The majority of operating while intoxicated cases filed in Lake County courts in 2014 have been reduced to reckless driving, according to an analysis conducted by The Times.
The numbers are far different in Porter County, where only a handful of operating while intoxicated cases were reduced to a lesser charge.
Drunken driving goes by different terms, including driving under the influence. Indiana, like Wisconsin, uses the term operating while intoxicated, called OWI.
For years, Lake County has been known as a place where drunken driving cases are routinely pleaded down to reckless driving charges. The practice, opposed by organizations such as Mothers Against Drunk Driving, is still seen by Lake County prosecutors as a reasonable way to move a case through a crowded court system over the years.
Lake County Prosecutor Bernard Carter said the plea deals to reckless driving still resulted in convictions of these people for a serious traffic offense. He said if his office did not reduce most drunken driving cases to reckless driving charges, the county would see a large-scale dismissal of cases -- at least in the short term.
Lake County prosecutors, like those in other counties, don't often go to trial on the cases. Still, in Porter and LaPorte counties, the charges are rarely reduced.
The Times recently reviewed 2014 operating-while-intoxicated cases in Lake, Porter and LaPorte counties, and a number of those cases still need to be resolved. In Porter and LaPorte counties, the statistics include boating under the influence and driving under the influence of alcohol and/or drugs; Lake County's number only includes county courts and not some city and town courts.
According to the latest U.S. Census numbers, Lake County's population is 490,228, Porter County's is 167,076 and LaPorte County's is 111,444.
In Lake County, 477 of the 827 cases resolved, or about 58 percent, were pleaded down to reckless driving. About 6 percent of the cases were dismissed, and about 36 percent resulted in operating-while-intoxicated pleas or convictions.
In Porter County, 560 of 691 cases resolved, or about 81 percent, resulted in an operating-while-intoxicated pleas or conviction. About 60 were reduced to reckless driving, with seven others reduced to public intoxication or lesser charges, or a total of about 9.7 percent. Another 64, or about 9.3 percent, were dismissed.
In LaPorte County, 277 of the 430 cases resolved, or about 64.4 percent, resulted in OWI pleas or convictions. Another 117 were reduced to reckless driving and three to public intoxication, or a total of about 28 percent. Another 33, or 7.6 percent, were apparently dismissed.
All numbers are approximate. There also is a possibility that some people whose OWI charges were dismissed were charged, and possibly convicted, with other crimes listed on data obtained by The Times.
LaPorte County
Robert Szilagyi, the LaPorte County prosecutor in 2014, said the reasoning for reducing a charge is based on several factors, including a low blood alcohol content reading, whether they are first-time offenders, and the manner in which the stop occurred.
"Regardless, even with the reduction, alcohol classes are required," Szilagyi said.
According to Szilagyi, 70 percent of first-time offenders are not repeat offenders, and "it becomes a hard lesson."
Current LaPorte County Prosecutor John Espar said the prosecutor's office would "absolutely not" be pleading down the same percentage of OWI cases in the future.
"Both I and my staff of deputy prosecutors are firmly committed to a policy under which criminal defendants are expected to accept responsibility for their crimes and the consequences of their actions," Espar said.
He said the policy is one that applies with equal force to OWI as to rape or robbery.
Espar added, however, that "in every case, a prosecutor must take into consideration the facts of the case, the victim, as well as the defendant."
For this reason, he indicated the "ends of justice" may dictate a departure from policy. He said, however, that "the exception is not honored as often as the rule, nor does it represent more than 35 percent of the cases."
Lake County
In Lake County, St. John Police Cpl. Steve Rudzinski estimates he has made well more than 1,000 drunken driving arrests over the last three decades.
In all that time, Rudzinski said he has had to appear in court on the arrests twice -- and in those were cases he was not the primary arresting officer.
More often than not, the person arrested in Lake County has his charge reduced to reckless driving, according to the statistics.
"We always see a lot of that, because the Lake County prosecutor's office is so busy and they take plea bargains," said Rudzinski, who heads up the Lake County DUI task force.
"You have a lot more crime and a lot more things going on and a jail that's already crowded," he said. "You have to be realistic; you can't send everybody to jail."
The volume and seriousness of crimes being committed in Lake County were cited by current and former Lake County officials for the large number of driving while intoxicated cases being reduced to reckless driving. The Times reviewed more than 1,000 cases filed in 2014 in Lake County.
