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March 14, 2010

Should showing up for sentencing drunk justify a much tougher sentence?

This local story out of Nebraska, which is headlined "Police: Man Drunk At DUI Sentencing: Jason Botos Needed Help Getting Out Of Car," is mostly sad and comical.  Then again, it also raises the legal issue in the title of this post.  Here are the basics:

Authorities said a drunken driver showed up for his sentencing hearing drunk again.  Jason Botos, 30, was driven to court by his father and investigators said he was so drunk that he had to be helped inside and wasn't able to make his court appearance.

"He was unable to get himself out of the vehicle, he was so intoxicated," said deputy Sarpy County attorney Ben Perlman.  Investigators said Botos' father asked deputies to help carry his son inside the courthouse.

Botos was scheduled to be sentenced for a drunken driving offense in September 2009.  He was driving near Highway 75 and Cornhusker Road when his car jumped a curb and smashed into five other vehicles, critically injuring three people.

"Because he failed to appear for his court appearance, a warrant was issued," said Perlman. Deputies arrested Botos in the parking lot. "He was kind of slumped over.  Two deputies assisted him," said Sarpy County Sheriff's Deputy Tina Anderson. "He could not walk on his own."

Inside the jail, Anderson put Botos through a breath test.  "The test showed he was at a 0.43," she said, a level that is more than five times the legal limit....

Botos now faces a new charge and more jail time in a case that has authorities shaking their heads. "This is a pretty rare case, and extreme case," said Capt. Monty Daganaar of the Sarpy County Sheriff's Office.

Botos will be sentenced on Tuesday.  Between the new charge of failure to appear and the drunken driving conviction, he could get 18 months in jail.

Though I do not know Nebraska law well, I am inclined to assume there is no general prohibition on getting really drunk.  And, though I suppose Botos technically did not quite make it to his scheduled sentencing, it seemed as though he tried (and thus might technically have a mens rea defense to the failure to appear charge).  Thus, I think it is fair to suggest that Botos may end up getting a tougher sentence just because he did not have the good sense to avoid drinking (a lot) just before his sentencing.  Do readers think that bad judgment alone really justify a much tougher sentence?

Of course, I think all drunk driving sentences should be, for deterrence purposes, presumptively much long than they usually are.  But, I am inclined give Botos some credit in this setting for getting his dad to drive his sorry drunk butt to the courthouse for his scheduled sentencing.  And yet, it would appear as though that decision might end up costing him more time than if he just passed out drunk at home.

March 14, 2010 at 12:16 PM | Permalink


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Intoxication is not an excuse. Half the murderers are legally drunk, at the time. Many cannot remember the act nor any part of the night before. Half the murder victims are legally drunk or high. Unenforced prohibition resulted in only a 50% reduction in alcohol use. Yet, it was associated with a low crime rate, save for bootlegging.

One would consider criminal contempt of court charges. Placing him in jail could save his life if he uses that time to get treated for alcoholism.

Deterrence of the defendant, as an aim of sentencing. Acceptable. Deterrence of strangers committing crimes in the future. Unacceptable, unlawful, unfair.

Posted by: Supremacy Claus | Mar 14, 2010 12:34:17 PM

When you show up for sentencing for DUI drunk as a skunk, this tends to suggest that you haven't learned much, and that the lesson from your sentencing needs to be more emphatic than might otherwise have been thought.

Posted by: Bill Otis | Mar 14, 2010 2:39:09 PM

While appearing for sentencing while intoxicated is unusual (I have heard of very few cases) it does illustrate the complexities of dealing with addictive behavior. Some judges would have put the man in jail for 30 days for contempt but in general all that would accomplish is he would dry out. One he was released he would return to his prior behavior.

The mean time between incarcerations for such individuals in my county is about ten months. If they are unable to break that cycle (some do but many give up after several relapses) their chances of living very long are poor. Relapses are normal but it hard to get them to keep trying.

