An urgent question lingered after Roy Lee Everett was charged in a Norfolk car crash last month that killed a 16-year-old boy.
Why was he even behind the wheel?
Everett, it turned out, had been charged with driving drunk six times before and convicted three times. He now has three DUI cases pending.
The system usually stops repeat offenders before it’s too late, authorities say. But some, like Everett, have avoided severe punishment because of legal loopholes, problems with evidence and lenient judges.
Most have not hurt anyone. Yet they are out there, and they pose a threat: Alcohol was a factor in 41 percent of vehicle deaths last year in Virginia.
In South Hampton Roads, 428 people were convicted of their third or subsequent DUI offense between 1999 and 2002, according to an analysis of Virginia Supreme Court data.
In recent years, court records show, others have amassed even more drunken-driving convictions than Everett:
A Portsmouth man has racked up nine DUI arrests and seven convictions in two decades. His latest charge came in May, while he was free on bond and awaiting sentencing on his seventh conviction.
A Virginia Beach man was sentenced to a year in jail for his fifth DUI in 20 years. A month later, a different judge in the same city gave him 10 days for his sixth offense.
Another man at the Beach was convicted of his sixth DUI in nine years. He was sentenced to two state rehabilitation programs for a year and received a suspended prison term.
Privacy laws make it difficult to determine how many drivers have similar records.
“It’s not a matter of whether they’re drinking and driving,” said state Sen. Kenneth W. Stolle, a Virginia Beach Republican and lawyer. “It’s a matter of whether we catch them when they’re drinking and driving.”
Old laws and judicial discretion allowed Van Ivan Malone to compile his DUI record.
Between 1988 and 1998, Malone’s final sentence on five DUI convictions never exceeded six months in jail, according to court records. One reason: The offenses happened before the General Assembly made a third or subsequent DUI conviction a felony with stiffer sentences.
Last summer, after four years without a charge, Malone was arrested when Portsmouth police stopped him late one night for driving with the headlights off. Because of his record, he was not supposed to be driving at all.
He pleaded guilty to felony DUI in November. His sentencing was scheduled for February, and he continued to be free on $500 bond.
The court date was delayed four times, including once when the judge was out for health reasons.
Meanwhile, Malone was caught on the road last month and again charged with DUI. This time, a Portsmouth officer heard him squeal his tires and saw him swerve.
Malone, 45, now is being held without bond. Last week, Portsmouth Circuit Judge Johnny E. Morrison again delayed sentencing on the seventh conviction. The judge said he wanted to determine whether Malone would have transportation to work from jail.
Mary Harris, the prosecutor handling the case, told the judge that Malone should be put behind bars.
“Everything has been tried with Mr. Malone,” Harris said. “He still doesn’t get it, and nothing is working on him.”
Malone is scheduled to be sentenced today. Morrison said he could not comment on the case because it was pending, and Malone declined to be interviewed.
His wife, Isobel Malone, said her husband had a difficult childhood in West Virginia. His mother left when he was 4, she said, and his father regularly brought him to bars when he was young.
He has struggled with alcohol ever since, but he has been mostly clean for the past several years, she said.
Malone is a construction company supervisor, and he supports his wife and their 5-year-old daughter. He drinks occasionally, when he goes bowling on the weekends or is under stress, Isobel Malone said.
Although she wants her husband to return home, she said he deserves to be punished and needs help.
“He’s very remorseful: `Why did I do this? Why have I done this to us?’ ” she said. “The only thing I’m thankful for is nobody is hurt.”
Under state law, punishments for DUI are supposed to increase with each conviction.
To win a new conviction against a repeat offender, prosecutors must prove that the person was found guilty of DUI before and that the earlier cases were handled properly.
If there are problems with evidence or if the paperwork from previous convictions is incomplete or unavailable, repeat offenders can receive sentences that do not reflect their history.
Jeff Alan Morelen, 41, had four convictions when he was arrested in August 1999 on another DUI charge in Virginia Beach, according to court records.
Six months later, he was arrested yet again. A magistrate scrawled “Danger to Society” on his paperwork and recommended no bond.
For his fifth DUI conviction, Morelen was sentenced in April 2000 to 12 months in jail.
His next case came up a month later, and it was unusual, according to Ronald G. Reel, the Virginia Beach prosecutor who handled it.
Reel had to show that the offense was committed after July 1, 1999, the date fourth-offense DUI became a felony in Virginia.
Reel said he neglected to establish the year of the offense during the trial. He feared that overlooking such a detail would lead the judge to dismiss the case. So he negotiated a plea agreement.
