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A Demo likely to prosecute Gardner's original DUI case

PROVO — Because of public perception that Utah County Commissioner David J. Gardner received preferential treatment on his recent drunken driving conviction, a prosecutor with a different political affiliation will likely take over Gardner's original DUI case.

Special prosecutor David O. Leavitt, the elected Republican Juab County attorney, has asked a couple of Democratic attorneys from Carbon and Weber counties if they would be willing to prosecute the embattled Republican commissioner. Leavitt, who agreed to prosecute the 1999 case because of conflicts Utah County prosecutors have with the commissioner, hopes to find a new prosecutor by next week.

After Gardner's conviction last month of driving drunk in Provo, and his subsequent sentence of serving two days in a jail work diversion program, public outcry was that the second-term commissioner was cut a good deal and given a light sentence.

Statistics show and attorneys say, however, that Gardner received the standard sentence given to all first-time DUI offenders. Even state code says "The court shall, upon a first conviction, impose mandatory jail of not less than 48 hours."

And the fact that Gardner was given work diversion instead of two days of incarceration is also not rare. Prosecutors from throughout the state say that two days community service in lieu of jail time on a first DUI conviction is normal.

Because Gardner's original plea in abeyance to the 1999 charge was later revoked and then appealed from the justice court to district court, the case is considered unresolved and starts anew. His guilty plea to the October incident stands as his first alcohol-related conviction.

Even though statistics show Gardner's sentence was standard, Leavitt still finds himself in a precarious situation because of public sentiment. Leavitt says the 1999 case against Gardner is weak because of faulty blood tests. Two tests, administered more than an hour after he was detained, showed different blood-alcohol-level results.

If Leavitt decides a plea deal like the one offered to Gardner last year is the best legal remedy to the case, because of the weak evidence, some might view that decision as one Republican official doing another a favor. In that original deal, Gardner was allowed to enter a plea in abeyance that would have resulted in the class B misdemeanor being dismissed had he violated no laws for nine months. However, the deal was voided when Gardner was convicted of disorderly conduct for berating a neighbor boy.

If Leavitt takes the case to trial and Gardner is acquitted because of the faulty evidence, some might feel that Leavitt should have offered a plea deal but didn't out of fear of political fallout.

To ensure all decisions in the case are made for legal reasons and to eliminate any perception of political influence, Leavitt and defense attorney Mike Esplin have told 4th District Judge Donald Eyre that a new prosecutor with a different political affiliation would be best.

"The idea is to take away any suggestion that there is political partiality involved," Esplin said.

Once a new prosecutor is selected, Eyre will set a trial date. Should the case go to trial, Esplin will ask for a change of venue to another county.

"I don't think we'd find a jury here that hasn't already formed an opinion about the case," he said.

Gardner, 46, Springville, was charged with DUI in March 1999 after he was found stomping out a field fire off a rural road west of Spanish Fork. He told investigators that he noticed the fire and stopped to put it out. Police believe the fire was started when Gardner drove his car off the road. He also told police that he had taken an alcohol-laced drink from a hitchhiker he picked up earlier that day.

Last month Gardner pleaded guilty to driving drunk in Provo on Oct. 18. He was stopped by police after the owner of a massage studio reported that he had stolen money from her purse. In exchange for the guilty plea, Provo prosecutors dropped a charge of theft.

The second-term commissioner has yet to respond to the Utah County Republican Party's request that he resign from office.