Lake Prosecutor Carter said if a person charged has a blood alcohol content of more than .14, his office won't reduce the charge except under certain circumstances. Lake County Superior Court Judge Julie Cantrell said she will have prosecutors record the reasons for the reductions in such cases. In some cases, if the traffic stop was questionable, the case might be dismissed if the reckless driving plea isn't taken.
Former Lake County Prosecutor Jack Crawford, now an attorney in Indianapolis, said Lake County used to be more lenient when it came to drunken driving charges, but that was because he thought they had so much violent crime to deal with than neighboring counties, "and I think it's probably much the same now."
Crawford, who was prosecutor between 1979 and 1989, said a prosecutor needs to set priorities. While driving under the influence is seen as a more serious offense than in the past, Crawford noted a first offense is still considered a misdemeanor, and prosecutors generally don't have time to take misdemeanor cases to trial.
Still, in many places a prosecutor won't take plea bargains to a lesser charge.
Porter County
The Times review of hundreds of 2014 Porter County cases showed that only a handful were reduced to reckless driving. Cases were more likely to be dismissed than reduced. None was reduced in LaPorte County, although there are a number of dismissals in both counties.
"Our position in Porter County is if they are charged with DUI and we can prove it, then they are going to plead to it or we're going to trial with it," Porter County Prosecutor Brian Gensel said.
Porter County Superior Court Judge David Chidester said Porter County has been strict about reducing drunken driving charges even when he was a young lawyer back in 1981.
"It had to be a very narrow set of circumstances and (prosecutors were) even willing to go to trial and lose than reduce a DUI to a reckless for the sake of it," he said.
A circumstance where that might occur, he said, is if the person tests right at the legal limit of .08 blood alcohol content and there are problems with the physical field tests.
"Now you've got a tough case to plead to the jury," Chidester said. He said in those cases a plea to reckless driving, which includes therapy, may be the way to go.
Gensel said dismissals can happen for a number of reasons, including problems with evidence or even the reason the person was pulled over.
In one case, for instance, Gensel said a felony charge had to be dismissed because the person was stopped improperly.
Based on The Times' review, Gensel asked his deputy prosecutor to review cases coming out of Portage courts.
In looking at the dismissals, 30 of 36 charged OWIs couldn't be proved even to be reckless driving or public intoxication based on the lack of evidence, according to the report made to Gensel.
Of the 30, it was reported about 15 were crashes where no investigation was done for various reasons. Many of them, especially in the early 2014 cases, were cases where vehicles slid off in the snow. The drivers had either completely left the scene, were outside the vehicle when officers arrived, or were inside the vehicle but didn't meet the definition of operating the vehicle, according to Gensel's office.
In almost all of those cases, Gensel was told that officials had neither proof of, or time of, operation.
In the past, Gensel's office used to be able to "prove-up" public intoxication in such cases, but according to the report a legislative change ended most of those, "because a drunk guy sitting in a car waiting for the police to show up is the opposite of endangerment."
Two cases involved younger drivers who had registered on the low end of the breath test for operating a vehicle while intoxicated and had already signed up for the military. Conviction and prosecution would have precluded their enlistment, according to the report
"We discussed the cases with their respective recruiters and had them complete all of their treatment and public service obligations while the cases were pending, and then I dismissed the cases the day before they reported to basic," stated the report.
Pleas problematic
Frank Harris, with Mothers Against Drunk Driving, said there is no official data available on how many drunken driving cases result in guilty findings. He estimated that -- of about 1.4 million cases nationally -- perhaps a million result in conviction for the original charge. He called that a liberal estimate.
Harris said MADD is opposed to any plea reductions or diversions in drunken driving cases. Recently, the organization successfully fought legislation in Arkansas that would allow for such plea agreements.
In cases where prosecutors believe they have to plead cases down to a lesser charge, they should at least require an interlock device to be installed on the vehicle for a minimum of six months, Harris said.
An ignition interlock is a device about the size of a cellphone wired into a vehicle's ignition system. A driver must blow into the device to start the vehicle. If a measurable amount of alcohol is detected, the vehicle will not start.
While a large number of drunken driving cases in Lake County continue to be reduced to reckless driving, the policy is a lot tighter than it used to be, according to Porter County's Judge Chidester, who once worked as a defense attorney in Lake County.
