Phoenix New Times
May 25, 2008
Editor’s Note: As the story below demonstrates, we have become a nation of meddlesome, busybody snoops, turning in our neighbors to the police and wrecking their lives.
The businessman was meeting with clients for lunch at Mimi’s Café when he noticed the woman. Sitting a few tables over with her 4-year-old boy, she seemed groggy — yet she was drinking a mimosa. It got worse. The woman ordered a glass of white wine, then another. She was so out of it, the businessman would later write in a statement to police, that she looked ready to fall asleep at the table.
When the woman paid her bill and left the restaurant, the businessman was right behind her, cell phone in hand. When she ran a stop sign in the parking lot, he called the police.
By the time the cops showed up a few minutes later, the woman already had parked at the Chandler Mall, less than a mile from Mimi’s. She was buying bath salts when the businessman pointed her out to the cops.
Thanks to the businessman’s intervention, Shannon Wilcutt was eventually charged with three felony counts: a DUI above 0.08, a DUI with a child under 15 in the car, and drug possession.
Justice served, right?
Turns out, those glasses of white wine were actually water. Wilcutt was groggy because she’d just had dental surgery. She’d thought a mimosa might be soothing, but when it stung her sutures, she pushed it away half-finished.
The proof is in the police report: Wilcutt’s blood alcohol content was only 0.02, the equivalent of one drink. She wasn’t even close to the legal limit.
No matter. Shannon Wilcutt was busted anyway. Her little boy was taken from her as she was handcuffed, arrested, and entered into the justice system. That meant weekly random alcohol tests, weekly phone calls to a court-appointed “counselor,” and the looming possibility of heavy fines and a three-year license revocation, not to mention jail time.
It would take two years and thousands of dollars for Wilcutt to be vindicated.
Here’s what really happened.
Shannon Wilcutt wasn’t a big drinker, and she’d certainly never been in trouble with the law before. Her husband, Bryan, is a software engineer working on his doctorate in computer science. Shannon is a homemaker who’s taking classes at the University of Phoenix, though at the time of her arrest she worked in Walgreens’ inventory department. The couple have three boys and a home on a quiet street in the older part of Chandler.
On the morning of May 18, 2006, Wilcutt, then 34, underwent surgery to remove a bad set of dentures. The dentist used Novocain but didn’t knock her out. After the procedure, her dentist cleared her to leave — and prescribed hydrocodone for the pain. (That medication is a generic form of Vicodin.)
Too tired to cook, Wilcutt took 4-year-old John to Mimi’s Café, a chain restaurant. She ate soup and a muffin and drank half a mimosa, but the orange juice irritated her mouth, which was raw and sore from the surgery. Feeling dehydrated, she switched to water. The waitress brought her goblet after goblet.
At the very end of the meal, Wilcutt took one hydrocodone pill. She wanted to stop at the mall and get bath salts, a trip she estimated at 10 minutes, max. She figured the pain pill would kick in as she reached her house and settled into the tub.
She didn’t realize that Steven Ceballes, the aforementioned businessman, had already made a phone call.
Ceballes is the owner of a commercial landscape company called Horticulture West. Dining with clients, he noticed that Wilcutt was woozy. He suspected alcohol, according to a statement he gave police, so he called the cops. He then followed Wilcutt’s minivan to the Chandler Mall to point her out to the officers. (Reached by phone, Ceballes declined comment and told New Times not to include his name in this story. Then he hung up.)
At the time, Wilcutt was suffering from numerous health problems. She was significantly overweight, asthmatic, and had a herniated disc in her back. So although she did fine on some of the field sobriety tests, like counting to 30, she had difficulty walking and turning and standing on one leg.
She was also freaking out. She felt herself gasping for breath; right in front of the police officers, she took a hit on her inhaler.
Numerous academic studies have shown that inhalers can artificially increase a breathalyzer’s blood alcohol reading. But the cops administered the breath test anyway, just minutes after she used her inhaler, Wilcutt says. Sure enough, it gave an inflated reading of 0.048.
Even that, of course, is well under the legal limit. But the cops were convinced Wilcutt was impaired, possibly by drugs. She said she’d taken one hydrocodone pill, but they were convinced she’d had at least two. The police report notes that Wilcutt’s eyes were heavy and “her speech was slow and slurred.”
“I had no teeth in,” she says now, laughing. “I had just had my dentures removed, remember?”
The sketchy sobriety tests, plus Wilcutt’s admission that she’d taken a hydrocodone pill, were enough to book her. She was handcuffed and taken to a jail cell, where she waited for her husband to pick her up. (John, terrified, was separated from his mother and taken to the police station to wait with the officers.)
It took nearly five months for DPS to return Wilcutt’s drug screen. Turns out, she had taken just one hydrocodone, the prescribed dosage. Meanwhile, her blood test confirmed Wilcutt’s protestations that she hadn’t been swilling wine. Blood tests are significantly more accurate than portable breathalyzers like the one police initially used. Wilcutt’s test put her blood alcohol content at 0.022 — way under the legal limit of 0.08.
Chandler Police Detective David Ramer tells me that didn’t matter. A witness said she was driving badly. (Never mind that the witness also mistook water for wine. Makes you wonder about his powers of perception, doesn’t it?) They also knew she’d been driving with a little kid in the car. And there was hydrocodone in her blood — the fact that it was legally prescribed doesn’t matter if it affected her driving. Police are still convinced it did, Ramer says.
