 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Wichser11/1/2005
(Not Designated for Permanent Publication)
Inbody, Chief Judge, and Carlson and Moore, Judges.
INTRODUCTION
Matthew Wichser was charged with one count of driving under the influence causing serious bodily injury, a Class IIIA felony. After Wichser's no contest plea to the charge, the trial court sentenced him to probation for a period of 2 years. Pursuant to Neb. Rev. Stat. § 29-2320 (Cum. Supp. 2004), the State has appealed on the ground that the sentence was excessively lenient.
BACKGROUND Facts
It should be noted that not all the relevant facts will be presented at this stage, but they will be added as required in the sentencing section and our analysis.
Wichser, at the time of sentencing, was a 26-year-old college graduate with a bachelor of arts degree in finance. Wichser is married and was employed as a market analyst in Omaha, Nebraska. His relevant criminal record, prior to this offense, included two previous driving under the influence (DUI) charges, which occurred on March 29 and May 19, 2001. Wischer was placed on probation for 6 months and 1 year, respectively, and did satisfactorily complete each probation, albeit the probation periods overlapped. It should be noted that Wichser's blood alcohol content in the first DUI was .203 and in the second, .228.
This current offense for driving under the influence causing serious bodily injury occurred on August 5, 2004. The victim was driving a motorcycle westbound on Pacific Street when Wichser, traveling eastbound, turned left in front of the victim's motorcycle, causing a collision. The victim was taken to a hospital in serious condition. As stated in the factual basis of the plea, the victim had 6 hours of surgery to repair broken bones in his left foot and leg. As a result of this accident, the victim lost two of his toes. Wichser was given a field sobriety test, which he failed. His blood alcohol content tested at .229.
Sentencing
Based on the fact that we must examine the trial court's sentence, we will discuss the facts contained in the presentence investigation report and those presented at the sentencing hearing in some detail.
The relevant facts as indicated in the record and outlined, in part, in the State's brief reveal the following scenario: Wichser had completed an outpatient treatment program by the time of his plea of no contest to the driving under the influence causing serious bodily injury charge. Wichser's diagnosis was "alcohol dependent." In addition, Wichser was attending regular Alcoholics Anonymous meetings at the time of the plea.
Wichser was given the "Nebraska Driver Risk Inventory," which classified him as "substance dependent." Wichser scored in the maximum risk range for alcohol. He admitted to drinking and driving "a lot of times when he wasn't caught" and stated that "when he starts drinking, he just doesn't stop."
At sentencing, Wichser's attorney stated, "I would like to remind the Court that part of the plea bargain in this case was a recommendation from the State that . . . Wichser be given the benefit of the doubt with regard to probation in exchange for his plea." The court and the State disagreed with this statement of the plea bargain. The trial court stated that the State would recommend probation only " f it was recommended by the probation office." The trial court later stated, "And I understand the State's position was that they were willing to go along, if [probation] was recommended, they would go along with it. It wasn't recommended, and they're not going along with it." The State agreed with the court's characterization.
The probat
Page 1 2 3 4 5 6 Nebraska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|