Judge grants another chance for drunk driver | Arkansas Blog

Tuesday, October 25, 2011

Judge grants another chance for drunk driver

Posted By on Tue, Oct 25, 2011 at 12:01 PM

Teresa Belew of Mothers Against Drunk Driving provides a report on a hearing today before Circuit Judge Leon Johnson on the prosecuting attorney's request to revoke a suspended sentence given Benjamin Swindoll. CORRECTION: I listed his first name incorrectly previously.

It was a long and much-publicized road to today's hearing. Swindoll, 21, was arrested in 2008 on drug charges. That was followed by a 2009 fatal car crash in which he was convicted of negligent homicide; a brush with Florida law during spring break several weeks after that crash; a DWI and speeding charge after release from the Department of Community Corrections; failure of past revocation requests because of inadequate records and, most recently, a sobriety court sentence in the DWI/speeding case. A month into sobriety court, Swindoll tested positive in August for alcohol, prompting the latest motion for revocation.

The outcome today, according to Belew, was essentially a new suspended sentence. She wrote:

6 years suspended imposition of sentence starting new today. The judge really really means it. He is still to complete Serenity Park treatment and Sherwood Sobriety Court. Basically a new judge gave a new warning that the court really, really means it. No alcohol and drugs. Comply with court order. Don't leave Arkansas for 2 years. Words fail.

Following is an Arkansas Leader article Sept. 4 with the background on today's hearing:

By SARAH CAMPBELL
Leader staff writer

After a recent breath test found his blood-alcohol level to be 0.03, a Little Rock man who was sentenced in June to Sherwood’s yearlong sobriety court is being held in the county jail without bail because of his previous run-ins with the law.

Benjamin Swindoll, 21, of Little Rock was convicted in 2009 of negligent homicide in the death of 17-year-old Nikki Powell. She was killed in a car crash. He was the drug-impaired driver.

The breath test was part of Swindoll’s requirements as a participant in the Sherwood sobriety court program.

He has been enrolled in numerous other treatment programs and the Powell family has had enough.

“It’s time for him to pay the piper. He needs to be held accountable. He needs to go to prison,” said Rocky Powell, Nikki’s father who now lives in California. Powell also explained that he knows how addiction works because he was employed at a treatment facility in California for many years.

“What I’m really upset about is they’re not doing anything to him. The judge gave him yet another chance to get treatment. When you offer a person opportunity after opportunity, there comes a point when you have to say ‘you don’t want treatment then you will be incarcerated.’ It’s apparent by his (Swindoll’s) actions that he doesn’t want help.”

Powell’s fear is that Swindoll will hurt himself or someone else because of his addiction to alcohol and drugs. He also noted the painful irony that since his daughter’s death, Swindoll has been in trouble every year on Nikki’s birthday, which was Wednesday.

Prosecutors claim Swindoll violated the conditions of his suspended sentence from the homicide conviction when his breath test showed the presences of alcohol in his system.

Pulaski County Circuit Judge Leon Johnson agreed.

He ruled that Swindoll could be released from jail pending a revocation hearing only if he checks into an inpatient treatment program. An Oct. 25 hearing has been set to determine whether he has violated the conditions of his suspended prison sentence.

Powell is concerned that Swindoll will be back in a treatment program in a few days. He lamented that offenders who-negligently-kill others in drug or alcohol-related cases in Arkansas usually spend less than 15 months behind bars.

Swindoll pled guilty to the homicide charge and drug possession in 2009. His 10-year sentence was suspended to nine months in a drug-treatment program.

A few weeks after Powell’s death, Swindoll was arrested for public intoxication while celebrating spring break in Florida. Three weeks after being released from custody, Swindoll was arrested again, this time on a driving under the influence charge after he was caught traveling at 119 mph on I-430 near Colonel Glenn.

He was not sent to prison to serve the suspended sentence because of a clerical error; he didn’t sign a form that stated the conditions of the suspended sentence.

Sherwood’s sobriety court also took action, leveling a 24-hour jail sentence.

“I believe this program (sobriety court) would have been successful (for him),” said Sherwood District Judge Butch Hale. “We have to expect setbacks. You’re dealing with a lifelong addiction that you can’t cure in a few weeks.”

Hale also explained that those in the program are told not to use mouthwash and that using mouthwash could lead to a breath test finding a blood alcohol level of 0.03.

He doesn’t know the details of Swindoll’s slip-up. He couldn’t say how well Swindoll had done in the program because he had not been present at the defendant’s last meeting at the court.

The first 90 days of the sobriety court program require an offender to attend an AA-equivalent meeting everyday. The court meets at 4 p.m. on Tuesday every two weeks to review the offender’s progress. There are four 90-day phases in the yearlong program. Requirements gradually decrease as the offender nears completion of the program.

Offenders are tested for drugs and alcohol two to three times every week and are required to attend a certain number of individual and group counseling sessions.

Swindoll was arrested after he was caught driving 119 mph in Sherwood and blew a 0.08 blood alcohol level. Hale fined him $1320 ($920 for his first DWI and $300 for speeding) and sentenced him to community service and a year in jail.

The jail time was suspended in favor of the sobriety court, one of three federally funded programs in the state.

The sobriety court is usually reserved for those who have three or more DWI charges, but Swindoll was an exception because of his history with substance abuse.

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