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Footnotes on senior deputy prosecutor’s DUI

November 29th, 2013 by Chris Henry

When we wrote about a Pierce County court giving a Kitsap County senior deputy prosecutor treatment for alcohol addiction in lieu of punishment, a number of readers railed against the deferred prosecution deal.

“She had a prior alcohol related incident where charges were reduced!! She was driving drunk with two 3-yr-olds in the car!! Why was deferred prosecution even on the table?” commenter SS487 asked.

I brought readers’ concerns to Pierce County Deputy Prosecutor Tim Lewis. In a nutshell, he said Barbara O. Dennis received no special consideration and only got the concessions to which she was legally eligible under state law.

“The way we approached this case is no different from how we approach any other DUI that comes through our office,” Lewis said.

The implication of Lewis’ statement is that anyone under similar circumstances should be able to expect the same treatment. Here are details of Dennis’ case and Lewis’ answers to questions raised by how it played out in court.

Dennis, 42, was driving Oct. 9 on Bond Road when her van rear-ended a Volvo that had stopped for a car that was turning. A Washington State Patrol trooper who responded noted Dennis smelled of alcohol. A test at Kitsap County Jail after her arrest showed blood alcohol levels of 0.144 and 0.134, more than the 0.08 legal limit. Two 3-year-olds were riding in Dennis’ car at the time of the accident.

The Kitsap County Prosecutor’s Office referred the case to Pierce County to avoid a conflict of interest. On Oct. 22, Dennis was charged with driving under the influence.

Dennis was charged with DUI in 2007 by Pierce County prosecutors. The charge was reduced to first-degree negligent driving, an alcohol-related misdemeanor, after Dennis complied with certain court-ordered conditions.

Considering her prior alcohol-related offense, why was deferred prosecution an option on her second DUI?
The 2007 negligent driving charge does count as a prior DUI, Lewis said, but Dennis at the time did not seek a deferred prosecution (treatment in lieu of jail time and other punishment). A defendant is eligible for only one deferred prosecution ever, and most defense attorneys will advise clients, “Don’t use it for your first DUI. Keep it in your pocket,” Lewis said. Most most defendants he’s seen seeking deferred prosecution are looking at their second or third DUI.

To be eligible for a DP, the defendant must admit culpability, waive their right to a trail by jury and sign a statement agreeing that addiction to alcohol (or drugs if that’s the case) was a causative factor in the crime. They must also agree that without treatment they are highly likely to re-offend.

“You’re really coming before the court and doing a mea culpa,” Lewis said.

The theory behind the deferred prosecution is that it’s better not only for the defendant but also for society to have them seek treatment for their addiction and hopefully prevent future crimes.

If the defendant lapses during treatment or otherwise fails to fulfill terms of the court, they go back to square one legally speaking. The judge then has the discretion to impose the maximum penalty allowed.

The law, however, gives the court little discretion to deny a deferred prosecution if the defendant meets the qualifications, Lewis said. If the treatment plan satisfies the statute, “the court shall” grant the deferred prosecution, the law says.

How did Dennis get the 2007 DUI charge reduced?
Dennis entered into a pretrial diversion agreement with the court, meaning if she stayed out of trouble and fulfilled other terms imposed by the judge — a litany of things, Lewis said — the charge would be reduced to first-degree reckless driving, an alcohol-related misdemeanor. Again, said Lewis, this was an option that was available to Dennis by law; not because she is a deputy prosecutor.

“It’s a matter of statutory entitlement,” Lewis said.

State law says defendants facing a misdemeanor or gross misdemeanor (as Dennis did) are eligible for a deferred prosecution. Those charged with a felony DUI are not. Under what circumstances is a DUI charged as a felony?
In Washington State, one can have up to four DUIs within a 10-year period before the subsequent charge becomes a felony. Washington is the only state that allows that many prior DUIs. The number in other states ranges from one to three.

A DUI will automatically be charged as a felony in Washington if a defendant has a prior conviction of vehicular assault or vehicular homicide, or if they are a juvenile.

Was the fact two toddlers were in the car taken into consideration?
Yes, Lewis said. The prosecutor’s office charged it as a DUI with the “aggravator” of having children under the age of 16 in the car. According to Lewis, Dennis was booked into jail with child endangerment recommended as a separate charge. The Pierce County Prosecutor considered making the two charges separately, but “the aggravated DUI carries more of a penalty” than charging the DUI and then child endangerment, Lewis said. Although Dennis will not be subject to the penalties if she completes the deferred prosecution, it gave the prosecutor’s office a bigger hammer to hang over her head, so to speak (my words, not Lewis’).

Were injuries to the Volvo driver factored in to the charge and plea deal?
The Kitsap Sun heard from the driver of the Volvo, who said she was injured and the car totaled. According to Lewis, none of the information the Pierce County Prosecutors Office received indicated that the victim’s injuries meet the threshold of the law for vehicular assault. The threshold is “substantial bodily harm,” which is defined as, “bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part.”

I hope this offers some clarification.

Chris Henry, reporter

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7 Responses to “Footnotes on senior deputy prosecutor’s DUI”

  1. Ducttapeo1 Says:

    Chris, I’d point out a couple of things, starting with the prosecution. If there wasn’t any special considerations for Dennis, why then did the case need to leave Kitsap County. In the McCarthy criminal case, the guy from Port Orchard, the conflict was noted and a special prosecutor was brought in. While I would agree with how you’ve fleshed out the process, it nags at me that she wasn’t tried here, because her job requires her to prosecute others, here.

