An estimated 20,000 Iowans are arrested for OWI each year, according to the Governor's Traffic Safety Bureau.

The number of OWI arrests made by Woodbury County sheriff's deputies has decreased over the years, from 98 in 2002 to 59 in 2007.

Woodbury County Sgt. Jim Bauerly said he thinks officers' strict enforcement of the law, not the lower legal BAC limit, is making an impact on OWI arrests. He said very few drunken drivers have BACs between 0.08 percent and 0.1 percent.

"I think just the strict enforcement of OWI deters them," he said. "I don't know that the level, the .08 or the .10, deters them any."

Sioux City police made 532 OWI arrests in 2002. Arrest numbers then began to climb, peaking at 657 in 2005 before leveling.

Sgt. Bill Melville, who supervises the city's Alcohol Safety Action Program Unit, or ASAP, said manpower fluctuations within the ASAP Unit during that time period may have influenced the number of arrests made.

"There's four guys in this unit making 700 arrests a year, take one out and your numbers are going to plummet," he said. "Those things are so time intensive, you can only do so many per shift per officer."

ASAP officers are called in to detect and process drunken drivers, freeing patrol officers to respond to emergency calls. The majority of people the unit arrests for OWI have BACs in the 0.12 percent to 0.16 percent range, according to Melville.

"A lot of our arrests are not people that are just over the limit," he said. "They are well over the limit. And they're well over the old limit."

The number of Iowa alcohol-related traffic fatalities in 2002 through 2006 represents the lowest five years on record, according to the Governor's Traffic Safety Bureau. Twenty-four percent of Iowa's traffic fatalities are alcohol-related.

There were 123 alcohol-related traffic fatalities in Iowa in 2002. After the 0.08 percent limit went into effect, the number of yearly alcohol-related traffic fatalities dropped to 78 in 2004. Since then, numbers have risen. In 2007, 110 people died in alcohol-related crashes in the state.

Even if the 0.08 percent limit fails to deter repeat offenders from driving drunk, Bauerly said it was necessary to prevent accidents often caused by drivers with low BACs.

"The people that are .20s are falling down drunk and obviously drunk and all over the road," Bauerly said. "They usually go in the ditch or people get out of their way. It's the lower limit, the .08s, the .1s that occasionally drift over the center line that are involved in your accidents."

The Iowa Department of Transportation reports that of the 115 drunken drivers involved in fatal crashes in the state in 1999, 27.8 percent had BAC levels between 0.01 and 0.09.

Repeat offenders

From 2001 through 2007, 16 people were arrested three or more times for OWI, according to Sioux City Police Department statistics. Two of those people, William Joseph Michalcewicz and Jose Luis Perez-Rivera, were arrested in Sioux City four times. The other 14 people have been arrested for OWI three times in Sioux City.

Michalcewicz, 65, may have at least six OWI offenses, with four of those occurring in Sioux City in less than two months from Nov. 29, 2003 to Jan. 18, 2004. His first OWI arrest in Sioux City was recorded as his third OWI offense.

After his arrest on Nov. 29. Michalcewicz spent three days, 10 and a half hours in the Woodbury County Jail. He was behind bars for eight and a half hours on Dec. 23, and seven and a half hours on Dec. 30. After his final OWI arrest on Jan. 18, 2004, Michalcewicz was in jail for 199 days.

Perez-Rivera, 27, was arrested for his first OWI offense on July 10, 2003. After his arrest, he remained in the Woodbury County Jail for seven and a half hours. Just four months later, Perez-Rivera recorded two more OWIs. He was arrested on Nov. 15 and 28. He spent one day, nine hours in the Woodbury County Jail after being arrested for his second OWI offense, and 13 days, 20 hours after recording his third offense. On Jan. 9, 2004 Sioux City Police arrested Perez-Rivera for his fourth OWI offense. He served 61 days, 13 and a half hours.

Both Michalcewicz and Perez-Rivera have other alcohol-related violations in addition to OWI offenses. Perez-Rivera has been charged with driving while revoked, no vehicle insurance, driving left of center and reckless driving. Michalcewicz has been charged with open container, no vehicle insurance, driving the wrong way on a one-way and public intoxication.

Sioux City Lt. Marti Reilly said how long an OWI offender spends in jail depends on how high a judge sets their bond and whether they can post it. He said an offender may also be released on their own recognizance if they promise to return to court for hearings.

"They get out right away," he said. "Most of the time they get out in short order."

