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A long, winding road to jail

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Kirk Kenneth Denis

Kirk Kenneth Denis

"I know I told you I wasn't drinking, but I was. I'm an alcoholic. It runs in my family. I've made a lot of mistakes. I need to learn from my mistakes." — Statements by Kirk K. Denis to a Utah Highway Patrol trooper Jan. 15, 1998, according to a police report on his DUI arrest.

Kirk Kenneth Denis is finally in jail.

For nearly 10 years, the 48-year-old man who now lives in Sandy virtually escaped punishment for a string of drunken driving arrests and convictions, which raises questions about the way drunken drivers are charged and punished in Utah.

Deseret News research of arrest report and court files — coupled with interviews of prosecutors, court clerks, officers and judges — shows Denis has been arrested and convicted six times for driving drunk. And, despite state laws intended to take drunken drivers off the road, he had spent, until last month, only a few days jail time.

In five of the cases, he was caught in busy traffic on Utah's freeways. On one occasion, he swerved across lanes of traffic on I-15 and rolled his car.

He was arrested once with a young child in his car.

And in one case where prosecutors pushed for a felony conviction, which was for Denis' latest DUI charge, the case was pleaded down to a misdemeanor.

While Denis has a record, it's not easy to piece together. The documents are a chaotic mess, which may have contributed to Denis' avoiding a felony conviction and stiffer penalty.

Confusion permeated one of Kirk K. Denis' recent court hearings on an arrest for driving under the influence.

Faced with conflicting and incomplete information in two official state computer databases, a perplexed Murray Justice Court Judge P. Gary Ferrero considered what to do with the man who had been brought before him on drunken driving charges.

In court, nothing could be verified about various court dispositions on Denis' various DUI cases.

A report from the state's Bureau of Criminal Identification reported two instances, while a report from the Utah Driver License Division reported two, and it wasn't at all clear that they were the same two. Convictions for driving on a license suspended because of the DUIs further muddied the record.

Denis' public defender, Mikel Boley, alluded to "another case that is pending" but did not identify where that case was located. Boley declined to speak with the Deseret News.

Unable to conclude from the records the exact nature of Denis' DUI history, Ferrero determined he was considering "at least a second offense" and proceeded to pronounce a 30-day jail sentence "based on faulty information."

The scenario makes lawmakers — and those whose children and grandchildren have died at the hands of drunken drivers— furious, and they say Denis' case represents everything that is wrong with Utah's system of arresting, charging and punishing drunk drivers.

"This is ludicrous," said Art Brown, who lost his 4-month-old grandson to a drunken driver and represents victims of drunken driving accidents on the Governors Council on Driving Under the Influence.

"For public safety reasons, we expect that after the second conviction and on third arrest he would be charged with a felony," Brown said. "And that should carry with it some serious jail or prison time to get his attention along with the necessary treatment programs."

Lawmakers talk each session about getting drunken drivers off the road, tightening sanctions, improving public safety in this arena. They pass laws they think are making headway on the problem. The 2001 Legislature, for example, passed four new DUI laws.

"And yet we continue to see situations like this case," said Sen. John Valentine, R-Orem, who has studied DUI issues. The Legislature is concerned the courts are not following through on laws that are being passed, Valentine said.

"I would characterize it as a sense of frustration that the system seems unable to handle the problem," he said.

Denis, who is now in the Salt Lake County Jail, did not respond to a reporter's request for an interview.

Here are the details of his DUI history, based on court documents, police reports and interviews:

AUG. 16, 1992 — Drivers in Provo Canyon call police to report that a motorist is driving erratically down the canyon at 5:30 p.m. A Utah Highway Patrol trooper finds Denis pulled over on the side of U.S. 189, apparently asleep, according to a police report. His vehicle engine is running. There is a young child in the truck with him.

The trooper smells alcohol. Denis' speech is noticeably slurred and slow, and his eyes are partially closed. He tells the trooper he had taken a Carisoprodol tablet — a prescription muscle relaxant — 40 minutes earlier. "I knew I was too impaired to drive, that's why I pulled over. I value my life and my son's," Denis said, according to a UHP police report on the incident.

Denis fails field sobriety tests and is arrested on a misdemeanor DUI charge, to which he later pled guilty. The child is turned over to his mother, and Denis is taken to Utah Valley Hospital for a blood alcohol test.

Denis is eventually convicted on a lesser charge of alcohol-related reckless driving, according to Provo 4th Circuit Court records, which don't specify what his sentence was. Standard sentencing guidelines for first-time offenders usually include a specified amount of community service, fines and enrollment in an alcohol abuse treatment program.

APRIL 11, 1993 — Denis is arrested on I-15 near 600 South in Salt Lake City. He is convicted of a misdemeanor DUI, ordered to pay a $925 fine and sentenced to 30 days in jail, with all but two of those days suspended.

JAN. 15, 1998 — A UHP trooper notices Denis' 1979 Oldsmobile weaving across lanes of traffic on I-15 near 12300 South before exiting onto State Street. Denis' speech is slurred and his balance poor when the trooper pulls him over just after midnight. He nearly falls getting out of the car and fails several phases of the field sobriety test. A test of Denis' blood alcohol level shows .163 — more than twice the legal limit.

Denis has a valid driver's license.

Denis pleads guilty to the DUI in Draper. Justice Court Judge Daniel F. Bertch sentences him to 180 days in jail — the maximum possible — but only requires him to serve 10 days. With time already served, he spends eight days in the county jail, according to a jail official.

