Ruling: DWI not violent felony
U.S. Supreme Court hands down decision
in Vanderwagen man's case

By Bill Donovan
Staff writer

GALLUP — Should drunken driving convictions count as violent felonies? Should DWI convictions enhance prison sentences?

The U.S. Supreme Court ruled Wednesday they should not, but McKinley County District Attorney Karl Gillson said his preliminary reading of the ruling would indicate that he would have voted with the minority in this case.

The justices, by a 6-3 vote, said that even though great harm can result from drunken driving, it is different from other crimes that involve purposeful action.

The problem with that opinion, said Gillson, is that a driver is aware that if he gets drunk, he can cause great bodily harm, even death, if he drives while drunk.

The case that led to the Supreme Court decision was a New Mexico case involving a man who was tried in U.S. District Court.

The plaintiff, Larry Begay of Vanderwagen, had three felony convictions for drunken driving in New Mexico when he pleaded guilty to possessing a gun, which is illegal after a felony conviction.

The Armed Career Criminal Act makes defendants eligible for longer prison terms if they have three prior convictions for crimes that are either violent felonies or serious drug offenses.

Begay was accused of threatening two family members with an unloaded .22-caliber rifle during a night of drinking. He demanded money, threatened to kill them and pulled the trigger.

Gillson said the case came from the reservation, so it was tried in federal court where U.S. District Court Judge William Johnson ruled in 2005 that Begay’s drunken driving history, which included 22 arrests and 12 convictions in 22 years, constituted a crime of violence.

Margaret Katze, a federal public defender, said that while DWI can present a threat of serious physical injury to others, it differs from violent crimes such as burglary or arson.

“Our argument was that DWI is so different,” she said.
Gillson disagreed, pointing out that even though it wasn’t considered a violent crime, DWI should be included as a serious drug offense, since alcohol is a drug.

This is not expected to have much of an effect in New Mexico because state law does not allow past DWI convictions to be used to enhance convictions here except in one area. Someone who has a prior DWI and then is convicted of vehicular homicide receives an enhancement of two years for every prior DWI conviction.

The theory there, said Gillson, is that the person would have learned something from his prior convictions. If he didn’t, he deserved the enhancements to his prison sentence.

Gillson said a preliminary reading of the Supreme Court ruling indicated to him that it would not have any effect on that state law, but he said that when the district attorneys in New Mexico have their next meeting, this should get a lot of discussion.

As for Begay, he was serving a 15-year sentence in federal prison. Now he is to be resentenced, and Katze said the range without the career criminal enhancement is 3.5 to just more four years.

The Associated Press contributed to this story.