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View Full Version : Judge refuses to convict Lawyer of Felony DUI


Medula Oblongata
01-06-2007, 01:52 AM
Published Saturday
January 6, 2007

Judge declines to convict attorney of felony DUI

BY TODD COOPER


WORLD-HERALD STAFF WRITER

A Douglas County judge again has declined to convict an Omaha attorney of felony fourth-offense drunken driving.

Though Willow Head has been ticketed six times for drunken driving, District Judge Peter Bataillon ruled this week that she was guilty of third-offense drunken driving.

Head will be sentenced in March.

With her misdemeanor conviction, she faces probation or up to one year in jail, a license suspension and having her car immobilized.

Had Bataillon convicted her of felony fourth-offense drunken driving, she would have faced up to five years in prison and a mandatory 15-year license revocation.

Under state law, prosecutors can use DUI convictions from as far back as 12 years to try to enhance charges and punishments for serial drunken drivers. After three valid convictions, a defendant faces a felony drunken driving charge on the fourth.

Head was driving 12 mph over the speed limit and down the wrong side of the street in July 2004. She failed field sobriety tests after being pulled over near 114th and Lamp Streets.

Prosecutors charged her with felony fourth-offense drunken driving and cited several priors. Before the 2004 arrest, Head, 35, had been charged with drunken driving in 1992, 1993, 1994, 2002 and 2003.

She entered a diversion program that wiped out her 1992 DUI - so prosecutors couldn't use that one to try to enhance her sentence.

And Bataillon ruled this week that two other convictions couldn't be used to enhance her sentence. Bataillon issued a similar ruling 20 months ago, but an appellate court said his decision then was premature.

Douglas County Attorney Don Kleine said Friday that prosecutors disagree with the judge's decision and will appeal. However, he said, they must wait to appeal until after Head is sentenced.

Head's attorney, James Schaefer, said Bataillon's ruling was correct and he is confident it will survive an appeal.

On two pivotal points, Bataillon ruled that he:

Couldn't count Head's 2002 conviction because the Nebraska Supreme Court ruled in 2003 that Omaha's drunken driving ordinance didn't comply with state law.

Prosecutor Jim Masteller had pointed to a subsequent Nebraska Supreme Court decision from July. It said that defendants cannot use the 2003 ruling to attack the existence of prior convictions.

The high court ruled that judges are allowed to consider such convictions to enhance sentences.

Couldn't consider her 1993 conviction because another judge, Jeffrey Marcuzzo, had ruled it didn't count for enhancement purposes.

Why Marcuzzo threw out the 1993 conviction is unknown.

Schaefer has said he believed there were problems with the authentication of that conviction. Among other things, prosecutors must be able to show, from the court record, that the defendant was represented by counsel and informed of constitutional rights.

But prosecutors argued that there was nothing wrong with the record of that conviction. Masteller presented evidence that Head was represented by counsel and that her rights were preserved.

Bataillon didn't delve into whether he believed the 1993 conviction was valid.

The judge instead said he was barred by a legal doctrine - called res judicata - from second-guessing Marcuzzo's decision to disregard that conviction.

The doctrine is designed to prevent defendants - or prosecutors - from going from judge to judge until they get a ruling that benefits their interests.

http://www.omaha.com/index.php?u_pg=1636&u_sid=2309027&u_rnd=4970526

I know the prosecutor. I'm working with him in another case against my Sudanese refugee troublemakers.. I'll ask him what the skinny is on this one and let y'all know what he says.