In addition, Denis does not have an attorney, which may have presented problems for prosecutors trying to enhance the penalties for Denis' later DUI charges, says Marty Verhoef, assistant director of the criminal division for the Salt Lake County Attorney's Office.

"If a person is sent to jail without a lawyer, the courts have said they may not have been given their full constitutional rights. So it's hard to enhance the charges," Verhoef says.

This is a problem for those trying to monitor drunken driving offenders — the way they are charged and the way judges sentence, says Mary Phillips, an advocate for more stringent DUI laws and penalties.

When an offender has no lawyer, there are two ways to make that charge enhanceable: The judge can note in court records that the charge could be used in the future as an enhanceable charge, and there has to be verification in the court record that the person waived his right to an attorney. "If they waived the right to an attorney when in jail, prosecutors can't take the case as enhanceable."

This is important for Phillips' cause because "enhancing" a charge means bumping up the severity of the charge, and punishment, from a misdemeanor to a felony. "We have people who continue to reoffend and the penalties for misdemeanors aren't working," Phillips says. "If you can enhance and make it a felony they can do prison time."

Verhoef's records show Draper Court never notified the state's Bureau of Criminal Identification of the conviction. Bertch says, in a written response to a reporter's questions, that the court always sends the data that are supposed to go to BCI, "especially DUI convictions."

Bertch says he is careful to review the potential to enhance future charges with every defendant. He also emphasizes each must be treated as a unique individual and sentenced on their own circumstances.

Judges are required to weigh individual cases without being "swayed by partisan interest, public clamor, or fear of criticism," according to the Code of Judicial Conduct.

"Those individuals need to know and feel that their cases are not being prejudged out of concern for how a judge might appear in the newspaper," Bertch writes in his statement.

MAY 18, 2000 — Just after 7 p.m., three witnesses report a motorist is driving very fast south on I-15 near Bluffdale. Denis, that driver, swerves, loses control and rolls his Honda Accord down an embankment. He takes out 60 feet of fencing along the way. No other vehicles are involved, and neither Denis nor his female companion is badly injured.

UHP trooper Jamie Maddux arrives at the scene and notices the odor of alcohol. At Alta View Hospital, Denis fails two sobriety tests but refuses to take a blood test to determine his blood alcohol level.

Denis has a valid driver's license at the time.

He is charged with a misdemeanor DUI, pleads guilty and appears before Bluffdale Justice Court Judge A.A. Mitchell for sentencing.

Mitchell, who was unavailable for comment, sentences Denis to one year of probation and a $950 fine. As a condition of his sentence, Denis is supposed to attend an in-patient program at the Gathering Place, an Orem-based rehab center. Court records show program officers are supposed to send monthly reports to the court. It is unclear whether they do. Records show Denis did attend the program.

Because Denis had other DUIs during the probation period, he has been summoned back to court Aug. 22, 2001, says Bluffdale court clerk Vickie Nichols.

Other agencies have trouble tracking this case. Bluffdale never sent a record of the conviction to the Bureau of Criminal Identification, so no information turns up on the main database for tracking DUIs.

Nichols says the court has done nothing wrong. "I don't forward it until the case is closed, and that case isn't closed. As long as he's on probation it's still an open case," she says.

NOV. 9, 2000 — Denis is in the Southern Exposure bar in Murray and gets into an altercation with another patron. He is taken to Cottonwood Hospital and treated. When he leaves, a hospital employee is concerned that he will be driving a vehicle while still intoxicated or may return to the bar "for revenge."

She reports the events to police and Denis is picked up and charged with a misdemeanor DUI.

Judge Ferrero of Murray Justice Court, extremely frustrated with the confusing records, sentences Denis to 30 days in jail some 10 months after the conviction.

Despite prior DUI convictions and arrests, Denis is not charged with a felony DUI as required by law.

Marsha Thomas, prosecutor in the Murray Justice Court, will only say Denis was tried in that court on a misdemeanor charge because there is no record of prior convictions that would raise it to the level of a felony.

Denis is now in jail on this charge, but not before he committed another DUI before he was sentenced.

And confusion reigned at the sentencing. "I understand there are six DUIs here," Ferrero says in opening the hearing.

In a somewhat unusual move for a judge, court records show Ferrero took the initiative to ask for a history of Denis' DUI arrests and convictions before sentencing.

Had Ferrero not asked for a pre-sentence report, no one would have noticed Denis' history of driving drunk.

MARCH 21, 2001 — At 3:15 p.m., Denis is stopped by a trooper who notices him driving erratically in the northbound lanes of I-15 near 10600 South. Denis refuses to take a blood alcohol test, and the officer arrests him for DUI after he fails sobriety tests, a police report says. Denis tells the officer he has been drinking vodka — about a half pint — and says he had a back injury 20 years prior that causes him a lot of pain, the report adds.

Originally charged with a felony, prosecutors plead down the case to a Class A misdemeanor.

"We could have gone to trial, but this wasn't a slam dunk case," says Verhoef. "Evidentiary problems" complicate the case, including the fact there was no blood alcohol test on Denis and that he says he has a back injury. Such an injury, says Verhoef, could be interpreted as a reason Denis flunked sobriety tests.

"This guy's smart enough to refuse the test and to have excuses for his behavior. We'd rather take the (Class A misdemeanor) and get the validation of the priors," Verhoef says.

Now he could do one year in jail, Verhoef says. This last case is on hold, pending Denis' release from jail on the previous incident in Murray.

E-mail: lucy@desnews.com; tvanleer@desnews.com