If a person is racking up multiple OWI offenses in a month, Reilly said it will take some time for those offenses to catch up with them in court. A person who has been arrested for OWI twice cannot be charged as a second-time offender until they have been tried and convicted for their first OWI offense.

A suspended license won't stop repeat offenders from getting behind the wheel either, according to Melville.

"We had people with their license suspended for 20 to 30 years because they've had so many driving and alcohol-related problems, and they're still going to drive," he said. "If they can get to a car, they're going to drive."

Perez-Rivera, who pleaded guilty to the OWI charges, was sentenced to 60 days in jail for his first OWI conviction, but a judge suspended 58 days of that sentence. He spent seven days in jail for his second OWI conviction. He was sentenced to one year in prison for his third OWI conviction, but 358 days of that sentence was suspended. He was sentenced to five years in prison for his fourth offense.

Michalcewicz pleaded guilty to the four OWI charges against him, and was sentenced to five years incarceration for each offense. An offender search of the Iowa Department of Corrections Web site listed the duration of Michalcewicz's sentence as 10 years. The Web site said he was committed to the Iowa Medical and Classification Center in Oakdale on July 5, 2004. His tentative discharge date is Nov. 26, 2008, just over four years from the time he was committed.

Woodbury County District Associate Judge Todd Hensley said a seventh OWI offense is treated no differently than a third offense. OWI third and subsequent offenses all carry the same maximum penalty of five years incarceration.

"They're always a class D felony," he said. "It seems to me that we maybe need to have a higher level of classification of felonies at some point. Whether it be, now you're on your fifth or sixth one, now it's not a class D felony anymore, it's a class C felony."

Most OWI cases are resolved through plea agreements, according to Hensley. He said it can be difficult deciding what to do with people who start accumulating multiple OWI offenses. He said an offender could be ordered to complete an inpatient program that begins in the county jail and continues with supervision when they are released, or they could go to an OWI treatment facility or be sent to a regular prison.

"For me it's the hardest area to sentence, once we get into the felony range," he said. "You've got to protect the community, but at the same time you'd like to get these folks the help they need, so they don't go out and do this again. It scares every one of us to think about somebody getting out of jail and then they go do it again."

Lessons learned

Sue Grove, director of the Tri-State DWI/DUI Victim Impact Panel, said she has seen anywhere from a 25 to 50 percent increase in the number of drunken driving offenders sentenced to appear before the panel, which is composed of family members of people killed by a drunken driver. They hear first-hand how the death has affected the panelists' families, lives and finances.

Grove said most panel attendees are predominately first and second-time offenders. They come from Woodbury County and Dakota County and as far away as Denver and Philadelphia.

"We've had real good luck on not repeating," she said. "Because they meet us face to face, it gives them an idea that there are consequences to their actions."

Amy Bloch, program director of outpatient services at Jackson Recovery Centers in Sioux City, said there are no magic words that can be said to stop someone from drinking and driving, but she said treatment for alcoholism is a process that works.

"(Treatment) doesn't focus necessarily on the drinking and driving part. The driving part is almost a symptom of their addiction," she said. "That's what's brought them to our door, basically, but there are many things typically going on in their life that they're having difficulty with."

After gathering information about the person's life, Bloch said counselors determine whether they would benefit from in patient or out patient treatment. Then she said they work with the patient to develop a recovery program. She said steps might include working with the patient's family, having them change their friends, and helping them cope with stress in a way other than drinking.

"There is tons of research out there that says that most people who enter treatment don't believe they have a problem, don't want to be in treatment, but those people do just as well and are just as successful in staying sober as people who enter treatment that do want it," Bloch said.

Over the eight years Jamie Hayworth has been teaching an OWI class, she said student numbers have remained steady.

The 12-hour class, offered at Western Iowa Tech, averages 12 to 15 people per session. Most are first-time offenders. The majority of students are men in their 20s, according to Hayworth.

They talk about low risk guidelines for alcohol consumption and the four phases of drinking -- stage four is alcoholism.

"They are able to see themselves in one of those phases, and we do a self-assessment that tells them what phase they're in," Hayworth said. "This can be a surprise to a lot of people."

Kim, who missed work and paid a hefty fine because of his OWI arrest, said he has learned his lesson.

"When I've got other people in the car, it's their lives I'm worrying about and other people also," he said.