"When I was a young lawyer, a person could have a .25 (three times the current legal limit for blood alcohol content), and you could get a reckless over (in Lake County). This is 1980 we're talking about," he said.
Chidester believes the situation changed in the 1990s when a decision was made to establish a level at which a person no longer could receive a reduced sentence to reckless driving unless there were other circumstances involved.
Lake County's Carter said special exceptions that might result in a reduction can vary depending on the case. Prosecutors look at the strength of the case and whether they have good field test and machine results for intoxication.
For instance, Carter said the law requires that a person be tested within a certain time period and that the officer be with the person and make sure he or she doesn't do anything like put something in their mouth.
"Sometimes that's violated, and you can get the test suppressed and if (it gets) suppressed, we're not going to win (the case)," he said.
Over the years, Carter said the office has periodically refused to do a plea on a case where the defendant's BAC is lower than the standard set by the office to "test the attitudes of the citizens of Lake County, to test our range."
"Inevitably, the jury finds these cases not guilty," he said.
For instance, Carter said in a case where a person has a .10 BAC, or 2 percentage points above the limit, the person may testify to having three drinks within a certain period of time. Both sides will call in experts to testify regarding the impact of alcohol on people based on body size, he said.
"They say, 'I was out last night and my wife and I had three drinks and we sat there for another hour, and we thought my score was low and then we left.' Well, that's what the defendant is going to be testifying -- even though they are probably not telling the truth. But that's what they say," Carter said.
He said, "Juries sit there and think, you know, it's scientific to some extent, it's biological to some extent, and juries just get in that. So when we go to trial on that, a lot of times we lose, because the juries think he or she paid for an attorney, I'm sure the attorney is expensive, we're here at trial, that could have been me, that could have been my wife ... and, eventually, they come back with a 'not guilty.' "
Carter said a lot of time and tax dollars are spent on such cases, which he and some others said can be tougher to prove than some murder cases because of the science involved.
"So due to the volume that we have, I think it's easier for us to move these cases, because (a reckless driving charge) is still a major traffic offense," Carter said.
Three major traffic offenses within 10 years can result in the permanent loss of a license, he said. They also are ordered to receive alcohol treatment.
The reduction, however, also means if a person gets a second operating while intoxicated charge within 10 years, they won't be charged with a felony.
Still, Carter thinks the value in obtaining the major traffic offense on the person's record "outweighs possibly losing the case or tying up the court system."
Carter said while Porter County does few reductions, officials there don't have the volume of his courts. Porter County's Gensel suggested a more interesting comparison would be to look at how Lake and Porter counties compare to counties of similar size.
"I don't know if it is fair to compare Porter to Lake County," Gensel said.
Practical considerations
Carter said the ignition interlocking system is usually used only on second and third offenses. He said it can be expensive and time-consuming with the monitoring involved. Still, he has no objection to its being done more often, he said.
Carter said the county's policy is that if a person gets a second operating while intoxicated charge, they can't have it reduced unless there is some problem with the case.
Carter said he recognizes driving while impaired is a problem and needs to be rectified as far as possible through punishment and treatment.
"I cannot do a plea agreement with no alcohol treatment. The judge would reject it and rightfully so," he said.
"I think that's the pound of flesh they are getting out of it," Carter said. "It's not the community service we order sometimes. It's not the probationary period."
However, Harris, with MADD, said studies have shown treatment programs don't really have an impact on preventing a drunken driver from committing the offense again, unless an ignition interlock device is required as part of the program.
The organization notes a National Highway Traffic Safety Administration review between 1989 and 1999 on diversion programs that involved alcohol treatment found no evidence it reduced drivers committing the offense again.
Carter said he realizes some people are alcoholics and they are going to continue to drive drunk -- even if their license is taken away.
Carter said if Lake County were to follow the lead of other counties like Porter County and not agree to reductions of charges to reckless driving, the system would become clogged with cases, defense attorneys would demand speedy trials, and cases would be dismissed.
Gensel did not discount Carter's arguments.
Carter said more courts and prosecutors would be needed in Lake County if it were decided not to accept reduced pleas in drunken driving cases.
He also said if Lake County refused to accept reduced pleas in drunken driving cases, dismissals would rise, at least in the short term. But, he said, "it would level out" over time, and defense attorneys would come to accept the new situation.
"But that's a situation where would lose hundreds of OWIs in the process," he said. At this point in time, Carter said he is not willing to accept that trade-off.