Posted by: John Neff | Mar 14, 2010 3:44:40 PM

I would LOVE to see a cite for the assertions that half of all murderers are legally drunk and half of all murder victims are drunk or high. It's certainly possible, I suppose, but it has just such a I-pulled-some-numbers-out-of-my-ass feel to it.

And Prohibition associated with low crime rates? Surely you jest.

Posted by: Cheqster | Mar 14, 2010 4:43:28 PM



Violent females in Finland:


British murderers:


Brazilian murder victims:


South African victims:


NYC Murder victims:


Posted by: Supremacy Claus | Mar 14, 2010 7:36:46 PM

I am alarmed at the fact that I am apparently in agreement with SC on one point. While it's hard to disagree with the efficacy of the incapacitation argument, I do believe that if prosecutors and other societal hand-wringers want to "send a message," the better practice would be to rent a billboard, rather than inflict more punishment on the poor soul before them, as he has nothing to do with whatever some other schmuck chooses to do--whether or not that other poor schmuck has any inkling of the sentence handed down at bar (I highly doubt that potential ne'er do-wells peruse the daily law reports and engage in a reasoned cost-benefit analysis after digesting same).

Posted by: Mark # 1 | Mar 14, 2010 11:43:58 PM

I don't want to get into a big thing with you here, SC, but surely you know that a study of 100 murderers does not necessarily mean that half of all murderers were high on drugs at the time of the crime.

Posted by: Cheqster | Mar 15, 2010 11:29:27 AM

In my locality, DUI sentences include a madatory assessment and a requirement that the person follow up with recommended treatment. For this guy it would mean at least that he was required to do an intensinve outpatient program which would meet like three times a week at the beginning of the program. Because this treatment is incorporated into the sentence, and the person will have up to a full year of suspended sentence I dont think it would be appropriate to give him more jail time at the beginning. Let him try at least. He clearly has a problem. If he violates a no drinking provison while on probation then you can pummel him.

By the way one of the problems with how this approach works is that the convicted drunk driver has to pay for the treatment, and that what i like to call the "alcohol industrial complex" will usually only recommend outpatient treatment, which they conveniently provide. This guy should probably be in an inpatient facility for 90 days at least and then do a outpatient program as follow up.

Posted by: KRG def attny | Mar 15, 2010 12:04:02 PM

I practice in Sarpy County a lot and know this prosecutor, as well as the judge who will sentence him tomorrow. Under Nebraska law, the court must choose between probation and a "straight" or jail sentence, and sentences of probation also carry mandatory jail time depending on whether the offense is aggravated and/or enhanced to a second or higher offense. The problem with sentencing this guy to a "straight" jail sentence is that he won't have any incentive to seek treatment other than to avoid future charges, which, in my experience, isn't motivating to chronic drunk drivers.

Yet if he was given probation, without jail, despite having appeared drunk, it might depreciate the seriousness of the offense.

If I were on the bench, I would assume that someone who appears drunk is either (1) incredibly disrespectful of the court's authority or (2) a hard-core alcoholic, who needs the "one alcoholic to another" approach of AA to truly get help for his addiction.

Thus, I would use some jail as a "stick" and sentence him to upfront jail time as punishment for coming in drunk, and use the rest of the potential jail time as a "carrot" by giving him probation and requiring him to attend treatment. I might give him a "show cause" sentence to be served just before Christmas as an extra incentive.

Sarpy County has the only DUI diversion program in Nebraska and has a strong AA presence, which has led to knowledgeable judges who know being "tough" on drunk drivers with only jail doesn't get to the root of the problem in most cases but who also know that being easy on them with only probation doesn't always send a strong message.

It's rarely done in Nebraska, but I hope the judge blends the sentence here, giving him upfront jail but also probation so that we address both the need to get a strong message and the need for long term treatment.

I sentence

Posted by: David | Mar 15, 2010 2:36:43 PM

Informative contribution, David. I am interested in what sentence is finally assessed. Without looking it up, if Nebraska judges are elected as they are here in Texas, I will predict that this Defendant is delivered a "message" that would make MADD proud. . .

Posted by: Mark # 1 | Mar 15, 2010 10:10:06 PM

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