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Judges flag loophole and balk at early release for the most serious OWI offenders

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MILWAUKEE (WKOW) -- Judges are beginning to flag a loophole in state law that's allowing the most serious operating while intoxicated offenders to leave prison early, despite serving what's supposed to be a mandatory prison sentence.

Milwaukee County Judge David Borowski says being cavalier with such a sentence could have consequences. "Someone who's been caught and arrested and convicted seven, eight, nine times is in many cases an accident...or a homicide waiting to happen," he says.

Here is the dilemma for Borowski and some other judges: one state law requires a mandatory, minimum three-year prison sentence for anyone convicted of a seventh OWI or greater; an older law requires prison release for such a repeat OWI offender once they complete a specific, Wisconsin Department of Corrections rehabilitation program.

"The statutes directly conflict," Borowski says.

Jeffrey Varnes, 59, of Adams was sentenced to four years prison for his 11th OWI before the two laws converged. He was released from prison a year early after completing rehabilitation with DOC's Earned Release Program (ERP). Earlier this year, he was arrested in Dane County on suspicion of his 12th offense after crashing into a tree. "I don't remember getting behind the wheel," Varnes told 27 News as he was released from jail when his $10,000 bail was posted.

Varnes says he's been through many treatment programs for alcoholism in addition to the state's ERP. "And that's the best treatment I've ever had as far as dealing with the core of what I have to fix," he says.

Borowski would like more information on the rehabilitation program he's been required to rely upon when allowing a prison sentence to be converted to extended supervision in the community. "We get information from the Department of Corrections, it's usually just a one or two page letter," Borowski tells 27 News. "There have been many judges across the state that have been concerned about this program."

A spokesperson for the Department of Corrections has yet to respond to a request for comment from 27 News on the program's features and efficacy.

Borowski and some other judges have begun to reject completion of the state prison treatment program as grounds for a repeat OWI offender's early prison release.

Milwaukee County Judge T. Christopher Dee forced three repeat OWI offenders to remain in prison Feb. 7 when he issued a ruling hinged on a court's responsibility to the more recently-enacted law. "Its duties do...include the duty to ensure that the minimum mandatory...confinement time is served," Dee said.

"I believe the legislature intended...if three years is the mandatory minimum in custody, period, they meant that person must serve a mandatory minimum of three years," Borowski says.

Sen. Alberta Darling (R-River Hills) was one of the state senators who introduced the bill that became the mandatory prison term law. Rep. Jim Ott (R-Mequon) was a bill co-sponsor. Neither Darling nor Ott provided comment to 27 News on the bill's intent.

Borowski's rejection of one, proposed repeat OWI offender's prison release is being appealed.

The Milwaukee Journal Sentinel reports an attorney for the three offenders kept locked up by Dee argues a judge can honor the mandatory prison term law at the time of sentencing, and grant a later, early release under the terms of the older law, without legal issue. The attorney declined comment to 27 News.

Repeat OWI offender Varnes harbors no illusions about any treatment being foolproof. But he says almost all drunken drivers in prison are released at some point and the older law's incentive for an offender to complete rehabiliation is more constructive. "Throw away the key I don't think makes any sense," he says.

Borowski stands by keeping the most serious, repeat OWI offenders locked up, but realizes a higher court may decide on state law's loophole.

"I think eventually that's going to have to be decided by the Court of Appeals or maybe the Supreme Court."

Tony Galli

Reporter, WKOW

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