Arrested development

My arrest for driving under the influence turned my life upside down. A conviction would have been worse.

The story of my arrest for drunk driving is a difficult one to write. It’s difficult because it doesn’t make me look very good. Quite the opposite, it shames me and my family and shows me as a far less intelligent, sober and respectable person than previous first-person stories and essays have made me out to be.

I drove drunk. And got caught. I did not receive the full possible punishment allowed by law, primarily because I was more than adequately represented by my attorney John Oakes, who made the most of the arresting officers’ simple errors, omissions and exaggerations. The vast, vast majority of driving under the influence of alcohol or drugs cases result in staggering financial losses to the accused, community embarrassment and, sometimes, destruction of property or the death or injury of an innocent person. And I’m not alone. In 2008, there were 4,126 people booked into 911 Parr Boulevard jail on suspicion of DUI.

Despite the fact that I’m writing this from a personal perspective, I’m going to quote from documents as much as possible. There’s no way I’m going to get past the “unreliable narrator” role, but suffice it to say, I’ll expect plenty of commentary in my inbox.

Dec. 27, 2008: Red Rock Studios, 241 S. Sierra St., about 8 p.m. I like to drink. I do it more now since I split with my longtime significant other a couple of years ago but far less than I did in the bad old days when I was a bartender in the ’80s and early ’90s. My 12-year-old son has never seen me drunk. He has occasionally seen the bad dad who doesn’t want to get off the couch on Saturday, but he’s never gotten the “look how much fun we have when we drink” example.

The events leading up to the DUI arrest are almost irrelevant. Suffice it to say, I was pouring booze on a wounded heart. A few conversations stick out in my mind, mostly ones with bar owner Kevin McGehee, about, among other topics, not driving drunk.

Also that night, bartender Faith Zaumeyer announced her pregnancy. I had several beers and shots with Jeremy Morrow and Nathan Graves who work at the nearby bar Strega. I particularly recall mentioning to Graves a quote from a Bob Dylan song: “To live outside the law, you must be honest.” That quote was supposed to illustrate that it’s OK to get drunk, just don’t make it anyone else’s problem, like by driving drunk. Again, not to make excuses, but by way of elucidation, I was drinking shots of tequila and Jameson Irish Whiskey with my Bud Lights. I don’t ordinarily drink hard liquor, and I think that was why I made the stupid and irrational decision to drive home. In other words, the fact that I was so fucked up led me to get behind the wheel. I wasn’t tipsy. I was hammered.

The Bust and Jail

Dec. 28, 2008: Corner of Ridge and Sierra Streets, about 12:35 a.m. I was parked in the easternmost parking spot on Ridge Street. Freezing rain had fallen earlier, and the street had snow and those ridges that form in between lanes. My memory is sketchy, in part because so much time has passed, in part because of the alcohol. But I have clear memories—though more like snapshots than a movie—of the drive leading up to the flashing lights.

I turned right onto Sierra Street and right again onto California Avenue. I made it to Arlington Avenue before I was stopped, a half-mile total. My memory tells me I was driving in a manner consistent with, and safe for, the conditions. A Reno City policeman, Eric Hague, a trained observer tasked with protecting innocent people from drunks on the road, swore in written statements and in a court of law that I did not.

“The turn [onto Sierra Street] was so wide that the vehicle passed halfway into the #2 travel lane then back to the #3 travel lane,” Officer Hague wrote in his incident report. “I followed the vehicle southbound on Sierra then westbound onto California. While westbound on California, the vehicle passed from the #1 travel lane into the #2 travel lane more than four times. The vehicle then continued driving westbound on California straddling the lane line (half in the #1 and #2 travel lanes). I stopped the vehicle at California and Arlington.

“I contacted the driver, later identified as David BURGHART, and noticed he had red watery eyes and slurred speech. I could also smell an odor of alcohol coming from the vehicle. I asked BURGHART if he had consumed alcoholic beverages and he said yes.

“I requested Officer [Ronald] AHRENS come to assist. Officer AHRENS arrived and conducted a DUI investigation. At the conclusion of the investigation, Officer AHRENS arrested BURGHART.”

Officer Ahrens’ incident report was just as succinct. He essentially repeated Hague’s report before continuing the story from his own point of view.

“When I asked DAVID to step out of his vehicle, he was very unsteady on his feet. David told me that he had two Budweiser Light beers to drink at the Red Rock Bar on Center Street. DAVID said his last beer was a half hour ago.

“I gave DAVID a Horizontal Gaze Nystagmus Test and he failed, showing six clues of nystagmus. I did not complete the psycho-physical portion of the Field Sobriety Test, due to there being ice and snow on the ground, and DAVID was very unsteady on his feet. The temperature was also below 40 degrees. DAVID refused to complete a Preliminary Breath Test. …

Brian Burghart gets escorted to his evidentiary blood draw.

