Drunken driving reprieves possible LAW: Man charged with a 9th DUI could be among those who benefit from a legislative mistake.

March 12, 2000

By KIMBERLY KINDY The Orange County Register

Randall Brockus is facing his ninth drunken-driving offense and a lifetime in prison, but an Orange County attorney just might get him off  due to a mistake by the California Legislature.

In early 1999, the Legislature rewrote a growing and complex set of drunken-driving laws to make them easier for both the legal system and public to understand. But a provision targeting repeat DUI offenders was accidentally omitted.

Now, defense attorneys are lining up to get their clients' felony charges reduced to misdemeanors.

The difference in potential punishment for repeat offenders is huge. Most felonies carry an extended prison sentence, but a misdemeanor conviction often ends with a suspended license and short stint in county jail.

The legislative error was found, and an emergency bill was crafted to fix it. But from July 1, 1999, to Oct. 10, 1999, defense attorneys insist there was a legal loophole.

And the hole might be big enough for hundreds of accused drunken drivers to slip through.

"Hey, if the Legislature doesn't do the right thing to protect the people of the state of California, you had better believe I'll do my job to protect my client," said Orange County public defender Dyke Huish, who was the first to spot the mistake for the Brockus case. "They made a mistake, but my client shouldn't pay for that mistake. The law was clear. No one is arguing that it's ambiguous."

Brockus' latest arrest came just a couple of hours before dawn on Aug. 7, 1999, when a police officer says he spotted the Diamond Bar man's car idling at a stoplight at Orange Olive Road and Lincoln Avenue in Orange. Brockus was slumped over the steering wheel of his Chevy Cavalier with a blood-alcohol level of 0.26 percent, more than three times the legal limit, according to the Orange County District Attorney's Office.

Brockus pleaded not guilty to the charge. Through his attorney, he declined to be interviewed for this article.

The legal provision that was restored through the emergency legislation allows prosecutors to increase a misdemeanor drunken driving charge to a felony if the driver has had felony DUI convictions within the past 10 years.

Driving with a blood-alcohol level that exceeds 0.08 percent constitutes drunken driving in California.

The charge is automatically elevated to a felony if the driver injures or kills someone while driving drunk. Having four DUI convictions within a seven-year period also bumps up the last of those to a felony.

The three-plus months that passed before the Legislature's emergency bill kicked in may seem like a short period of time. But from July 1 to Oct. 10, 1999, more than 25,000 people were arrested by the California Highway Patrol for drunken driving, over 10,000 people were injured and an additional 302 people were killed in alcohol-involved crashes.

And the CHP accounts for just about half of DUI cases in the state.

In addition to the Brockus case, attorneys in at least four other cases  three in Orange County and one in Riverside  are preparing briefs that use the same legal arguments to get their client's DUI felony charges reduced.

Collectively, these four defendants have at least 25 prior drunken-driving convictions. None of the men injured anyone, according to court records.

But Bob Trueblood and Michael Wesley Reding say these four men have just been lucky, and they should know.

Trueblood lost his entire family  his wife and three small children  to a drunken driver who had no prior DUI arrests or convictions.

Reding is the man who killed them.

"I never thought I'd hurt anyone as I climbed into a car after drinking," said Reding, a graduate of Esperanza High School in Anaheim and California State University in Fullerton. "I thought that was a mistake other people made, that I wasn't that stupid. And I'm certain that I had been in a car in a worse state than I was that night. I had been fortunate before that night, before everything went horribly wrong."

Reding, 26 at the time of the 1984 crash, had downed a half-dozen beers and five shots of hard liquor at a Brea bar.

He was convicted of manslaughter in the crash that ended the lives of Pamela Trueblood, 36, and her three children: Eric, 11; Kerry, 9; and Scott, 8.

Reding served five years in prison and said he no longer drinks.

He has conflicting feelings about the Brockus case. He didn't find prison to be a place of healing or even rehabilitation, but he believes drunken drivers should face harsh punishments.

Trueblood, who lives in Yorba Linda, doesn't have such conflicts. The loophole Brockus might slip through reopens old wounds, since he watched the Public Defender's Office successfully overturn Reding's original second-degree murder charge.

"Getting this guy off isn't just," Trueblood said. "We're lucky that he hasn't hurt anyone."

Attempts to use the legislative slip-up also have disheartened Assemblyman Jim Battin, R-La Quinta, who has authored bills to toughen drunken-driving laws.

