Drinking Games

Two high-profile convictions rekindle a debate over what to do when drunk drivers kill

Shortly after 11:00 p.m. on February 16, Nicole Gebeck drove the wrong way down Interstate 94 west out of Minneapolis. She collided head-on with Stanley Croissant, a 36-year-old father of two, killing him instantly. Gebeck had a blood alcohol level of .25, more than twice the legal limit--which, in the state of Minnesota, is .10.

About 4:00 a.m. on May 20, Souksangouane Phengsene drove the wrong direction down Highway 100 in St. Louis Park. He collided head-on with Malik Sealy, the Minnesota Timberwolves forward and father of one, killing him instantly. Phengsene had a blood alcohol level of .19.

Last month Gebeck and Phengsene were both convicted of committing criminal vehicular homicide. Despite the striking similarity between their crimes, and state sentencing guidelines designed to ensure that everyone is treated the same under the law, the futures of Gebeck and Phengsene will be very different. Phengsene is to serve four years in prison. Gebeck will be back at work in two months.

Souksangouane Phengsene and Nicole Gebeck were both convicted of vehicular homicide. One of them is going to prison.
Souksangouane Phengsene and Nicole Gebeck were both convicted of vehicular homicide. One of them is going to prison.

"You want a certain sense of fairness in the system," says Hennepin County Attorney Amy Klobuchar, who met with Stanley Croissant's frustrated family and friends after the Gebeck sentence was handed down. "Because it discredits it for everyone if you have such close factual situations with such wildly different sentences."

Diane Krenz and Karel Moersfelder, the assistant county attorneys from Klobuchar's office who prosecuted Gebeck's case, actually lobbied Judge Stephen Aldrich to double the penalty called for in the sentencing guidelines--four years in prison--and put her behind bars for eight years. Their argument was that the defendant was not only very drunk but grossly reckless, having driven at close to 85 mph for nearly eight miles before the accident happened. The county attorney's office intends to appeal the judge's decision, arguing that there were not sufficient grounds to soften the sentence called for in the guidelines.

In the Sealy case, despite the high profile of the victim, the Hennepin County Attorney's Office sought a sentence of only four years in prison. The defense argued that Phengsene should not serve any prison time, citing the Gebeck case (which was decided eight days earlier) as a precedent, but to no avail.

The disparity in Gebeck's and Phengsene's sentencing stems from the ongoing debate over the nature of vehicular homicide itself. Prosecutors and victims'-rights advocates view it as murder with a car. Defense attorneys argue that vehicular homicide is a crime without any intent to do harm and that prison is the wrong place for offenders. "This person killed someone," argues Klobuchar. "They made a decision to go out and get drunk and get behind a wheel. That decision is as much of a personal-responsibility decision as someone packing a gun. In their hands that car is like a gun."

"Prisons are not rehabilitative places," counters Frederic Bruno, Gebeck's attorney. "They're places for punishment: There's drugs, there's alcohol, there's sodomy. To want that to happen to somebody who never intended to hurt anybody is not justice. What separates [Gebeck] from hundreds of people driving down the road every night is luck--bad luck."

For decades the judicial system has treated vehicular homicide much the way Bruno would have it: as a cosmic mistake, something that could happen to anyone. But in recent years, prosecutors and judges, under pressure from victims'-rights advocates and organizations such as Mothers Against Drunk Driving, have altered the way they approach the crime. In 1994 the Minnesota Sentencing Guidelines Commission changed criminal vehicular homicide from a level-six to a level-seven crime. In concrete terms, this means that the recommended sentence for someone with no previous felony convictions jumped from no prison time to four years.

Other states have become even tougher, often charging people with first- or second-degree murder in such cases. In North Carolina, for example, drivers have been given life sentences for vehicular homicide, and the possibility of imposing capital punishment has even been broached.

"I have seen and started to report nationwide that there is more of an inclination by prosecutors to charge these very egregious types of crimes as murder charges," notes James Campbell, former dean of the National College for DUI Defense. "It literally is not, but because of the public's attitude and the turmoil that gets people worked up over these cases, that's what they end up doing."

"I believe that judges and the public are starting to see these cases differently, and that's a good thing," Klobuchar maintains. "But historically, when you go back, I think they just said, 'Well, it's a drunk-driving case. This guy was drunk, he didn't mean to do it, and oh, someone died.' ...If we used that standard in all of our cases, I guess we wouldn't prosecute anyone."

Despite the national trend toward harsher penalties, Minnesota judges often deviate from the guidelines in vehicular-homicide cases. According to figures from the Minnesota Sentencing Guidelines Commission, in 56 percent of such cases from 1996 to 1998 (the most recent numbers available), judges did not impose a prison sentence. In Hennepin County the figures are slightly different: Since the beginning of 1999, just 35 percent of defendants convicted in vehicular homicide cases have avoided serving prison time. In contrast 75 percent of all felons convicted in 1998 received the sentence recommended under the guidelines.

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