One Lawyer's Fight

Wednesday, June 20, 2007

By Ben Cannon

Jackson Hole, Wyo.-It was a little over a year ago that sheriff’s deputies raided an annual night-before “senior skip day” high school party down Gros Ventre Road in rural Teton County. That event, which led to the arrest of 23 minors, touched off a dialogue in Teton County with students, parents, law enforcement and even Wyoming First Lady Nancy Freudenthal – who has campaigned against underage drinking – chiming in on the discussion.

Underage drinking is not, of course, an issue by any means unique to Teton County or even Wyoming; however, a 2002 study found the state to have the highest number of youths to have tried alcohol (“beyond sips”) before the age of 13, and Wyoming consistently ranks among states with the highest rates of underage drinking overall.

And regarding driving while under the influence, Wyoming is the notorious site of one of the most remembered vehicular tragedies in recent times when, only days after Sept. 11, 2001, eight University of Wyoming cross-country runners were killed when their Jeep Wagoneer was hit head-on by another student who was found to be well over the legal maximum .08 percent blood alcohol level.

Some contend that Wyoming, perhaps in the old romanticized tradition of “Western” states, is a place where self-accountability and personal responsibility still lays the law of the land, more so than any state or local governing body could or is inclined to do in this vast, open place. But that is not rhetoric lawmakers or judiciary officials are likely to embrace openly.

Teton County Attorney Steve Weichman stands out as a highly outspoken man, even beyond his elected charge to prosecute offenders, be they minors unlawfully imbibing in alcohol or persons under the influence who get behind the wheel. While Weichman does not point to the two occurrences as mutually overlapping, it is not difficult to connect the two.

Besides, underage drinkers, like their of-age counterparts, do get behind the wheel. In 2004, 18-year-old Cody Shervin was killed when the car he was driving while under the influence went off the road and fell down a 100-foot embankment, injuring two others.
The county attorney looks at an often laissez faire attitude towards underage drinking as part of a culture that will engender new generations of alcohol-related problems. And he treats driving under the influence as the greatest public menace to threaten what is generally a safe and peaceful Teton County.

But what gets Weichman the most worked-up, to the point where he can espouse his frustrations dramatically and for hours on end (he is a trial lawyer, after all), is not any abstract idea of drinking and driving or minors breaking the law, or even any infuriating anecdote of either, but what he sees as an ineffective, hypocritical system he says can hinder his ability to prosecute offenders.

“My angst is Vietnam syndrome,” Weichman said in his office last week. “We’re given an impossible job and I resent that.”

Wyoming statute has in place what is called an implied consent law that says any driver suspected of operating while under the influence has implicitly given his or her consent to submitting to a blood alcohol test. That is to say, if a person is by his or her right driving a car, it is implied that he or she will submit to a Breathalyzer if a law enforcement agent has probable cause to request it.

“I’m not aware of any statute that is more detrimental to public safety or has a higher toll in terms of human life than the implied consent law,” Weichman declared. “Anybody who asserts that that law enhances public safety is either lying through his teeth or is utterly blind with ignorance.”

Weichman contends that while the implied consent law may penalize drivers who refuse to “blow” with up to a six-month suspension of driving privileges, it can also effectively hobble an arresting officer’s ability to collect a solid body of evidence.

Before the Wyoming State Legislature passed the implied consent law, officers could seize the blood of someone suspected of driving under the influence, so long as the method could not be deemed “overly intrusive” per a standing judicial precedent.
Some states, as an alternative to license suspension, treat the refusal to take a blood alcohol test with penalties similar to a DUI itself.

Jackson attorney Bob Horn, who has over the years represented dozens of DUI cases in Wyoming, Utah and Idaho, feels the implied consent law affords the individual his or her most valuable tool when facing a potential DUI case.

“People who are charged with DUI should summon their rights,” Horn said. “The best thing you can do is give them your license and tell them your name and don’t tell them anything else.”

Agreeing with Weichman’s analysis of the law, Horn added – though from a defense attorney’s perspective – that refusing to take a blood alcohol test removes a prosecutor’s most potentially damning piece of evidence.

“I don’t think that’s dysfunctional at all,” he philosophized. “[The accused] have the opportunity to put the government under the test.”

Horn also said, though, that “if I had my druthers,” the Legislature would hand down the single boldest piece of anti-DUI law, one yet unprecedented in any state, due in large part to big-group alcohol lobbyists: a zero tolerance policy.

“On a daily basis, there is nothing that puts the people of Teton County at risk more than drunk driving,” Horn offered.

On the enforcement side, the point of entry at which offenders get put into the judiciary system, Teton County’s law enforcement heads can see fault in the law, but offer a less dramatic, perhaps more nuanced take on the effectiveness of Wyoming statute and judiciary doctrine.

