SAN ANTONIO - Lisa Smith choked back tears after jurors last month sentenced the drunk driver who killed her daughter Erica in 2007 to two years in prison.
“No, I do not certainly believe that it was enough time,” Smith said. “I hope someday I will find forgiveness in my heart but it is very difficult.”
The trial of 32-year-old Jenny Ybarra was what most people expect from a high-profile drunk driving case resulting in death – intense media coverage and a dramatic trial capped by a jail sentence handed down by 12 jurors. But that’s not how the overwhelming majority of felony drunk-driving cases are handled in Bexar Country courts.
Most felony DWI defendants have not killed anyone and rarely get prison time. In Bexar County, the majority of those charged with DWI for the third time or more are still most likely to again be placed on probation, despite having been put on community supervision for prior DWI convictions.
An analysis of three years worth of court records obtained from the Bexar County District Clerk reveals 52 percent of felony DWI offenders across all Bexar County District Courts get probation in cases where the sentence is decided by a judge.
“I’m surprised to see this number. It’s disappointing to see that more people are getting probation versus being sentenced to the fullest extent of the law," says Jennifer Northway, executive director of Mothers Against Drunk Driving-South Texas. “Because at this point it’s been moved up to the district court, and it should be considered a very serious, egregious problem that needs to be nipped in the bud.”
First and second DWI misdemeanors are handled in County courts. A third DWI charge becomes a felony taken up in District courts.
“I sent most of them to prison,” says District Attorney Susan Reed, a former judge, referring to convicted drunk drivers in her court. “There still has got to be a consequence. That's what we try to insure when we look at recommendations we make.”
The court data also gives a glimpse into how each District judge handles these types of cases, including which jurists hand out the most prison time. The toughest on third-time offenders are Mary Roman in the 175th District Court and Juanita Vasquez-Gardner in the 399th, with both sending 58 percent to prison.
Maria Teresa “Tessa” Herr in the 186th hands down the least amount of prison time for DWI convictions, putting only 37 percent of felony offenders in her court behind bars. The judge with the second lowest rate is Raymond Angelini in the 187th, who sends 40 percent of DWI convicts in his court to jail.
“I would like to know a little bit more, especially for those courts where we do see that there is over a 50-percent probation rate,” Northway says. “I would really like to know what’s going in the 144th, 187th, and 186th.
Defense attorney Nico LaHood, who represents defendants in drunk-driving cases, isn't surprised by the variances in sentencing. “There is no cookie cutter way to handle a DWI third,” he says.
LaHood points out third-time DWI offenses come with the possibility of two to 10 years in prison, or as much as 10 years of probation, as well as a fine of up to $10,000.
“That’s a big range of what can happen. So what they’re telling us is that not every situation is the same,” he says. “There’s so much more to this story than just saying judges are too easy, or this should be different, because it’s not a black and white answer.”
District judges contacted for this story did not respond to requests for comment. But a judge who asked not to be identified because he still presides over DWI cases explained how sentences in DWI cases are usually decided.
“One of the things you look at is, when did the first two convictions occur? That’s the first thing you look at,” the judge says. “Was he on probation when he committed the third offense? Was it 10 years ago or 15 years ago?”
The judge explains he’s more likely to hand down prison time to those who’ve gotten caught driving under the influence again not long after their second conviction.
“Those guys make me nervous," he says. "I would be less inclined to grant probation on somebody like that, unless the state is recommending it because there is some underlying problem with the case, or unless there is some really compelling arguments on why you’d want to do that – because they are the most dangerous. They are getting [convictions] back to back, and there’s no intervention or no stopping it.”
Every drunk-driving defendant who lands in District court goes through an intense evaluation conducted by Bexar County probation department to determine if there is an alternative to incarceration. For those deemed not to be a threat to society, the recommendations usually include ignition interlocks and alcohol treatment, and they are required to wear ankle bracelets that detect alcohol if they drink.
“They’re nonviolent offenders and we have ways to control them on the outside,” says Sheri Simonelli, president of the Bexar County Probation Officers Association.
That's the approach favored by Jamie Balagia, a defense attorney known as "The DWI Dude."
“We are creating criminals, and we don’t have to,” Balagia says. “As a taxpayer, I don’t want to pay $60,000 a year to keep [someone] who would otherwise be a productive citizen locked up when we could have him out here paying taxes and working."
Reed has a virtual zero-tolerance policy on drunk driving. But in an effort to clear misdemeanor DWI cases clogging dockets in County courts, she established an alternative offense in 2008 called “obstruction of a highway – intoxication” for first-time offenders. That charge comes with rigorous conditions of probation. But Reed believes repeat offenders – whom she has targeted with mandatory blood draws in cases where they refuse a sobriety test – should do time.
“I think it is necessary when you have repeat offenses to increase punishment as you go,” said Reed. Asked if that meant prison time for third-time offenders, she replied: “I think it should.”
Although the current statistics are alarming to some, the number of cases in which defendants only get probation has dropped over the last decade. A similar analysis I conducted back in 2002 revealed 58 percent of felony DWI convicts at the time got probation – 6 percentage points higher than we find today.
Defense lawyer Shawn Brown thinks he knows what’s caused the decline in in cases where a judge gives probation.
“The numbers are coming down in Bexar County, and I think a lot of it is the media telling stories of accidents," Brown says. "People are upset about it and the courts are feeling pressure.”
But as with most discussions of prison sentencing in Texas, the issue ultimately comes down to availability of prison space. “We’re seeing judges take into consideration the jail overcrowding issue, and trying to figure out what they can do to still put some sanctions in place but not have to 'burden' the jails," Northway says.
But it’s the certainty of time behind bars that MADD believes would make many drunk drivers think twice.
“So people are being able to skirt around [prison sentences], because of time served or what have you," Northway says. "But at the end of the day it’s still not enacting a strict sanction, which is ultimately what is going to change people’s behavior.”