Stalled DUI appeals in Harrison County allow drivers to keep driving

March 30--Drivers who appeal a DUI in Harrison County Court often drive for years without losing their licenses while their cases sit in limbo.

Reports show 163 appeals from city court and justice court cases remained unresolved as of January.

One has lingered as long as 12 years.

The issue of delays came up after Alan Weatherford began attending DUI hearings and requesting copies of court records. The former Gulfport police chief became an advocate for sober driving after his daughter was killed by a drunken driver.

The documents show dozens of cases with little or no court action. Some have been set for trial several times. Some appear to have a resolution, but attorneys have not prepared the final order for a judge's signature.

"I can't fault the judges," Weatherford said. "The judges are fair. They have court administrators, but they have no law clerks. They depend on attorneys to prepare their orders."

Court administrators, who handle non-judicial tasks, are expected to expedite the disposition of all cases. They have reports that show how long appeals are running, but many delays appear to be beyond their control, Weatherford said.

He suspects defense attorneys are

delaying cases to keep their clients driving. Meanwhile, he said, drivers prone to drive impaired jeopardize the public's safety.

Drivers who appeal a DUI conviction or plead no contest before appeal don't lose their license unless they lose their appeal.

"The cases are not being tried in a timely manner," Weatherford said. "The system is not working as it should and it is not fair."

A case in point is the recent appeal of former 3 Doors Down band member Todd Harrell, still facing a second DUI charge in D'Iberville and a drug-related vehicular homicide charge in Nashville. Harrell lost the appeal of his first DUI charge in a bench trial held less than four months after his appeal was filed.

"If Todd Harrell can get an appeal in 119 days, why can't everyone else?" Weatherford said.

The county's oldest appeal involves a man whose blood-alcohol content level was 0.27 after his 2001 arrest in Biloxi. He pleaded guilty in 2002.

Records show the man's attorney was to prepare the final order for the judge's signature. The order was filed March 6, 12 years later. The order sends the case back to city court for enforcement.

Rush to close cases

Weatherford has spent hundreds of dollars for copies of court records.

"There's a big rush now (to clear old appeals) because the courts know I'm watching," he said.

He said a prime example of delays is the case of a man first arrested on a DUI charge in Long Beach in 2009. The man also was arrested on DUI refusal charges in Harrison County and Long Beach in 2010 and 2012. He appealed all three.

The outcome of his first appeal had not been filed as of Jan. 16. He lost his second appeal in 2011. Records show plea negotiations on the third appeal are pending. It's unclear if the first appeal was upheld, which could make his third charge a felony.

Recent efforts to resolve appeals also reveal some attorneys' inattention to details, Weatherford said.

A judge on March 12 signed an order to dismiss an appeal against a man arrested in Biloxi in 2006. Weatherford said a death certificate had been sitting in the case file for a year, but it belonged to a different man by the same name. The judge is resolving that, he said.

A commercial truck driver from Oklahoma was placed on the docket Feb. 14</chron> from a 2004 arrest in Harrison County. His blood-alcohol level was 0.17. His appeal was set for trial four times. Officials learned he died in 2011.

Stalled cases

Many other cases appear to remain stalled.

One woman's appeal has dragged on for seven years. She was arrested in Biloxi in 2007 for speeding -- 65 mph in a 35 mph zone -- and for refusing a DUI test.

She pleaded no contest and appealed it. A bench trial was set in 2008 but her attorney didn't show up. The judge said the docket was too crowded to wait for him. The trial hasn't been re-set.

Another woman's appeal from 2011 in Gulfport may have a different outcome if it can fall under the conditions of a new law effective July 1. The law will allow DUIs under some circumstances to be non-adjudicated. If a defendant abides by a judge's conditions, the charge can be dismissed and won't show up on criminal records.

Court papers show a part-time prosecutor, who no longer works for city court, offered a deal to dismiss the woman's appeal provided she attend the required classes and receive an alcohol evaluation.

In March, the prosecutor who took over the case refused to go along with the deal without consulting with his boss. The woman's attorney has asked a judge to honor the previous prosecutor's agreement or postpone her trial until after the new law goes into effect.

Weatherford said it's not the first notable deal he's seen.

A man, arrested for DUI refusal in 2010 in Biloxi, pleaded no contest in city court. On appeal in 2012, a prosecutor recommended the case be dismissed if the man pleaded guilty to DUI first offense followed by six months of good behavior. Records show the man took the deal.

Busy case load

DUI appeals are a small portion of the work in county court, said Lenora Melton, court administrator for Judge Robin Alfred Midcalf.

Midcalf was not available for comment, but according to Melton, 6 to 8 percent of the court's total cases are misdemeanor criminal appeals, and DUI appeals are a small portion of that.

"Until late last year, Judge Midcalf handled 60 percent of the civil cases and all of the DUI-first appeals," Melton said. "The case load was reconfigured, with Judge Gaston Hewes picking up more cases."

"DUI appeals may move more quickly this way," Melton said.

Attorneys who want a trial date for an appeal don't have to wait to appear before the judge for a status check.

"They can call me at any time," Melton said.

Defense attorneys say appeals are delayed for many reasons. Court dates often conflict with other court dates. A client quits paying or hires a different attorney.

The two most common reasons are waiting for lab tests or for witnesses who are in the military or have moved away. Sometimes the original DUI officer can't testify.

"There's a high turnover of trained and certified DUI officers," attorney Jim Davis said. "It is a crappy, crappy job. Who wants to spend an eight-hour shift dealing with drunks who are excessively abusive? After a couple of years, the DUI officers find a job outside the jurisdiction and we can't subpoena them."

Also, municipalities don't pay enough to fully staff their courts and so rely heavily on part-time prosecutors, Davis said.

When a DUI is appealed, the original court must send a prosecutor to handle the case in county court. Davis said it can be hard to find a prosecutor to take an appeal to court.

"Often times, when I go to file for discovery, the court doesn't even know who will prosecute the case," Davis said.

Appeals without a key witness or a lab test often are dismissed or not prosecuted.

Few judgments in county

Reports from county court show 65 cases tried in the past four years resulted in convictions. About 185 cases, nearly 60 percent, were dismissed by a judgment or "nolle prossed," meaning not prosecuted. Only 11 defendants, about 4 percent, were found not guilty.

"A dismissal or nolle prosequi, in my mind, shows the lack of ability to prove the case," said attorney Wayne Woodall.

"Most city courts have a very high conviction rate, but county court judges aren't employed by cities and are not serving at the pleasure of a mayor. They are bound by the law but are not so much concerned about the politics of keeping an officer happy."

Woodall said he expects more DUI defendants to file appeals because of the upcoming adjudication law.

"At the end of the day, a driver suffers all the same consequences -- pay a fine, get rehabilitation, go to drunk driving school and the MADD classes and lose the license for a period of time," Woodall said.

"But it won't have an adverse affect on a job or an insurance rate and could make a difference in a family's primary wage-earner's ability to support the family."

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