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Disorderly-conduct charge stalls Gardner’s DUI case

Misdemeanor dismissal was likely until fracas involving boy age 9

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PROVO — He'll face no more alcohol testing, and his future conduct will have independent consequences, but Utah County Commissioner David J. Gardner must wait a bit longer to find out if his drunken-driving conviction from last year will stand or be dismissed.

Gardner's no-contest plea to the Class B misdemeanor likely would have been dismissed Monday had the two-term Republican commissioner not been cited two weeks ago by Springville police for disorderly conduct, another misdemeanor offense.

Because the new alleged offense happened before Aug. 12, the day Gardner's plea-in-abeyance period expired on the DUI charge, Juab County Attorney David Leavitt opposes having the drunken-driving conviction dismissed until there is a resolution on the disorderly conduct charge.

"We will have to wait to see what happens with this new charge," said Leavitt, who was asked to prosecute the drunk-driving case because Utah County prosecutors wanted to avoid any appearance of a conflict of interest.

Gardner, a licensed family therapist, is scheduled to appear Aug. 28 in Springville Justice Court on the disorderly conduct allegation, a Class C misdemeanor.

Gardner's attorney, Mike Esplin, filed a motion recently with Pleasant Grove Justice Court Judge Brent Bullock asking for dismissal of the DUI charge saying Gardner has met the terms of his plea bargain. According to terms of the Nov. 12, 1999, plea agreement, the no-contest plea would be held in abeyance for nine months, after which the charge would be dismissed if Gardner abstained from alcohol and violated no laws during that time.

Because none of the alcohol tests administered to Gardner during the nine-month period came back positive, Esplin says the DUI charge should be dismissed.

Bullock, who presides over the case because of Gardner's conflict with the county justice court, will hold a hearing Aug. 24 to decide whether the new allegation is sufficient reason to put the DUI conviction on hold pending resolution of the disorderly conduct charge.

Gardner is accused of threatening a 9-year-old boy July 29 in his eastside Springville neighborhood. According to police reports, Gardner jumped his neighbor's fence, picked up the boy and poked him in the stomach while berating him for an argument involving a broken flashlight that occurred the night before between the boy and Gardner's 13-year-old son.

If Gardner is found innocent of the disorderly conduct charge, then Leavitt says he will withdraw his opposition to having the DUI charge dismissed. If Gardner is convicted of the new offense, then Leavitt will ask that the DUI conviction stand.

While most misdemeanor offenses are resolved before trial through plea negotiations, Gardner's DUI case is likely to go to trial because of the impact a conviction or guilty plea might have on the DUI case.

Even though Leavitt says the disorderly conduct allegation should put the DUI conviction on hold, the new charge will not extend the probation period for the DUI case.

"We won't give him any more tests for alcohol," Leavitt said.

The drunken-driving charge stemmed from a bizarre incident on March 22, 1999, where Gardner swerved his car off a rural road west of Spanish Fork and into a field, igniting a grass fire. Police say Gardner, who was on his way to a meeting with south Utah County mayors, tried to stomp out the flames, burning his feet.

When officers arrived they smelled alcohol on Gardner's breath. He first told police he had some vodka with his lunch. He later said he accepted a drink from a hitchhiker he had picked up earlier that day.

Two blood tests administered to Gardner came back with different results. One test showed his blood-alcohol level at 0.083 percent, barely above the legal limit. A second test showed a level of 0.099 percent.


E-mail: jimr@desnews.com