“I then transported DAVID to the Washoe County Jail for evidentiary testing. At the Washoe County Jail breath room, I read DAVID the Nevada Implied Consent Admonishment. DAVID refused to voluntarily give samples of his breath or blood. I told DAVID numerous times that a forced draw would have to be completed if he would not voluntarily give samples of his breath or blood. The Washoe County Sheriff Deputy Sergeant at the jail also asked DAVID several times to voluntarily give samples of his breath or blood, and DAVID refused.

“A forced draw was then completed on DAVID at 0153 hours. …

“DAVID’s vehicle was left parked in the parking lot at the southwest corner of California Avenue and Arlington Avenue. The vehicle was locked and I gave DAVID the keys to the vehicle prior to booking.”

There are details in both reports that I would quibble with but, except for certain errors that would prove crucial at trial, I would also argue they’re close enough that the differences are in point of view. The police were respectful at all times, both during the street arrest and at the jail. I was not. I thought I was within my rights to refuse to testify against myself by submitting to tests. (In fact, a person can refuse field sobriety tests, but may not refuse evidentiary breath or blood tests.) That was why I did what I was directed to do, but I refused to voluntarily help the case against me. Turns out, if they catch you behind the wheel, police have the legal right to take your blood for evidence. And they take it whether a suspect “volunteers” or not. It’s that Nevada Implied Consent law.

At the jail, some seven officers strapped me into a chair, covered my face, and a phlebotomist took my blood for analysis.

As proof that the police had no personal animosity toward me, I point out that, as mentioned in Officer Ahrens’ report, my car was left in a nearby parking lot. It was not towed, an additional cost that can easily run $350 even if it’s picked up the next day.

Many people might think that a night, or more precisely a large chunk of a night, spent in the drunk tank might be an all-time low. I slept most of the night on a hard slab and then spent a few hours in a chair watching TV and eating peanut butter and jelly sandwiches in the intake lobby—just long enough to be below .08 percent blood alcohol, the legal driving limit.

Due to my former standing in the community, including home ownership, length of time on the job, and my ability to find someone to attest to all those things, I was released on my own recognizance; no bail was necessary.

I caught a cab to the area where I was arrested, and we drove around a bit aimlessly. Even though it was only a few hours later, I could not remember where the officer left my car.

[page] Lost License and Lawyer

There are several things that happen to people who are arrested on DUIs. There are gradated levels of punishment, generally linked to factors like the number of DUIs an individual has had in the last seven years, the level of intoxication and the seriousness of the offense. For example, it’s possible to crash a car on a first, which could move it from a misdemeanor to a felony. There are two types of punishment: Administrative (DMV revocation of the driver’s license and fees for reinstatement) and criminal (the various punishments levied by the court).

The order can change. For me, it went like this: 1) Released from jail; 2) Appeared at pretrial services; 3) Informed my employer of my arrest 4) Wrote about my arrest in the Editor’s Note; 5) Hired my attorney ($1,500-$2,500, depending on the attorney’s reputation and experience); 6) Surrendered my license to carry a concealed weapon; 7) Informed my son of my arrest (many people would think this was the all-time low.); 8) Arraigned on Jan. 20; 9) Department of Motor Vehicles hearing on March 24 (it was in the letter notifying me of the results of the hearing and revocation of my driver’s license that I first learned the results of my blood/alcohol concentration: .214); 10) Driver’s license pulled on April 20 for 45 days; 8) Received a restricted license on June 3; 11) Received my full driving privileges about 9 a.m. July 26; 12) DUI dismissed in Reno Municipal Court about 4 p.m. on July 26. 13) Received my concealed weapon permit back from the Washoe County Sheriff’s office on Aug. 5. 14) Wrote this story.

I chose John Oakes as my attorney for one reason: Back in 1994 or so, he and I had a conversation about DUIs while seated at the bar of the Blue Lamp, which, coincidentally, was located at the very same address as the Red Rock is now. At that time, his slogan was “Just say no,” which meant, do not submit to any field sobriety tests. He told me to be respectful but firm with police. And when the shit hit the fan that early morning in December, the conversation came back to me. My whole strategy derived from a 15-year-old conversation.

Possible criminal punishments for first time offenders include two days to six months in jail, house arrest or community service; Nevada DUI School (alcohol counseling for up to a year, around $50 a week); fines ranging from $400 to $1,000 plus court costs; Nevada’s Victim Impact Panel ($35); and the possibility of having to install an ignition interlock device (a device that prevents the car being started until the driver passes a breath test; $110-250 install, $65-110 monthly monitoring, $75-100 removal). Add to that increased insurance costs. A first DUI can easily cost $7,000.

The loss of my driver’s license was more than inconvenient. During the remainder of the school year, on weeks I had custody of my son, my ex, Kathleen, was cool enough to pick up Hunter and me, take him to school and drop me by the office. In the afternoon, she drove us home.

Attorney John Oakes represented D. Brian Burghart in his drunk driving case.

Photo By Dana NÖllsch

The law makes no consideration for the fact that every other week, I’m a single father. No allowance for my son to attend school. During the summer, four days a week, I was 45 minutes away from my 12-year-old—on a bicycle. And I had it easy. Nevada law also makes no accommodation for people who live on say, Red Rock Road, where there is no bus service. What about a single mother of young children who must live outside of town simply because that’s where she can afford to live? It’s a $50 cab ride one way to work from Red Rock Road. How is that the same punishment as for a lawyer who lives a mile from his or her office? How is that equal treatment under the law?