For the original felony charge, Morelen faced up to five years in prison. Instead, the sixth charge was reduced to DUI second offense, a misdemeanor.
Virginia Beach Circuit Judge A. Bonwill Shockley sentenced Morelen to 12 months in jail, with all of the time suspended except 10 days. Morelen also received probation and a $200 fine, and his license was suspended for three years.
Shockley could not be reached for comment.
In an interview, Morelen said he turned to alcohol when he had problems. He said he would drive home after a night of drinking and shooting pool.
“I’d think about it, but I was right there by the house,” he said. “I was not incoherent.”
He never consented to blood-alcohol tests when stopped by police, he said.
Sometimes, like after Christmas parties, he got a hotel room rather than drive home drunk, he said. He also said he had one accident, when he hit a telephone pole on a rainy night.
Though Morelen escaped the maximum punishment, he did lose his job, at least temporarily. For 20 years, he had worked as an electrical engineer. He said he lost his government security clearance because of the DUI convictions.
“I regret what I did, drinking and driving,” he said. “It ruined my life pretty much.”
Virginia has minimum sentences for each DUI conviction. But judges have broad discretion in setting penalties.
Ricky Lee Breiholz, 44, had five DUI convictions when he was arrested in December 1999 on another DUI charge and a related count, according to court records.
Six months later, Virginia Beach Circuit Judge Kenneth N. Whitehurst Jr. assigned him to probation and to attend two state-run residential programs, which focus on rehabilitating nonviolent offenders through employment, community service, education, substance-abuse treatment and military-style discipline.
Breiholz also was fined $250, and his license was suspended for six months. He was ordered not to drink and to enter substance-abuse treatment, according to court records.
The judge sentenced him to a total of nine years in prison for the DUI charge and the other count. All of the time was suspended.
Whitehurst has since retired from the bench and could not be reached for comment.
Harvey L. Bryant III, the Virginia Beach commonwealth’s attorney, said the decision in Breiholz’s case was unusual.
“I’m certain it would not happen today,” he said. “I don’t know why it happened then.”
Patrick J. Connolly, the prosecutor in Breiholz’s case, said he did not recall the details of the sentencing hearing but said his office probably would have asked for jail time under such circumstances.
Breiholz has since been charged with violating his probation, and Connolly said he would ask for the full nine-year prison term if he found that Breiholz had been caught drinking and driving. “That would be a no-brainer,” he said.
In an interview from the Chesapeake City Jail, Breiholz said nine years would be too stiff a punishment. He never wrecked a car or hurt anyone while driving drunk, he said, and people who commit more serious offenses are sentenced to less time.
Breiholz said there was an eight-year period during which he would drink up to two cases of beer a week. He said he avoided driving if he was stumbling or thought he would make the car swerve.
“You can tell if you can’t drive, if you’ve had too much,” Breiholz said. “I would leave my car there if I was too drunk.”
Breiholz said the state rehab programs inspired him to turn his life around.
But last year, he violated the judge’s order by getting drunk, according to court records. On a visit to a parole and probation officer, Breiholz’s blood-alcohol concentration was .25 percent – slightly more than three times the legal limit.
A probation and parole officer wrote that Breiholz “is still consuming alcohol, most likely still driving,” and “this officer is greatly concerned and strongly feels that he needs to be taken off of the streets immediately.”
Since 1999, state law has required at least a year in jail for a fourth DUI offense within a decade. A year later, the punishment for a third offense was changed to at least 10 days in jail.
Both charges are felonies with a maximum punishment of five years in prison.
Some lawmakers, activists and prosecutors say DUI laws should be tightened further. They suggest requiring the presence of prosecutors in all DUI court cases, withholding bond from anyone charged with a third or subsequent offense and increasing mandatory minimum jail sentences.
“Judges have to stop making so many arbitrary decisions,” said David Kelly, public policy liaison for Virginia’s Mothers Against Drunk Driving organization.
Others say judges should be able to base decisions about bond and sentences on individual cases.
“We should have the faith in them to do the right thing,” said Lawrence Cardon, a local defense attorney.
Since Roy Lee Everett’s crash last month, local judges have felt increased pressure to be stricter with suspected drunken drivers.
“I think the judges are doing a good job in changing the landscape,” said state Del. Kenneth R. Melvin, a Portsmouth Democrat and defense attorney.
But Michael Goodove, president of MADD’s local chapter, said repeat offenders tend to continue their dangerous habits unless they are locked up.
“Someone that has three, four, five DUIs,” he said, “usually ends up maiming or killing somebody.”
