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October 15, 2017

LWOP+ sentence imposed for impaired driver who killed two in Florida

Long-time readers know I am sometimes inclined to complain about repeat drunk drivers getting lenient sentences unless and until they hurt someone.  But once an impaired driver starts hurting or killing, sentences then can often get quite severe.  A helpful reader alerted me to this notable local story from Florida reporting on the severest possible sentence imposed on an impaired driver in Texas headlined "Trucker gets life in prison on DUI charges from crash that killed two Naples women." Here are excerpts with emphasis on the sentencing particulars:

It was an impact statement about a moment of impact. “In one single second, my best friend, my wife .. my entire world came crashing down,” Dan Jenkins said, describing the horror as he watched a Kenworth tractor slam into a car driven by his wife on a rural Central Florida road in 2011. And it had the desired impact.

Circuit Court Judge Marcus Ezelle sentenced Michael John Phillips, 52, to life in prison plus 15 years for DUI manslaughter in the deaths of Jennifer Jenkins, 35, and Kathleen O’Callaghan, 34.

The two friends from their days as schoolgirls in Naples were killed as they drove toward Orlando for the birthday party of another friend. Dan Jenkins was following in a second vehicle, the couple’s 2-month-old daughter with him.

Phillips, found guilty by a Hardee County jury in August, could have been sentenced to as little as 25 years, according to state sentencing guidelines. But eight family members and friends gave victim impact statements at Friday’s sentencing, each asking Ezelle to impose the maximum penalty of life in prison. Ezelle went symbolically further, pronouncing a life sentence for one count of DUI manslaughter and an additional 15 years for the second....

In Florida, judges must sentence defendants based on a score tabulated in a pre-sentence investigation. Phillips’ score was 364.4. Had it been 363 or lower, a life sentence would not have been an option. Factors that boosted his score included drug arrests dating 30 years, a refused drug test while free on bond in this case and then absconding on that bond, which delayed the case for several months while authorities searched for him.

Defense attorney Kelley Collier asked Ezelle for a sentence of less than life in prison, in part because Phillips was just over the points threshold. He said Phillips, who tested positive for methamphetamine in his system, basically fell asleep at the wheel of the truck. “He does not have a conscious recollection of the accident,” he told Ezelle.

Falling asleep at the wheel is not a reaction one would expect from using methamphetamine, Collier said. “I would argue that the facts are not the kind of facts that would warrant that kind of (life) sentence,” Collier said.

Ezelle said the fact that Phillips didn’t intend to cause the crash wasn’t relevant. The manslaughter conviction, by its nature, presumes the guilty party didn’t premeditate the crime. Instead, the case was about creating risk that endangered others. “Mr. Phillips, by his decisions, weaponized a commercial vehicle,” Ezelle said.

Collier said he plans to file an appeal of Phillips' conviction, based in part on expert testimony he said should have been disallowed at trial. Family members had been frustrated by the slow pace of the case. It took investigators almost a year to charge Phillips. Friday’s sentencing occurred just two days shy of the fifth anniversary of those charges being formally filed in court....

Dan Jenkins said the life sentence will make it easier to explain the tragedy to his daughter, Ashley, now almost 6, when she asks about her “Momma Jen.” “Now I can tell her the man is in jail for the rest of his life. I can look at her and say that man will never hurt anybody again.”

I am pretty sure that Florida has no parole mechanism for these kinds of cases, so this life+ sentence is truly an LWOP+ sentence.  I am not so sure, but now wondering about, whether this defendant could have and would have received a much lower sentence had he been willing to plead guilty.  Relatedly, it is unclear what particular facts and factors were critical at trial for his convictions and how much "expert testimony" may have made a difference.  Whatever the plea/trial backstory, I now have another example for my students of how relatively common risky behavior can be punished severely when it results in particularly tragic harms.

October 15, 2017 at 12:44 PM | Permalink


I have to express my gratitude to the legal system. Intentional intoxication is not yet a mitigating factor.

That being said, the logical utilitarian view is to make all crimes strict liability. Then, the executive branch should recommend a sentence, and be held accountable under standards of professional due care for future consequences.

On the defense side, there is an outcome bias in sentencing. I hope Prof. Berman will ask his students to review the briefl Wikipedia article. Sentencing is not based on the actus reus. He could have hit a mail box, versus killed two beautiful women, the sentence would be different. Outcome bias is a violation of Fifth Amendment procedural due process right to a fair trial. That defense has never been used to my knowledge, Bruce, the violation of a rule against one of 100 cognitive biases.


One has to wonder if he had a prior record of crime and sentencing. If he did, then liability should also go to the people that allowed in the streets and on the road. This is important. If he slipped through the regulatory cracks that allowed a prior felon, and current substance abuser on the road, those holes should be plugged.

The multi-factorial theory of catastrophes would force such investigations. The lives of those beautiful women would not be wasted if their tragedy were to prevent the loss of lives in the future. Multi-factorial is an antonym and far more valid than the Medieval Era concept of chain of causation. The latter traces single faults back to the time of the Big Bang of the universe, and is not very useful.

Posted by: David Behar | Oct 15, 2017 1:19:12 PM

I have also proposed making modafinil over the counter, and cheap. It is a highly effective and safe alertness product, with none of the baggage of amphetamines and of the ineffective caffeine in energy drinks.

I hope to prepare an FDA Citizen Petition to make it available that way. I hope that a variety of shift worker associations will join me in the petition.

It has the potential to save thousands of lives taken by impaired driving and by the operation of any dangerous machines.

The neurologists will likely oppose it, but may support regulatory reform imposing forced napping without punishment by employers. I had standing to sue a local police department on behalf of patients for its anti-sleep rules. I decided to go after their national accrediting agencies, under guideline maker liability. I do not want to bully a small town.

Posted by: David Behar | Oct 15, 2017 1:28:05 PM

Given that he has drug arrests dating back 30 years I would have to figure at least some of those resulted in conviction. Actually, I am surprised he was able to get a CDL at all, I thought drug related offenses were one of the disqualifying factors there.

Posted by: Soronel Haetir | Oct 15, 2017 3:50:45 PM

Declaration on the Rights of Mentally Retarded Persons

Posted by: Claudio Giusti | Oct 17, 2017 11:08:14 AM

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