If that same mother gets caught driving on a revoked license, it’s a mandatory 30 days in jail. You and I may get to take responsibility for her children, and we’ll probably get responsibility for her, too, upon her release because most employers wouldn’t give her a 30-day leave for jail.

Some people will say that people who get behind the wheel even a little tipsy deserve everything they get. Drunk drivers killed 373 people in Nevada in 2008. I believe that a misdemeanor traffic stop should not be able to destroy a family—but a death or substantial damage is not a misdemeanor, it’s a felony. I’ll also say this: During the nine months since my arrest, I was not told by a single person that they had never driven drunk. Not one.

Trial and error

July 26, 2008: Reno Municipal Court, 1 p.m. Seven months after the arrest, and following continuance after continuance, we finally came to trial, coincidentally on the same day I got my driver’s license back. Attorney Oakes noticed several inconsistencies in the police reports, primarily in Hague’s reason, probable cause, for stopping me. In other words, in this free country—despite the fact police can take your blood without your permission, despite the fact the government can take your driver’s license before you’re found guilty of a crime, despite the fact that people are punished inconsistently based on their residence and income—police are not allowed to watch drinking establishments to see which automobiles may have drunk drivers or to pull people over without probable cause. Don’t even ask me how racial profiling fits into this legal theory.

Oakes will say that driving in downtown Reno or on Fourth Street after midnight is all the probable cause police need. In fact, he said as much during the trial. But that’s mostly sarcasm. “In my experience, if you’re on the road after midnight, almost every officer thinks a person they’re encountering is DUI, so they look for reasons to stop,” said Oakes.

Oakes and the prosecuting attorney, Deputy City Attorney Patrick Sullivan, agreed to a “probable cause hearing.” A probable cause hearing essentially determines whether the police had a reason to pull a driver over in the first place. We were not disputing my drunkenness—that .214 came straight out of my blood—or whether I was driving, the two main factors in an accusation of drunk driving. We were examining the technical factors that led to my arrest. Oakes thought he could get me off on a technicality, a condition our society abhors—when the circumstances of socially guilty and legally guilty diverge.

Many people, if not most, have been to traffic court or seen more serious court matters on television. The trial is essentially a series of witnesses called by the prosecution and then examined by both the prosecution and the defense. After the government rests its case, the defense calls its witnesses and the prosecution cross-examines. Then the judge, in my case, Judge Kenneth Howard, rules. If the government wins, there’s a sentencing hearing down the road.

The two inconsistencies Oakes had noticed in the police reports were, first, that Officer Hague said, “The turn [onto Sierra Street] was so wide that the vehicle passed halfway into the #2 travel lane then back to the #3 travel lane.” There are only two travel lanes at that point on Sierra Street. Secondly, while Officer Hague said nothing about the adverse conditions (swerving on icy roads is not necessarily probable cause), Officer Ahrens wrote that the reason he did not give me a field sobriety test was because there was ice and snow on the ground.

The most interesting part of the trial, from my perspective, was Officer Hague’s testimony. He basically repeated what he said on the report, eventually drawing a diagram of the intersection of Ridge and Sierra streets showing three driving lanes on Sierra Street, and making no mention in his testimony of the weather conditions. His testimony was relatively consistent to the report until faced with photographic evidence that Sierra Street only has two driving lanes, and parking spots on either side of the road.

“I didn’t think the officer had probable cause to stop you, based upon the road conditions, plus we showed that his indication that you went into the No. 3 lane and veered back into the No. 2 was wrong because there are only two lanes,” Oakes told me. “If anything, you went into the right lane. He thought the parking lane was a lane, which it wasn’t.”

From my point of view, of course, his testimony was consistent. With all the stops police make in an average week, why would he remember a DUI stop without incident seven months before? That’s why reports are written, because memories fade. The one thing nobody pointed out at trial is that ruts tend to form when there’s snow on the ground and obscure the painted lines; maybe the reason Officer Hague didn’t know the number of lanes was because the lines were covered with snow.

Aug. 4, 2009: I received the following letter from my attorney, which included much of the prior information of the trial, but ended with these words:

“After argument, Judge Kenneth Howard granted our Motion to Suppress and, as a result, the case is dismissed and this aspect of your case is closed. As to your driver’s license, as we discussed, this is a totally separate issue. It has always seemed unfair to me for a person to lose his license pursuant to the administrative code when we prevail on the criminal case. While I didn’t win everything, at least we prevailed on the criminal part.

“It was a pleasure having you as a client. If you have any questions, please contact me. Sincerely, John E. Oakes, esq.

P.S. I told you I was good.”

People will notice that compared to others who broke this law and got caught, I got off easy. Many will wonder—since it wasn’t telling my boss, telling the world in my Editor’s Note, or telling my son—what the low point about this whole arrest experience was. This is, as I said in the beginning, not an easy story to write. It shames me and my family. This is the low point.