ND Supreme Court Overturns Absurd 20 Year Delayed DUI Conviction
The North Dakota Supreme Court today overturned a DUI conviction for a man named Jason William Gale. It was an extremely unusual case because the conviction happened twenty years after Gale was initially charged with the misdemeanor.
And by unusual I mean absurd.
I wrote about this case last summer over at Watchdog.org. It started when Gale was undergoing a background check for a new job and an arrest warrant came up:
“It was in February of 2015, I was switching jobs at the time,” said Gale, who works in the cyber security industry and was living in Florida. “The HR department alerted me to this and I thought it was just so odd.”
“Obviously having a 20-year-old warrant out for your arrest for a misdemeanor crime that puts a career you’ve been working on for 20 years into jeopardy,” he said. “It has the potential to destroy all your work up to that point when you’re not aware of it.”
Gale tried to contact authorities in North Dakota to clear the matter up, but he couldn’t find anyone who was even aware the warrant existed.
“I started calling many different judiciaries. It was anyone I could find,” Gale said. “No one was able to find me in any systems when I would call the clerks of court. I would ask them if they had any additional people I should call, and they said I should probably talk to the city.”
Gale says he called Grand Forks, but no one called him back. “I left messages with the city prosecutor’s office for two straight days,” he said. “I really thought I deserved the courtesy of a return call. They never called me back.”
“It was just kind of a struggle to understand what happened,” he added. “After three days of nonstop phone calls I finally had to retain an attorney just to get someone to listen.”
Finally, Gale contacted Scott Brand of the Brudvik Law Office in Fargo. Brand thought the matter could be cleared up with a phone call, but that proved not to be the case.
The reason for the arrest warrant is that the attorney Gale hired over 20 years ago flat-out dropped the ball. He told Gale that the prosecutors had agreed to a reduced charge and that the $500 bond he paid would be forfeited to cover the bond. In other words, Gale thought the matter was taken care of.
Only it wasn’t. The attorney – who has a laundry list of disciplinary actions against him from the bar association since – didn’t do anything and a warrant was issued, only by then Gale had moved to another state.
And then the City of Grand Forks did nothing for 20 years to pursue the matter despite the fact that Mr. Gale had a child support case in Grand Forks County during that time which required him to keep the county apprised of his current address.
I interviewed Brand who told me he tried to clear the matter up, but that the prosecutor in Grand Forks wasn’t willing to cut a deal and instead took the matter to court.
Kristi Pettit Venhuizen, an attorney with the Kalash & Pettit law firm in Grand Forks who represented the city in the case, said she offered Gale a plea deal after Brand contacted her.
“The city offered to amend the charge to the reduced offense of reckless driving prior to the recent trial,” Pettit Venhuizen told Watchdog in a letter sent in response to an inquiry about the case. “Mr. Gale did not accept the plea offer.”
Brand contends it wasn’t much of an offer. “One thing she failed to disclose to you was the ‘reduced offense’ of reckless driving is a B Misdemeanor, which is the same level offense as a first time offense DUI,” he told Watchdog. “She also conditioned that Mr. Gale had to pay $1,000 in fines and fees to close this out. So the offer of pleading to a crime of the same level offense and paying $1,000 because the government didn’t do their job for 20 years was a nonstarter.”
Here’s where things get really absurd. Not only was expensive court time used up to try a 20 year old misdemeanor (for which Mr. Gale had already forfeited a $500 bond), but the trial had to be held in accordance with the law circa 1995 since that’s when Gale was arrested.
Why wasn’t the prosecutor willing to cut a deal? Maybe because she was getting paid by the hour:
Brand also questioned whether Pettit Venhuizen had financial motivation to avoid settling the case, noting she is paid by the hour for prosecuting the case.
“What’s her incentive to settle the case?” Brand asked. “She gets paid more by going to trial.”
Brand also pointed out the case took up time in district court, which typically “doesn’t hear petty cases” like DUI’s and also absorbed the time of 27 jurors, including six who participated in the actual trial.
“She has no motive to reach a deal when she’s getting paid by the hour,” Brand added.
Pettit Venhuizen said she billed Grand Forks for 15.8 hours of work on the case, including case preparation and seven hours of the trial itself, at a rate of $80 per hour, for a total of $1,264.
“The total hours spent in this case is consistent with the prosecution of other DUI cases that involve a motion to dismiss,” she told Watchdog.
Pettit Venhuizen got her conviction, but the state Supreme Court has now overturned it on the basis of the 6th amendment’s guarantee of a right to a speedy trial.
Brand explained that to me last year:
Brand said he plans to appeal the jury verdict on Sixth Amendment “speedy trial” grounds, arguing the city didn’t pursue the warrant against Gale. In fact, Gale had an ongoing child support case out of Grand Forks, which he says provided the city and courts with ample opportunity to contact him about the arrest warrant.
“Any time my address would change I would have to update them within 30 days,” Gale said. “If my employment changed I had to update them within 30 days. They were tied into my financials. My payments were all handled by the agency. There had to be a direct garnishment from my earnings. I had to have the State of North Dakota in my life in a significant way.”
Brand said the city didn’t present evidence at trial showing it attempted to contact Gale about the warrant. It wasn’t until Gale turned himself in, nearly two decades after the warrant was issued, that the matter was resolved.
I’m happy the state Supreme Court finally got this right, but it has to come as cold comfort to Gale who went through a lot of time and expense to get this outcome.
“If you could imagine, this warrant has taken me from February until present day, has caused well in excess of $10,000 in legal fees, to get rid of a misdemeanor,” he told me last year.
“If we have to go to higher courts and withstand more costs…we have to do that for all the other generations who still need the protection of the Constitution,” he added. “In some ways there is a silver lining to it. It gives me a chance to do the right thing.”