Prosecutors have been tough on felony DUI cases, Douglas County Attorney Don Kleine said Friday, but those prosecutions are about to get tougher.
Kleine said he is reviewing what he called his officeâ€™s â€œoccasionalâ€ practice of reducing DUIs from felonies to misdemeanors in return for a defendant successfully completing inpatient treatment.
Kleine said he fears that Mark Dahir, a man now facing his seventh DUI arrest but who never has been convicted of a felony, and others might be manipulating matters by entering treatment to avoid getting a felony conviction and the prison time and license revocation that go with it.
Kleine said he plans to charge Dahir, a vice president of Omaha State Bank, with fourth-offense DUI, a felony, after allegations that he drove erratically, passed into the opposite lane and caused a wreck that seriously injured Steven M. Murray, 48, of Omaha.
Felony DUI cases are difficult, Kleine said, because prosecutors and judges want drunken drivers to correct their underlying substance abuse problem.
That has meant that prosecutors sometimes offer to reduce a case to a misdemeanor in return for the defendant entering inpatient treatment.
Such plea bargaining could change, Kleine said Friday.
Defendants still would be encouraged to get treatment. However, prosecutors would leave it to a judge to decide whether to adjust sentences based on treatment efforts.
And defendants still would face a felony conviction and the automatic 15-year license revocation that goes with it.
â€œIt may be something where we say â€˜Hey, youâ€™re charged with a felony, you have to plead to a felony,â€™â€ Kleine said.
â€œOur goal was to make sure these people address their underlying problems. But people should just do (treatment) from the standpoint of showing the public and the court they have a problem and theyâ€™re willing to do something about it,â€ he said.
In the past five years, the Douglas County Attorneyâ€™s Office twice reduced a DUI from a felony charge to a misdemeanor after Dahir entered inpatient treatment. Omaha city prosecutors also reduced one of his DUIs in 2003.
Currently, Kleine said, his office is prosecuting 169 felony DUI cases â€” more than 10 percent of the officeâ€™s total felony caseload.
In each of those cases, the driver has been convicted of at least two â€” and usually at least three â€” DUIs in the past 12 years.
Defense attorneys say offering a reduced charge as motivation for treatment has been sensible and more practical for a system concerned with repeat offenders and overcrowded prisons.
Omaha attorney James Schaefer, who represented Dahir in the past, said Dahir was earnest in trying to conquer his substance abuse problems.
â€œNobody wants repeat drunk drivers out there on the street,â€ Schaefer said. â€œI donâ€™t want that. Prosecutors donâ€™t want that. Judges donâ€™t want that. The goal is to make sure that somebody that has a substance abuse problem gets the treatment and the help thatâ€™s needed.â€
Kleine said the system wrestles with how best to do it, especially considering that most repeat drunken drivers will return to the streets. Among the options:
A combination of jail time, probation and treatment
Ignition interlock devices, which require drivers to blow into a device before their car can be started
Kleine said his office should have secured a felony conviction against Dahir before.
â€œThe question we have to ask ourselves is â€˜Why should we take a risk on these people?â€™â€ he said. â€œWe have horrific examples of the damage repeat drunken drivers do. We have to figure out a way to stop this carnage.â€
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