"If the public defenders think they have a technicality they can get them off on, that is a travesty of justice," said Battin, who wrote the law that was temporarily omitted. He then wrote the emergency legislation that restored it into the law.

"They would be allowing people to go back out on the road who are habitual drunk drivers," Battin said. "I certainly hope that they don't go out there and kill someone. This is flat wrong."

The glitch has lawyers engaged in a chess game of sorts, sizing up their opponents' legal angles before they make their next move.

Officials in the California District Attorneys Association said they believe other laws could be applied to keep the felony charges in place. They also think the judge will look at the intent of the Legislature, which was to clarify, not soften, DUI laws.

But as they analyze their opponents' moves, they're not too proud to comment on the public defender's legal prowess.

"I'm not surprised it's coming from the Orange County Public Defender's Office  they are one of the most aggressive in the state," said David La Bahn, with the California District Attorneys Association. "If someone is going to be creative, Orange (County) is going to be the one to do it."

In all five cases, the drivers' DUI record is long.

There are at least four prior drunken-driving convictions for each man.

In Brockus' case, his first DUI conviction came 17 years ago, and this loophole test-case collides with yet another law aimed at cracking down on repeat criminals.

The three-strikes law might land Brockus in prison for life, if the felony DUI charge sticks, because he has three prior arrests for violent crimes  all robberies.

"Do I want Mr. Brockus to ever drive again? No. Do I think he should go to prison for the rest of his life? No. I don't think that's justice either," Huish said. "But this isn't really about Mr. Brockus. This is about the law and what the Legislature did. They wrote the three-strikes law, and the Legislature also made this mistake."

-- cin (cinlooo@aol.com), March 12, 2000

Answers

We have a big gully behind our house and it needs lots of fill. A neighbor suggested a truck load of lawyers would make nice fill.

Got any??

-- gilda (jess@listbot.com), March 12, 2000.

No kidding, Gilda.

Another "Just doing my job" attorney.

-- cin (cinlooo@aol.com), March 12, 2000.

The issue here isn't so much with lawyers as with the philosophy of codification. Attempts to specify precisely which acts are illegal always run the risk that essentially similar acts, not explicitly codified, are therefore legal. Lawyers are an artifact of the system. Here's an interesting quote from the book "Adiamante" by L. E. Modesitt:

"If a society agrees that theft is not acceptable, then theft is not acceptable. Now, let's say that an apple falls from my neighbor's tree and rolls into my yard. Is it theft if I eat it? Probably not, and no sensible individual would argue about a single apple or even a few. When a lawyer writes down and codifies theft as not including fallen apples that roll away, then that creates the opportunity for some untrustworthy individual to shake apples from a tree onto a slanting ramp that carries them off the property. Then that untrustworty individual can claim he did not steal the apples -- not according to the law."

-- Flint (flintc@mindspring.com), March 12, 2000.

Gilda, Just make sure that you cover that truck load of lawyers with at least 20 ft of dirt. Because deep down lawyers aren't too bad.

-- Malcolm Taylor (taylorm@es.co.nz), March 12, 2000.

LOL

-- cin (cinlooo@aol.com), March 13, 2000.

{glancing around Flint's property preparing to 'shake the tree'} hee hee.....[eg}

-- consumer (shh@aol.com), March 13, 2000.

Yeah, yeah, it's easy to pick on lawyers until you need one. If you're wrongly accused of a crime, who ya gonna call? A lawyer. If your insurance company refuses to pay a valid claim, who ya gonna call? A lawyer. If the police bust down your door without a warrant, who ya gonna call? A lawyer.

I've said this before and I'll say it again DO NOT BLAME THE LAWYERS! They are only working within the confines of the law as set down by our legislators. A lawyer can jump up and down and scream all they want in court but if the law doesn't support their argument, they lose.

Want to blame someone? Try *OUR* representatives. They make (and change) the maze that lawyers must navigate to do their jobs. Period.

-TECH32-

-- TECH32 (TECH32@NOMAIL.CON), March 13, 2000.

Touchy touchy, Tech, r u a lawyer? {smile}

-- consumer (shh@aol.com), March 13, 2000.

No, not a lawyer. I don't even play one on TV...

-TECH32-

-- TECH32 (TECH32@NOMAIL.CON), March 13, 2000.