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DUI driver in fatal crash is given 5 years

Newlywed Rebecca Gallagher was coming home from a November birthday party for an 11-year-old girl she had befriended in the Big Brothers/Big Sisters program when her car was totaled in a powerful crash caused by a drunken driver.

Gallagher, a skilled mathematician who was planning to get her teaching credentials, lived 11 days in the hospital. She even experienced some improvement in her condition before dying unexpectedly from an embolism that broke loose and traveled through her bloodstream to her brain.Juan R. Hernandez, the drunken driver who pleaded guilty to automobile homicide, a third-degree felony, was sentenced Thursday to zero to five years in prison by Judge Robert K. Hilder. The judge also said he would recommend that Hernandez serve the full term, although that is ultimately up to the Board of Pardons.

"Society has a right to say some results of conduct are intolerable and a price must be paid," Hilder said. "It's a small price to pay for a great, great loss."

The judge said Hernandez appeared to be "a fundamentally decent man" but the choices he made caused such a tragic death and so much suffering that the main priority in this sentencing had to be punishment.

Exacerbating the felony were the facts that Hernandez was in the United States illegally, had no driver's license and was driving an unregistered car.

The courtroom was filled with grieving relatives, including Gallagher's husband, Mike, and her parents.

Alan Kirkwood, Rebecca Gal-la-gher's father, told the court that his daughter had lived an exemplary life and had done nothing to bring on this tragedy. He was called to the accident scene just as rescue workers were stabilizing her before a helicopter flight to the hospital.

"Over the sound of the helicopter, I heard my daughter scream in pain and terror," Kirkwood said. "I held her hand, her screams stopped. I hope I was able to give her some comfort.

"I know I speak for my entire family when I say nothing we've ever experienced has been so devastating," Kirkwood said. "We have been robbed of her companionship."

Although Kirkwood does not believe that a five-year sentence is enough - or that Hernandez will serve even that much time - he asked the judge to impose the maximum sentence allowed under existing law as a deterrent to others who might try to drive drunk.

Hernandez, speaking through an interpreter, apologized briefly to the family and then the court. "I feel really bad about this. I can only ask God to forgive me and ask for your forgiveness. I know you have a heart, but I do, too. I can only ask forgiveness."

Defense attorney Steven Shapiro argued unsuccessfully for deportation, which was the other option available to the judge. "I don't think making an example of Juan will have an effect on people who decide to drive drunk," Shapiro said. "The problem is people who get behind the wheel of a car while drunk don't think."

Shapiro said Hernandez had shown remorse, pleaded guilty to spare Gallagher's family the pain of a trial and had held a job, all of which showed a sense of responsibility. However, Shapiro acknowledged the immensity of the loss posed by Gallagher's death. "It's absolutely the worst sort of tragedy," he said.

Prosecutor Paul Parker said deportation simply wasn't punishment enough for such a serious crime. "Just sending him away does not impose a high enough cost," he said.

After the sentencing, Kirkwood said he and his family are lobbying the Legislature to get state drunken-driving laws changed. Injuring someone while driving drunk currently is a misdemeanor, and Kirkwood would like to see that changed to a felony.

A bill that would do that, called "Becky's law," currently is going through the Legislature.

"I don't know if justice was served," Kirkwood said. "Under the circumstances, that was the most he (the judge) could do, and I am satisfied."