Attorneys say tougher penalties won't stop many DWI offenders

High-profile DWI wrecks, such as the one that killed an innocent teenager Sunday night near Dallas, set emotions on fire and inspire pleas for tougher laws against drunken drivers.

But in spite of gradual penalty increases every few years in North Carolina, impaired driving continues to be something that’s largely accepted by society. And local attorneys say changing that line of thinking, rather than just throwing offenders in jail longer, offers the only real potential for solving the problem.

“You cannot prevent it from happening,” said Jim Carpenter, a prominent DWI defense attorney in Gastonia. “Just like with domestic violence, if somebody wants to come kill you, that little (domestic violence protective) order is not going to stop them.

“If  someone wants to drink and drive, they will. You can’t legislate that out.”

Anger at the system

Seventeen-year-old Laura Elizabeth Fortenberry of Lowell died in Sunday night’s wreck on Dallas Cherryville Highway. Two other teenagers in the car with her were seriously injured.

Investigators say the driver of the other vehicle, 28-year-old Howard Clay Pasour, of Bessemer City, was drunk when he crossed the centerline and struck the teens’ vehicle head-on. He has been charged with second-degree murder and six other felonies, and is in the Gaston County Jail on a $4 million bond.

Pasour had three prior DWI convictions in Gaston County. One stemmed from an incident in 2002, while the other two occurred less than two weeks apart in May 2008.

He could have faced up to two years in jail for his second and third convictions in September 2009, but District Court Judge James Jackson gave Pasour just 37 days. Upon his release, he was made to wear an alcohol-monitoring ankle bracelet for two months, then was placed on unsupervised probation.

Pasour was charged with driving with a revoked license in April, but a hearing on that was pending at the time of Sunday’s wreck.

Critics such as Nancy Pelosi of Gastonia say Pasour’s criminal history should have prompted Jackson to give him more time in jail. Pelosi, whose child grew up with Fortenberry, stood in the rain Tuesday with several friends near the Gaston County Courthouse, holding up handmade signs while protesting the legal “loopholes” that allowed Pasour to get behind the wheel of a car again.

“We’re just very, very sad — and we’re mad,” she said Wednesday. “The laws need to be changed. It’s just not fair.”

Pelosi said she and her friends expect to find political support as they continue holding demonstrations and urging lawmakers to increase penalties for DWI offenders.

“There is strength in numbers,” she said. “If enough people will get upset about this, it will change the laws.”

Courts too lenient?

DWI convictions in North Carolina have one of five levels, with Level 1 being the most severe. Sentences are based on gross, aggravating and mitigating factors of the case.

But drunk driving only becomes a felony after a fourth offense in 10 years. And it’s one of only two criminal offenses not governed under North Carolina’s 1994 structured sentencing law. Because of that, there is no minimum, mandatory sentence, said Gastonia DWI defense attorney David Phillips.

That means even if the judge had sentenced Pasour to two years in prison in September, he would’ve only served half that, he said.

A DWI conviction is the only offense in this state that allows judges to put more emphasis on rehabilitation than jail time, Phillips said.

“It’s still seen as an addiction or a disease,” he said. “A lot of times, judges would like to see someone rehabilitated as opposed to being jailed. Because it’s a substance abuse problem.”

In late 2006, a new set of laws based on recommendations from a DWI task force were approved. State law was reworded  so a blood-alcohol level of 0.08 would be sufficient for a conviction.

“They took away lots of defenses we’ve used over the years,” Carpenter said.

Legislators said the laws would help increase conviction rates and impose stiffer penalties. Other changes through the years have added felony DWI charges, allowed for the seizure of vehicles, and introduced ignition interlock and devices that can restrict the use of vehicles.

Carpenter and Phillips said they think North Carolina has very strict DWI laws. But that doesn’t matter to some offenders. After the 2006 changes, Carpenter said he personally saw no decrease in DWI cases.

“I think the DWI laws are a deterrent for a lot of people, but not others,” Carpenter said. “A lot of offenders, they don’t even know what they’re doing. Drinking depresses their central nervous system, it affects their judgment, and they go out and do stupid things.”

A law too often ignored

The popular suggestion is to “lock someone in jail and throw away the key.” But the high volume of DWI convictions, jail overcrowding and the cost of incarcerating someone make that unrealistic. And whether it’s a one-, two- or five-year prison sentence, there’s no guarantee that will change the offender’s behavior later.

“Even if you give (Pasour) two years in jail, what’s going to keep him from drinking and driving when he gets out?” said Phillips. “Nothing.”

In the law’s eyes, Pasour had been stripped of his license and wasn’t supposed to be driving. But he did it anyway.

Some states require ignition interlock devices be installed on an offender’s car after the first DWI, requiring them to provide a breath sample to start the car and keep it running. North Carolina generally waits until a second conviction, unless the offender’s blood alcohol content measures 0.15 on the first DWI.

Interlock devices are a privilege for offenders who are still allowed to drive. In Pasour’s case, the state took all of his driving privileges last September.

But that didn’t stop Pasour from owning the Jeep Cherokee that he was driving in Sunday’s wreck. He also had the SUV registered through 2011 with the N.C. Division of Motor Vehicles, and was insured to drive it, according to the N.C. Highway Patrol.

The state is unlikely to force people to sell any vehicles they own if they don’t have a license, Phillips said.

Carpenter estimated about 10 percent of his DWI clients are repeat offenders. Phillips put the number higher.

“Right now, I’d say it’s pretty common, really,” he said.

Defense attorneys exist to give clients fair representation. They don’t condone drunken driving or any other illegal behavior, Phillips said.

“It’s a terrible tragedy and something that shouldn’t have happened,” he said of the fatal wreck Sunday. “Who knows what it’s going to take to get someone to not do that?

“Right now, we don’t have the answer.”

You can reach Michael Barrett at 704-869-1826.