Race car driver Al Unser, Jr., two-time winner of the Indianapolis 500, recently pled guilty to his second DUI, as well as Racing on a Freeway, according to the Albuquerque Journal. The judge in Albuquerque, New Mexico sentenced Unser to 90 days in jail, but one day was credited for time already served, and the remaining 89 days were suspended on the condition that Unser complete one year of probation. He was previously convicted of DUI in 2007. Unser's plea and sentencing raises some questions: Would his sentence for a second O.V.I. offense in Ohio be harsher? Why was his sentence lenient even by New Mexico standards?
Would Unser's sentence for a second O.V.I. be harsher in Ohio?
Oh yes. Drunk driving penalties in Ohio are apparently tougher than those in New Mexico. For a second offense in six years, Ohio has a mandatory minimum jail sentence of ten days. That minimum jail sentence is doubled if the breath test/blood test result is at or over .170, or if there was a refusal of the test. In New Mexico, a second offense carries a minimum jail sentence of four days.
Why was Unser's sentence so lenient, even by New Mexico standards?
Was Unser's sentence lenient? I don't practice in New Mexico, so I'm not sure exactly how things go there, but the sentence seems lenient for at least two reasons: (1) there were aggravating circumstances: he was racing another car and driving over 100 mph; and (2) despite the aggravating circumstances, his sentence of one day in jail is less than the "mandatory minimum" jail sentence for a second offense.
Readers leaving comments on a Huffington Post story seem to think the sentence was too lenient. Here are a couple of the comments.
- The length of the sentence is determined by name and income. Any other schmoe would just now be getting out of jail from the furst offense.
- Anyone else would be spending time in Crowbar College, where he should be.
Unser's sentence may have been lenient due to the uncertain strength of the prosecutor's case and mitigation by Unser while the case was pending. By the time the trial was to begin, the arresting officer no longer worked for the police department and had a pending "personnel action". With this situation, the prosecutor may have recommended a more lenient sentence than would have been recommended if there were not a witness problem. Also, while the case was pending, Unser completed an inpatient alcohol abuse treatment program.
Unser's D.U.I. case gives valuable insight on D.U.I. defense. First, different states have different sentencing schemes for D.U.I. offenses. Second, contesting the charge may positively impact the case in unexpected ways. Finally, mitigation while the case is pending may also improve the outcome of the case.