- Associated Press - Sunday, May 22, 2016

RAPID CITY, S.D. (AP) - At a full-day trial in February, a Pennington County jury was tasked to determine whether Randy L. Cowherd, 43, was guilty of driving under the influence of alcohol.

Such a trial is not uncommon in Pennington County, nor is it uncommon in South Dakota. But what makes the Cowherd trial significant is that he had five previous DUI convictions on his record.

Although their numbers are small, people who have been arrested for drunken driving multiple times still get behind the wheel intoxicated, the Rapid City Journal (https://bit.ly/1Tm9ot3 ) reported.

Chris Hall, a patrol sergeant with the Rapid City Police Department for two decades, has experienced arresting the same people for repeat DUI offenses. He even encountered one man who had dozens of DUI arrests.

How can a person with that many drunken-driving offenses still be allowed on the road?

“Exactly,” Hall said. “It’s a question we would like to know, too. A lot of that comes down to court stuff. They can take the license away. He can serve his jail time too, but it’s an offense that you can get out after a couple of years.”

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In the early morning of Sept. 19, 2015, a Rapid City police officer stopped Randy Cowherd for driving with his headlights off. When the officer approached the stopped vehicle, he detected the smell of alcohol. Cowherd had just left a bar where he sang karaoke and drank some beer and liquor, according to court records and trial testimony.

The officer conducted a sobriety test, which Cowherd failed, and he was arrested and taken to the Pennington County Jail.

About two hours after the traffic stop, blood was drawn from Cowherd to determine the amount of alcohol in his system. The specimen registered a blood alcohol concentration of 0.143 percent, nearly double the DUI threshold of 0.08 percent. A forensic chemist with the city police, who testified at the trial, said his calculations showed Cowherd’s alcohol content when he was behind the wheel would have been 0.172.

“Focus on the numbers,” Deputy State’s Attorney Koln Fink, who prosecuted the case, told the seven women and five men on the jury during his opening statement at Cowherd’s trial. “This is a simple case . I’m confident you’ll find Mr. Cowherd guilty.”

South Dakota has the ninth-highest drunken-driving rate nationwide, with 733 incidents for every 1,000 people in its population, according to a study published last August by the Centers for Disease Control and Prevention.

The state had 6,835 DUI convictions last year and 7,146 in 2014, data from the South Dakota Unified Judicial System show. Roughly 1,350 of the convictions from mid-2014 to mid-2015 occurred in Pennington County.

Cowherd’s five prior DUI convictions were amassed in a 12-year stretch: one in 1995, one in 2005 and three in 2007.

Convictions for a fourth or subsequent DUI are infrequent in South Dakota, based on state court data. Of last year’s total statewide convictions, only 185, 2.7 percent, were in that category, versus 4,569, or 66.8 percent, for a first offense.

In the last five years, the highest number of fourth-or-subsequent DUI convictions was in 2011, with 240 convictions, accounting for 3.2 percent of total convictions.

At his trial, Cowherd was the last of four people to take the stand, and he insisted he had driven sober.

Just before leaving the bar, he said, he took three quick shots of liquor, and as a formally trained bartender, he said he knew it would take five minutes for the alcohol to enter his system. Because his home was a mere 90-second drive from the bar, he thought he would arrive uneventfully before he was intoxicated.

He had driven to the bar instead of walking, he testified, because he had an ankle injury, and he forgot to turn on his headlights because he was driving an unfamiliar car that didn’t have automatic headlights.

But because a traffic stop takes time, Cowherd conceded that by the time the police arrested him, he was legally drunk.

“Risky behavior,” his public defender, Tom Diggins, said to the jury, “but it’s your job to prove whether it’s criminal or not.”

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A person’s first and second DUI offenses are classified as misdemeanors, while the succeeding ones become felonies. The maximum penalties range from one year in jail and/or a $2,000 fine (Class 1 misdemeanor) to 10 years in prison and a possible fine of $20,000 (Class 4 felony).

The severity of a person’s DUI sentence is compounded with each conviction over the past decade; convictions beyond that time frame do not accumulate in higher penalties up to a fifth conviction, said Fink, the prosecutor.

But for someone with five or more prior convictions, all cases are counted up over a 25-year period if two took place within the past decade, he said.

In addition to jail or prison time, and increasing fines, DUI convictions also affect a suspect’s driver’s license. According to state law, each time a defendant is convicted of DUI, the person’s license is revoked, from a minimum of 30 days for the first offense to at least three years for the sixth and subsequent offenses, state law says.

Those who need to drive for work, or to go to regular sobriety testing or attend school or counseling programs, may be given a driving permit by the court after they’ve fulfilled preconditions, such as a chemical-dependency counseling program.

“But just because their license is suspended,” said Hall, the Rapid City patrol sergeant, “doesn’t mean they’re not going to drive.”

Repeat DUI offenders who are caught driving while their licenses have been revoked will get jail time on top of any jail or prison time they’re sentenced to for driving under the influence. The jail time ranges from at least three days for DUI second offense to a minimum of 20 days for the sixth or subsequent offense.

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Mothers Against Drunk Driving, a North American nonprofit group, has been advocating for a South Dakota law that would make ignition interlocks a mandatory device for DUI offenders. The ignition interlock, which is wired into a vehicle’s ignition system, requires the driver to blow into it. The vehicle won’t start unless the driver’s BAC is below a certain level.

Right now, it is the court that determines if DUI offenders on South Dakota’s 24/7 sobriety program should use ignition interlocks, said the program’s state coordinator Art Mabry. Interlocks are among the five testing options available, which include once- or twice-daily alcohol testing, urinalysis, an alcohol-monitoring ankle bracelet and a drug patch. It is up to the courts to determine who should participate in the local 24/7 testing program. Under the program, violators can be immediately arrested and jailed.

“The best way to stop somebody from becoming a repeat offender is to have effective penalties on the first offense,” said Frank Harris, director of state government affairs at MADD’s national office. “The problem with an alcohol ankle bracelet, the problem with twice-a-day testing, is those approaches do not separate drinking from driving, whereas an interlock, if installed in a person’s vehicle, can separate drinking from driving.”

State Sen. Craig Tieszen, former Rapid City police chief who now heads the state senate Judiciary Committee, said he is “not convinced that it (an interlock device) is the best solution to follow” since there are many ways to get around ignition interlocks. Tieszen, R-Rapid City, said he is satisfied with the state’s existing 24/7 program but is willing to look at any new data on interlocks.

Of course, people insistent on driving can get behind the wheel of a car that does not have the device, or theoretically have someone sober blow into the device in order to get the car started.

But another lawmaker thinks the device has the potential to become part of state DUI legislation. Rep. Timothy R. Johns, R-Lead, a member of the house Judiciary Committee, said the technology has been improved over the years to provide an image of the tester, and can prevent people convicted of DUIs from repeating the offense.

The good news in the state’s fight against DUI is that as a result of ongoing programs, South Dakota deaths from drunken driving have fallen by 35 percent between 2004 and 2014, from 71 to 46 deaths a year, according to data from the National Highway Traffic Safety Administration.

Randy Cowherd’s trial, meanwhile, lasted into the evening of Feb 24. At about 7 p.m., the jury returned with a guilty verdict. Since it was Cowherd’s sixth DUI, the judge later sentenced him to six years in the state penitentiary for being a danger to society.

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Information from: Rapid City Journal, https://www.rapidcityjournal.com

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