William Parminter didn't want to go back to jail for drunken driving. On Jan. 20, 2011, he spent the morning at the Lancaster County courthouse with his attorney, Shawn Elliott, arguing that evidence in his third drunken driving charge should be thrown out.
During the lunch break, Parminter walked across the street, got into his Jeep Cherokee and drove away. That was illegal. His driver's license had been taken away after his previous drunken driving convictions. Parminter didn't realize Lincoln, Nebraska police officer John Clarke, who had been called in to testify against him in court that morning, was watching.
A couple blocks away from the courthouse, another officer pulled him over. She found a case of Keystone light on the passenger seat, a few empties on the floor and one cold beer open in the cup holder.
The breathalyzer indicated a blood alcohol level of .238. Parminter had apparently shown up drunk for court that day. It earned him another charge of driving under the influence.
A little more than a year later, while Parminter sat in jail, his DUI case made it to the Nebraska Supreme Court because the Lancaster County Attorney felt the judge in the case gave Parminter too lenient a sentence.
In the words of Deputy Attorney Dan Packard, "It's hard for me to imagine a different set of facts that would be more deserving of a maximum jail sentence."
In August 2011, Lancaster County District Judge Robert Otte sentenced Parminter to a minimum of 12 months in jail for each of the drunken driving citations issued in May of 2010 and January of 2011. That jail time could be served concurrently, or at the same time. He would also get credit for the 225 days he had already spent in jail, unable to post bond.
Concurrent sentencing is a legal device commonly used in the courts. In this case the Lancaster County Attorney felt it provided an unnecessarily lenient sentence for Parminter. The prosecutor appealed to the Nebraska Supreme Court, requesting either a tougher sentence from the justices or that the case be sent back to the district court for reconsideration.
"The trial court sentence reflects that the judge did not adequately consider the circumstances of the crime committed," Packard argued. "This is an issue of public safety. Probation doesn't deter Mr. Parminter. Treatment doesn't deter him. License revocation doesn't deter him. A lengthy period of incarceration is the only thing that assures the public will be safe for a lengthy period of time."
The prosecutor noted Parminter had a nearly thirty year record of alcohol abuse, including seven prior DUI convictions and three stints on probation.
At the sentencing last August, Parminter's attorney, Shawn Elliott of the Lancaster County Public Defender's office, successfully convinced Judge Otte that a concurrent sentence benefited the community and his client.
As Elliott explained during the Supreme Court appeal, "Mr. Parminter obviously has a big problem. He's an alcoholic."
Elliott indicated during the hearing that by keeping jail time at a minimum, which in this case would have totaled no more than five years, Parminter would be able to get back on track with additional treatment for his alcohol problem.
"When he has been charged (in previous cases) he has a history of getting into needed treatment, completing it, and becoming a law-abiding citizen," Elliott said. The case put a spotlight on the routine use of concurrent sentences in drunken driving cases. Mothers Against Drunk Driving often argues against overlapping jail time since those penalties don't "send as strong a message," said Andrea Frazier, MADD's coordinator of its court monitoring program.
In courts where Frazier tracks the types of penalties meted out to drunken drivers, her preliminary data indicates a multi-year trend of judges getting tougher on drunken drivers, including fewer concurrent sentences when injuries or death occurs as the result of a drunken driver.
"We do see judges stepping up and saying, we are not going to tolerate driving under the influence any longer, and so let's hold these people accountable for their behavior and not repeating."
Frazier concedes that concurrent sentences are not always a bad tool. Criminal defense attorneys argue it gives judges needed flexibility depending on the case.
"Yes, some people will be treated lighter than others," said Omaha-based attorney John Green.
"As a defense attorney, you want that discretion with the court. If you have two people in front of you and one of them has gone through treatment and taken responsibility for their lives and the next person says they won't do it and they will continue to drink and drive, those people do not deserve the same sentence."
Arguing in favor of that type of leniency, public defender Shawn Elliott attempted to convince the Nebraska Supreme Court that Parminter deserved the benefit of a lighter sentence. He pointed out that his client had long stretches of sobriety. Parminter also struggles with post-traumatic stress disorder following the murder of his brother in 2000.
When Elliott noted that Parminter had "never been involved in an accident or hurt someone when drinking and driving," Justice William Connolly pointedly asked, "There is an element of dumb luck involved in that, isn't there?"
As a matter of law, there is more for the Supreme Court justices to consider than the behavior of a single drunken driver. Historically and by statute, the State of Nebraska gives judges considerable leeway to determine what punishment fits individual cases. If the Supreme Court asks a judge to reconsider a sentence, or orders the change, they will have to be convinced that what the court decided was well outside the intent of the law.