Law allows repeat DUI offenders to get “1st” conviction, multiple times

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Horn Lake, Miss. –Brandy Erwin stands holding a picture of her late husband John Erwin.

As anyone can imagine, her emotions are still raw from losing Erwin last year.

“So young and didn`t deserve…what he got,” said Erwin when WREG interviewed her for an unrelated story.

The 42-year-old was killed in an accident on October 11, 2016 on Nail Road in Horn Lake.

Police say a drunk driver, 66-year-old, Clara McMillian, is responsible.

This past spring, McMillian was indicted for DUI Death and a trial is set for February of 2018.

WREG spoke with McMillian and her attorney off camera, but neither would comment due to the pending case.

However, WREG obtained court records where McMillian’s attorney said Erwin, who was on a motorcycle, pulled out in front of McMillian, which then caused her to slow down and get hit from behind as well.

The attorney also said any behavior that may have caused police to think McMillian was under the influence, was related to head injuries sustained during the accident.

However, WREG learned that 2016 incident, wasn’t McMillian’s first run in with the law for DUI.

McMillian has been arrested five times since 2008 for DUIs.

She was arrested in September of 2008 in Hernando, Mississippi, then again a month later in Horn Lake.

The case in Hernando was never prosecuted. The charges in Horn Lake were dismissed.

McMillian was arrested again in 2011 and 2015 in Horn Lake.

She was found guilty in both cases of a DUI-1st offense.  McMillian was sentenced to two days in jail, but got credit for one served and one day was suspended.

McMillian paid fines, had her license suspended and was required to attend certain classes.

When looking over the files, WREG noticed something else about the case prior to the DUI death.

In 2015, McMillian was charged and convicted of a DUI-1st offense, for a second time.

Laura Williams is a volunteer with Mothers Against Drunk Driving.

“No, it`s not uncommon,” said Williams.

Williams told WREG she’s often heard of cases where drunk drivers have multiple first offenses.

However, she said it’s mainly because the incidents occurred in different counties or states, and the person gets another DUI charge, before adjudication is complete in the first case.

“If you haven`t been convicted of the first DUI, then there`s no record of it yet,” explained Williams.

That wasn’t a factor in McMillian’s cases, as four out of five were in the same city.

In Mississippi, a DUI first offense conviction is punishable by two days in jail (time that can be suspended), plus fines along with victim impact and safety classes.

A second offense requires a mandatory minimum of five days in jail and a third DUI conviction is a felony.

All require some form of license suspension.

Now, there’s also a non-adjudication option for first time offenders which includes the use of an interlock device.

Williams says she believes there’s a risk when people get multiple “first” convictions and no jail time.

“The downside for that happening is, it is a lot easier for people to repeat offend and if you continue to repeat offend, you continue to drink and drive or drive after you`ve done drugs, there`s a larger chance you`re going to hurt someone.”

John Perry is an attorney, and his Southaven firm handles DUI cases.

He says, in general, in his experience, second “first offenses” are usually the result of negotiations between the prosecutor and defense attorney, and typically the accused doesn’t have a pattern of problems.

Perry told WREG, “If you for one reason or another are able to successfully say look, this person needs to go through having a penalty for first offense DUI, not a second offense because I don`t think you can prove it for one reason or another.”

From procedural errors to problems with how tests were administered, Perry says any number of things could lower the likelihood of conviction.

In those cases, he says another “first conviction” satisfies both sides because the case isn’t thrown out, and the defendant faces consequences.

As for McMillian, it’s still unclear how she was able to get a second first offense in 2015.

Meanwhile, the Erwins are left to deal with the loss the accident left behind.

“I want my husband back so bad.”

WREG reached out to both attorneys from McMillian’s 2015 case and didn’t hear back by the time this story was complete.

NewsChannel 3 did speak briefly to the judge from the case, by email, but he said he was out of town and couldn’t fully respond without seeing the case information.

On the subject of offenders have two DUI-1st convictions, he reiterated, a third DUI conviction is a felony, regardless of whether a defendant has two “firsts” or a DUI-1st and DUI-2nd.

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