OWI arrests in Sioux City by year
2001 530
2002 532
2003 534
2004 647
2005 657
2006 603
2007 643
Source: Sioux City Police Department

OWI arrests in Woodbury County by year
2001 86
2002 98
2003 73
2004 66
2005 62
2006 69
2007 59
Source: Woodbury County Sheriff's Office

OWI case filings in the Third Judicial District by year
2002 2903
2003 2670
2004 2668
2005 2660
2006 2466
2007 2223
Source: 2007 Third Judicial District Annual Report

Criminal penalties for OWI
First offense: A serious misdemeanor, punishable by up to one year in jail and a fine of $1,250, or both. The minimum jail time is 48 hours. A judge may waive up to $625 of the fine if the crime did not result in a personal injury or property damage. The offender must also complete a substance abuse evaluation and treatment and a course for drinking drivers.
Second offense: An aggravated misdemeanor, punishable by up to two years in prison. A minimum of seven days in jail must be served. A fine from $1,875 to $6,250 must be paid.
Third or subsequent offense: A class D felony, punishable by imprisonment up to five years, and a fine from $3,125 to $9,375. A minimum of 30 days in jail must be served.
Offense causing the death or serious injury of another person: Class B felony, punishable by up to 25 years in prison. There is no fine, but victim restitution of $150,000 will be ordered. OWI which causes a serious injury to another person is a class D felony, punishable by up to five years in prison. A fine from $750 to $7,500 may be imposed, and victim restitution may be ordered.

* OWI conviction and deferred judgements that occurred anywhere in the United States within the preceding 12 years will count in determining whether the offense charged is a second or third offense.

Deferred judgement, deferred sentences or probation with service of the mandatory minimum period of incarceration may be granted in an OWI case if the defendant:
* Has never been previously convicted or received a deferred judgement for OWI anywhere in the United States.
* At the time of the arrest, agreed to take a chemical test, and had a test result of no higher than .15.
* Did not cause injury to another person by driving while intoxicated.
Source: Iowa Governor's Traffic Safety Bureau

Complete OWI cost breakdown
Vehicle towing & storage fee $57
Driver's license reinstatement fee $20
New driver's license $23
Driver's license civil penalty $200
Car insurance premium increase $900
Interlock device $393
OWI penalty fee $1,250
OWI classes $115
OWI substance abuse evaluation $50
Probation administration fee $300
Attorney fees $2,000
Missed wages $430
Total: $5,738
Source: Iowa Department of Public Safety
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Story Comments

Bottomline wrote on Sep 16, 2008 1:27 PM:

" I got my DUI years ago and decided to grow up since then and so if I have more than 4 beers, I don't drive. It's really that simple. Take a cab, walk or call a friend, but don't give the cops the pleasure of hauling you in. Some of them seem to get off on it a little too much.

Oh, and next time you see an elderly person swerving and damn near taking out half the people on the road... during DAY hours... don't expect the law to do anything about it. Apparently it's OK to drive impaired when you're 80. "

lissa wrote on Sep 14, 2008 10:24 AM:

" Where are the police hiding when the bars close? I haven't seen one in weeks..see I am the non drinking driver for my group of friends and am surprised that no officers are anywhere to be seen. So as someone who is a people watcher I have noticed its not the drinking limit its the no smoking ban people don't want to be out if they can't smoke. so you could say the goverment is getting what they want and hurting business's at the same time. including resturants after the bars close are seeing a drop in customers. "

resident wrote on Sep 14, 2008 9:43 AM:

" Thats almost 6k take a cab for $20 buck or stay close to home & just walk if you cant get a ride with a sober friend which we all know how hard to do at 2am "

DONT CARE wrote on Sep 14, 2008 8:47 AM:

" I LEARNED MY LESSEN AFTER ONE DWI, BUT THE JUDICIAL SYSTEM OUR LAW ENFORCEMENT DON'T CARE ABOUT SAVING LIVES THE GOVERNMENT WANTS THE REVENUE. IF THEY ARE REALLY SERIOUS ABOUT STOPPING DRINKING AND DRIVING DROP THE LEVEL TO 0.00 AND OUTLAW DRINKING ALL TOGETHER, BUT THE GOVERNMENT WANTS BOTH ENDS AND THE MIDDLE. SAME WAY WITH SMOKING DO AWAY WITH THE DRINKING AND SMOKING LOOK AT THE LIVES YOU WOULD SAVE BUT LOOK AT THE REVENUE YOU WOULD LOOSE. "

Ill have a drink to that... wrote on Sep 14, 2008 7:48 AM:

" Just remember, you don' get pulled over for an OWI itself. You get pulled over because you were going too fast, ran a stop light, or swerved. Then, the cop checks to see if you were drinking. In fact, I'm going to my fridge right now to grab a cold one to toast to all these drunks that like to blame everyone but themselves. "

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