Seven DWI cases were dismissed in early January, and Shaw said that the county attorney filed motions asking for the dismissal of these charges because there was simply insufficient evidence to move forward with the prosecutions of these cases.
Shaw said that what many people may not understand is that as the judge who would preside over any criminal case that would go to trial, she cannot look at the case file or review evidence collected by the law-enforcement officer who made the arrest before the trial begins. As county judge, she has no way to examine the evidence in order to decide if there’s enough evidence to move forward. As a result, she has to rely on the prosecutor – in this case, the county attorney -- to make a recommendation as to whether or not there is enough evidence to proceed with prosecuting the case.
“We rely on the prosecutor for that evidence,” Shaw said. “He is the one that has to figure out whether stuff goes to trial or not. If I don’t dismiss it, he doesn’t have to put it back on the docket.”
Shaw talked to District Judge Stella Saxon, seeking advice on what to do under these circumstances.
“Hey. Who do you rely upon to figure out if it is going to go to trial?” Shaw asked the district judge. She said, ‘Well, the DA, of course.”
Although a county judge always has the option of either granting or denying a motion for dismissal from the prosecutor, Shaw said there wouldn’t have been any point to continuing with a case that the county attorney believes would not result in a conviction.
Shaw said she doesn’t sympathize with people who have been arrested and charged with driving while intoxicated.
“I could choose not to dismiss them, but then we go to trial and he still says he has no evidence? What do I do when we get to trial and he says we have no evidence?”
“Him and I are not a team,” Shaw said. “It’s not ‘we’ – we are not a team. Once we get into trial and we hear that, then I have to rely on him to be the prosecutor.”
After initially declining a request for an interview on March 11, County Attorney Bob Busselman agreed to be interviewed on March 18 in order to give a more detailed explanation as to why he sometimes files motions to dismiss criminal charges in DWI cases pending before the court.
Busselman said that he would not talk about the specific reasons that he recommended dismissal of the charges in the seven cases recently dismissed, but he could talk about the way his office handles some DWI cases.
Busselman said that as county attorney, he has discretion about which cases to file, which cases not to file, which cases to prosecute, and which ones he believes should not be prosecuted. He said he tries to help people, whenever possible. He said he often tries to find a solution to an alcohol related problem other than a criminal conviction.
The county attorney recalled one occasion when a man was in his office who had been arrested for a second DWI offense.
“When I looked at him, I knew that he was an alcoholic,” Busselman said. “He came in and sat down and said, ‘Mr. Busselman, I’m an alcoholic, but I need some help.’”
Busselman asked the man what he was going to do about the problem and the man said that he intended to enroll in an alcoholism treatment program.
“I will hold your case off the trial docket,” Busselman told the man. “You go and enroll in this place and have them send me a letter that you have enrolled there and I want a report from them every week and I will hold this case.”
Busselman said he read the reports each week for several months, and the reports all said the man was doing well in the program. After a while, he stopped reading them, but then one day a man walked in his office, and he didn’t recognize him.
“Do you know who I am?” The man asked. “I’m the guy that you allowed to go (into treatment.)”
The man had changed so much, that Busselman did not recognize him.
He then told Busselman that he was now a counselor at the same treatment center where he once went in as an alcoholic.
These are the kinds of “happy endings” that Busselman says he tries to find, whenever possible, instead of prosecuting and seeking criminal convictions in all drunk-driving cases.
Busselman said that he has only prosecuted three or four DWI cases at trial in the past four years, and even fewer than that in the past two years while he has been splitting his caseload with an assistant county attorney.
The consequences of a DWI conviction are harsh, Busselman emphasized.
He pointed out a case where a young person with a bright future ahead of him was arrested and charged with DWI.
It would have been impossible for this person to get a nursing license with a DWI conviction record, Busselman said, so he agreed to offer the young person an “unofficial probation.”
“I will watch you,” Busselman said, recalling his conversation with the young person. “And if you make it without any other alcohol related problems, I will ask the judge to dismiss this case.”
This example happened eight or nine years ago, and Busselman said that the person involved continues to have a “clean record” -- no subsequent alcohol-related arrests since the first incident.
Because the consequences are so harsh, Busselman said these cases ought to be based on solid evidence.
He said he makes a distinction between cases where the driver is stopped due to a burnt out license plate bulb or some other minor motor vehicle violation. He said he treats those much differently than cases where the car is stopped because the officer observes the car swerving in and out of its lane while driving down the highway. He takes a much stricter view of cases in which there is a “drunk car” – testimony and video of swerving and other strong evidence indicating that the driver was intoxicated beyond the legal limit.
The county attorney said the horizontal gaze nystagmus test, which is often used by law-enforcement officers as evidence in these types of criminal cases, can be very subjective at times, and it can be difficult for a prosecutor to get a conviction from a jury with such sketchy evidence.
Other circumstances, can play a factor, as well, Busselman said.
He recalled a case where a man was stopped because of a burned out license plate, but the county attorney knew that the man was a decorated war veteran.
“This guy was in Vietnam,” Busselman said. “He got shot all up and he was awarded the Silver Star. Now when that guy came in here, I will confess, he had an edge because of the admiration I had for him.”
Justice is supposed to be blind, Busselman said, but sometimes there is more to consider. He said the reason Americans have rights, is because of the people who made sacrifices in World War II, Korea and Vietnam – the people who defended those same rights for all Americans.
“If this guy would have been driving down the road, weaving all over the place, that would be different,” Busselman said.
This is not to say that he does not take the responsibilities and duties of his office seriously, Busselman said. There have even been occasions when he has had to prosecute members of his own family.
While there may be cases that call for leniency, organizations such as MADD that work toward even harsher DWI punishments say that there can be a cost for leniency, as well. They say that there are cases when a court puts a driver on probation for a DWI offense, and then while on probation, drives drunk again, and gets into an accident that severely injures or kills innocent bystanders. Family members of victims in these cases are often harshly critical of a criminal justice system that allows any such drivers back on the highways.
Busselman said that a jail sentence isn’t always the best answer, though.
“I have seen people come from lock-up,” Busselman said. “Let me tell you something. They lock them up for three months, four months, five months, a year… They come out of there thirsty because they have had no benefit of any kind of treatment.”
The county attorney explained that in a case such as this, he would have tried to get the driver into a treatment program, instead of probation.
There is a great deal of satisfaction that comes along with fixing problems that stay fixed, Busselman said. He said that sometimes these solutions can lead to what everyone wants – a driver who spends a lifetime of staying sober behind the wheel.