Jackson Police Chief Dan Zivkovich, for his part, finds DUI laws to have some flaw, but less so than minor under the influence (MUI) laws.


“I think ineffective is too strong a word” for DUI and MUI laws and their enforceability, Zivkovich said. “But they certainly aren’t perfect, especially with the underage drinking.”
Zivkovich, who said he believed in a zero tolerance policy in regards to underage drinking, added that MUI laws “are a lot more onerous than they need to be.”

What Weichman would describe as “a real eye opener” to MUI law were the judicial proceedings following last year’s large underage drinking bust. Many of the students, those who did not enter a guilty plea, enlisted (or rather, their parents enlisted) legal counsel to contest the charges. Lincoln County Judge Frank J. Zebre, who presided in lieu of Teton County’s 9th Circuit Judge Timothy Day, who had a conflict of interest, suppressed much of the prosecution’s evidence, namely blood alcohol results the judge found to have been unjustly coerced out of minors not afforded their due rights.

But what sounded the knell to the prosecution’s case was Zebre’s invoking of May vs. Wyoming, a 2002 Wyoming Supreme Court ruling that, when applied to underage drinking law, gives the prosecution and law enforcement the burden of proving not only that a minor was under the influence, but that person was drinking what statute defines as an alcoholic drink or a malt beverage, or both.

“How do you prove beyond a reasonable doubt what exactly that person was drinking?” Weichman asked. “We have an MUI statute that is an insult to intelligence and creates more of a license for minors to drink than it does prohibit it.”

Zebre dismissed all of the charges except one (that case is set to go to trial soon), and Weichman, as a fair gesture on his part, allowed an out for the minors who had “taken their medicine” and pleaded guilty without going to trial.

Attorney David Defazio represented eight of the 16 minors who went to trial in the Gros Ventre bust. “I know that the prosecutor has put a spin on it that the judge wanted to hear what [the defendants] were drinking,” Defazio said. But, he said, sheriff’s deputies “attempted, in my opinion, to create a much more intimidating presence to the kids than they needed to … thus eviscerating their constitutional protections.”

The defense attorney added, “You can’t stop teen drinking,” but offered that “the prosecutor’s office in general does a pretty good job” of processing a hefty volume of all matters of cases.

Horn echoed Defazio with regard to what the defense looks for in a majority of MUI cases: “From a defense perspective, the problem I see with prosecuting MUI or minor in possession is that the police don’t see the minors as having the same rights we have.”
But Weichman remains frustrated. “I never imagined an MUI would be so hard to prove. I started to find that the problems with our DUI scheme are as dysfunctional as our MUI scheme. We don’t have a statute making it a crime to drink … The people who talk about [underage drinkers’] rights have totally missed the boat. They’ll end up with an alcoholic who totally understands his rights.”

Greg Blenkinsop is an attorney involved with Teton County DUI/Drug Court, a program that aims for treatment and intervention for individuals in legal trouble from substance abuse related offenses.

“You’re not going to lock your way up out of the problem,” the occasional public defender said. And “the MUI statute is just plain flawed,” he added, citing the “loophole to drink inside of a house” for minors. “I mean, this is a Western state with a libertarian tradition. Wyoming is not always quick to legislate our way out of problems.”

What Blenkinsop advocates, especially in fiscally endowed Teton County, is more resources be put into intervention and rehabilitation programs, which he said — at least in drug court — have proven successful.

“Another thing that’s been on my mind with DUIs: I mean we’ve got more money and resources than anywhere,” he said. “Why don’t we have a START bus that runs when the bars close? Why isn’t there a public transportation system for when people are intoxicated and most likely to get behind the wheel and drive home?”

Understandably, all parties involved in this discussion understand no one law, measure, or enforcement arm is going to fix the woes associated with alcohol: the dangers of impaired driving, or youth potentially sewing the seeds for an affair with which adults not uncommonly struggle.

“That’s the insidious nature of impairment,” the county attorney said. “People who really want to be good citizens and law abiding citizens get DUIs every week. You don’t have to be a dirtbag who burglarizes or tries to set fires or tries to cut someone up with a knife to get [charged with] impaired driving.”

Teton County Sheriff Bob Zimmer chimed in on the idea of a holistic approach, saying the discussion about drinking “has to start in the home, in my opinion. We’re going to do our part, but we’re not the save-all portion of society that’s going to stop kids and alcohol.

“Does the system work?” he asked “I don’t know – it’s got some bumps in it, but it’s a lot better than what you would find in a lot of other places.”


Photo by Derek Diluzio
Does Wyoming alcohol law stack cards against County Attorney Steve Weichman and law enforcement?

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