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State v. Herd4/6/2004
reasonable and entirely legal. It cannot and does not support a reversal.
I am concerned that the Court is basing its conclusion regarding the driving restriction on a somewhat narrow look at the District Court's sentence and judgment. For example, at 14, the Court states " he District Court specifically found that Herd was a good prospect for rehabilitation." What the District Court actually said about Herd's rehabilitative prospects is "I think the prospects of rehabilitating you are good if you follow through on this judgment[,]" necessarily including the 40-year driving restriction and all other conditions of the suspended sentences. Also in 14, the Court observes the trial court "found that [Herd] had led a law-abiding life for a substantial period before the collision, and that she was not likely to commit another crime." True again, but the District Court also determined that she committed four counts of felony negligent homicide and that a crime was not likely to recur if she successfully completed supervised probation--including meeting the conditions imposed. I submit that the Court's incomplete recitation of these facts leaves the reader with an incomplete and, therefore, misleading view of the District Court's sentence.
Finally, with regard to the driving restriction itself, the Court is persuaded by Herd's argument that "she has no meaningful chance at rehabilitation if she can never drive again." I am not. It is no doubt true that life as most of us know it--or choose it--would be more difficult without the ability to drive a vehicle. On the other hand, many people have never driven and it does not prevent them from having a full and productive life. Some people use public transportation, others walk or ride bicycles, and still others ride with friends or family. The notion that rehabilitation is nearly impossible without the opportunity to drive a vehicle strikes me as nonsense, especially in light of the overall sentence imposed here. The tradeoff of not driving for 40 years as opposed to incarceration for 80 years, for a person whose driving has killed four people, seems an easy and very reasonable one to me.
Finally, at 25, the Court concludes that the District Court abused its discretion in imposing the 40-year driving ban under the facts of the case and in light of its own statements about that court's findings in 14, which I addressed above. The Court goes on to state that nothing of record suggests that such a prohibition is necessary for the protection of society as a whole. Apparently the Court is willing to "overlook" the stark fact that Herd's negligent driving killed four people. In my view, this is simply unsupportable.
For all the reasons stated, I dissent from the Court's opinion. I would affirm the District Court.
KARLA M. GRAY
Justice John Warner joins in the dissent of Chief Justice Gray.
JOHN WARNER
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