An Omaha, Nebraska man was recently sentenced to a lengthy term of probation after pleading guilty to motor vehicle homicide while driving under the influence, according to the World-Herald. Given that he was facing a potential term of incarceration of 25 years or more, his five year probation only sentence seems lenient in lieu of the fact that he was responsible for a fatal DUI crash.
According to news reports at the time of the initial crash, 24 year old Tony Carroll lost control of his Jeep while heading eastbound on Lake Street, struck a wooden utility pole east of North 42nd Street and rolled over onto a fence, landing on its top in the early morning hours of January 18th of this year. At the time, he had two passengers in the vehicle, 36 year old Jamie Gamble and 31 year old Megan Jackson. Jackson was ejected from the vehicle and pronounced dead at the scene. Gamble was treated at a nearby hospital for a hip injury.
Records indicate that Carrol had a blood alcohol content of 0.103 percent when tested following his arrest. The legal limit in Nebraska is 0.08 percent, meaning his BAC was only slightly over the limit at the time he submitted to the chemical test. Although details about Carroll’s defense strategy were not released to the press, his BAC content may have been a potential weakness in the state’s case against Carroll, ultimately leading to a seemingly lenient sentence.
A commonly used defense strategy in situations where a defendant tests slightly higher than the legal limit is known as the “Rising Alcohol Defense.” In essence, the Rising Alcohol defense is based on the way in which alcohol metabolizes in your system. It takes roughly an hour for alcohol to make its way through your system after consumed and into your bloodstream. Therefore, if a defendant consumes alcohol and then gets behind the wheel of a vehicle, the driver’s true BAC level may be lower at the time he/she is operating the vehicle than a subsequent test will show an hour or so later, assuming the driver is arrested in the interim.
There is no way to know if this defense was used in Carroll’s case; however, we do know that he was originally booked for motor vehicle homicide, felony DUI causing serious bodily injury, willful reckless driving and not having a driver’s license. Nebraska Revised Statute 28-306(3)(b) makes it a Class III felony “if the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06.” NRS 60-6,196 is where Nebraska’s prohibition against driving under the influence can be found. As a Class III felony, Carroll was facing up to 25 years in prison if convicted; yet, when he pleaded guilty recently he was sentence to just five years of probation.
Though we will never know the details of the plea negotiations that resulted in Carroll’s five year probationary sentence the outcome proves that there are no “standard” plea agreements. It also highlights the importance of retaining the assistance of an experienced Nebraska DUI defense attorney if you are arrested and charged with driving under the influence of alcohol or drugs. Contrary to what the police and the prosecutor would have you believe, an arrest does not always mean you will be convicted and a conviction does not always mean you will be sentenced to maximum potential penalty.