    As for the endangerment of the toddlers, had that been a separate charge, rather than an “aggravating factor”, wouldn’t that charge alone require some sort of screening by social services? And that charge would have been on her record permanently?

    Now for the Volvo. If that were presented locally, yes the car was totaled. Based upon the description, could you define totaled? As in, was the front, rear end collapsed, disfigured? Was the frame bent in one or more places? Finally, were any of the axles bent, or broken? Considering that vehicle has received a higher safety rating for surviving a crash, a lot of people would feel that Lewis let her off easy.

    Based upon previous incidents with military personnel and DUI’s in this county, not only has she retained her job, but she has avoided jail. The Navy, in the past week, just fired a Squadron Commander, for his FIRST DUI.

    I think for the sake of clarity, it might be appropriate to post the arrest reports from both DUI’s, and the respective plea agreements, along with photos of the totaled vehicle (provided the victim is willing). Then we can look at what at the same stuff Lewis had, and make our own conclusions.

    Is this an attempt at a public shamming? No, I think this is an important position of responsibility in our government. This person is unelected and needs to be held to a very high standard of professional conduct. This really is Dennis the Drunk Driving Menace…..

  2. Chris Henry Says:

    Ducttape – Thanks for your reply to this post.

    Regarding the McCarthy case (PO police officer convicted of pushing his girlfriend out a two-story window): for what it’s worth, the state Attorney General’s Office took over prosecution of the case because of potential conflict of interest in that Kitsap County deputies responded to the report of the assault. The case was tried in Kitsap County Superior Court.

    Regarding Ms. Dennis’ case, I have requested the entire case file, which should include the Washington State Patrol report on the collision. I won’t commit at this time to post the entire report, but I will review and post what is relevant. Even if the information on the children doesn’t come redacted, the Kitsap Sun has policies about protecting the identity of minors. In a case like this, I think we need to especially mindful of weighing the public’s need to know against the best interests of the two toddlers.

    I understand that some people, yourself included, find the outcome of this case unsatisfactory. Perhaps the true test of justice will be the outcome of the treatment plan to which Ms. Dennis agreed. Information on this will be a publicly available record, as well.

    Chris Henry, reporter

  3. Ducttapeo1 Says:

    Chris, here’s some further thoughts in response to her treatment and continued employment.

    I think it would be appropriate to disclose to the people that Ms. Dennis is the supervising prosecutor for the Wendy Stevens case. She approved the plea deal.

    Second, in reviewing the county prosecutor’s comments for retaining Dennis, Russ has said her performance has been acceptable. I don’t agree with that assessment.

    Chris, you have also covered the recent turmoil with regard to the Kitsap Humane Society. Specifically, the Bailey animal seizure case in Olalla, the case of Doug Bolds not getting his dog back, and the lack of invoices, yet demand for payment in Bremerton, that was disclosed by Becky Hassert.

    Chris, correct me if I’m wrong here, but Dennis was admonished by Judge Jahns in the Olalla case, with the case being dropped and the Baileys receiving restitution. And isn’t she connected to those other cases as well?

    Going through that past three year history, she’s received numerous court continuances for personal issues, and missed work days for health reasons. The serious questions that need to be asked, concern when did the judges, her boss, and coworkers know she had substance abuse issues. That’s going to be found in corresponding emails and in the court calendars.

    While yes, I would like to see Dennis to be successful in her treatment program, but our system of justice, and the responsibilities of her position, demand a higher standard of accountability, than what she’s been performing at.

    Thanks for reading this Chris.

  4. Mark Fischer Says:

    In reply to Ducttapeo1 Says:
    “Now for the Volvo. If that were presented locally, yes the car was totaled. Based upon the description, could you define totaled? As in, was the front, rear end collapsed, disfigured? Was the frame bent in one or more places? Finally, were any of the axles bent, or broken? Considering that vehicle has received a higher safety rating for surviving a crash, a lot of people would feel that Lewis let her off easy.”

    The definition of totaled is not what you think its. Generally it based on the repair cost vs retail value of said vehicle. The range for insurance comapanies is 51 to 80% of retail value.

    For example a 1994 Volvo 850 Turbo with a Value of 3700.00 has 2400.00 of damage is considered a total economic loss but with a 2nd estimate of 1900.00 that falls under the total loss rating.

  5. Sharon O'Hara Says:

    Good job, Chris Henry, Reporter.
    Its about time we had followups to important stories and you’ve done it plus gone the extra step to investigate further.
    Sharon

    PS: Do a piece on meat baby food someday and see if there is a relationship between obesity in children and the fact you can only buy Gerber meat baby food with GRAVY. What are they thinking?!
    Ms. Molly is a sick girl and she won’t eat and one of her vets recommended I try meat baby food and my shock at being unable to buy meat without the gravy and people wonder why kids are too fat….so far she is eating cooked hot dogs and Alaska Wild Salmon in cans. Expensive cans…but she is eating a little.
    she wouldn’t eat the G. Beef with Gravy… and doubt she would touch the other meats – all with gravy!

  6. Paul Says:

    You can pour honey on dog droppings all you want, still smells like CR__. You should be ashamed to be part of this travesty of justice, Kitsap, Pierce and WSP.

    Paul

  7. Michael Says:

    It seems to me fairly obvious why she wasn’t tried “here.” All the prosecutors in Kitsap County are her work colleagues. It is simply assumed she can’t get a fair trial here because she would be prosecuted more leniently by her buddies. In other words, it is much more likely that she would get an unbiased (and presumably harder time of it) if she were tried by a jurisdiction that had no ties to her. If she had been tried here, ductape, wouldn’t you have been the first to complain?

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