So police recommended three felony charges. The county attorney agreed.
Something weird happened in the process. Chandler Police had recommended that Shannon Wilcutt be charged with “being impaired to the slightest degree,” a charge that allows cops to use discretion and charge someone with DUI, even if their blood alcohol content is as low as 0.02. But when the Maricopa County Attorney’s Office indicted her, Wilcutt was instead charged with DUI above 0.08 — a ludicrous charge on its face, and one that prosecutors could never possibly prove in court. (The County Attorney’s Office did not respond to requests for comment.)
Ultimately, though, the details didn’t matter. In cases like these, it’s still up to the accused to prove innocence, or face trial. And Shannon Wilcutt was never going to plead guilty to any charge of driving while impaired.
“I’m Italian-Irish,” she says, describing her willingness to fight. “And I knew I wasn’t guilty.”
She had an added incentive. The Wilcutts were in the process of getting approval to adopt a pair of kids out of the foster care system. They worried that, even absent a conviction, the nature of the charges could derail their plan.
Last month, the county attorney dropped all charges. The part that still stings? The Wilcutts can never recoup the $12,000 they spent in legal fees, money they had to borrow money from friends and family.
“We essentially didn’t have a Christmas because we were making payments to people,” Bryan Wilcutt says.
The Wilcutts’ adoption plans are moving forward. They’re excited about adding to their family.
But it’s hard to put the events of last year behind them.
“These were just bizarre circumstances that collided in one day to cause this,” Bryan Wilcutt acknowledges. “But there are checkpoints that should make sure that a case like this doesn’t go any further.
“When they saw the results of her blood and alcohol tests, this should have all gone away.”
Your immediate reaction to that story is probably much like mine. Yes, it’s scary, and it cost the Wilcutts plenty, but it was an aberration. The circumstances were bizarre. You and I have nothing to worry about.
Then I talked to Diana Sifford.
Sifford, 52, is a slim, attractive woman with a job in midlevel management at a local healthcare company. She was at first nervous about telling her story; she knows people immediately jump to conclusions, and she’s not sure she wants to put herself out there. Plus, she’s passionately opposed to drunk driving — she wants to make that clear.
Her story, though, is just as frightening as Shannon Wilcutt’s.
Sifford was driving home from a George Thorogood concert last October. It was the first time she’d gone out in months; she’d had back surgery five weeks before and was taking time to heal up. The concert was fun, but by midnight, she was looking forward to bed.
Sifford was just a mile from her house when she noticed a car stopped by police, and she slowed down to rubberneck. “I have two boys in their early 20s,” she explains. “Every time I see a cop car, or an accident, I automatically think of my boys.”
But she passed too close to the parked car. That was her one mistake. The next thing Sifford knew, she was charged with DUI, driving under the influence of drugs, unsafe passing of an emergency vehicle, and failure to drive in a single lane.
She’d had only one glass of wine. She’d been the designated driver.
The crazy thing is that police knew that when they charged her. The breathalyzer put her blood alcohol content at 0.03, well below the 0.08 legal limit.
But the Scottsdale police were convinced Sifford was on drugs. Without evidence, the officer kept hassling her about whether or not she’d used cocaine at the concert, Sifford says. And when Sifford volunteered that she’d taken a Vicodin earlier in the day because she was still suffering the effects of surgery, they surely thought they had her. That’s where the “driving under the influence of drugs” charge came from.
A urine test, performed by officers that night, revealed not even a trace amount of Vicodin. She’d taken the pill so many hours earlier that it had passed out of her system entirely. And, of course, there was no coke in her blood, either.
Diana Sifford wasn’t drunk, and she wasn’t high. She just drove too close to a parked car.
She was handcuffed, taken to the station, and booked. Her car was impounded. In great pain from sitting while handcuffed, with a tender back, and exhausted, she wasn’t released until early morning.
A cop friend told her not to hire a lawyer and to tell the truth at her pretrial hearing and that she’d be okay. But the pretrial hearing was a cattle call — she had just five minutes with the prosecutor, who offered to drop the other charges if she pleaded guilty to the DUI.
Sifford was not about to do that. After the judge refused to listen to her story — refused to even look at the paperwork she’d brought — she knew she had to hire a lawyer.
It cost her about $3,000, but it worked. In January, Sifford pleaded guilty to a single charge of not staying in her lane and agreed to a defensive-driving class.
“I had to go through this ordeal for four months,” she says. “Not sleeping. And it was basically a $3,000 traffic ticket.”
But I was struck by something as I talked to Sifford. She begged me not to read too much into the police report — in the officer’s account of her field sobriety tests, she was sniffing constantly, her pulse was above normal, and she swayed. Reading that, without the results of the urine test, you might assume she was coked-up.
But that’s the thing about these reports. You can see it on Shannon Wilcutt’s, too.
Shannon Wilcutt had a 0.02 blood alcohol content, but the police report notes a “moderate” odor of alcohol on her breath. How is that possible? It also says that her speech was “slurred” and she had dried blood on her lips. That couldn’t possibly be related to dental surgery, could it?
And what about Diana Sifford’s rapid pulse? Could it be that she was simply anxious about being pulled over?
The cops were building their cases; it was up to Wilcutt and Sifford to find lawyers willing to ferret out the truth.
The officers are only doing their job, but their job is to bust drunk drivers. That’s what the Legislature wants, what the governor wants, and what the public wants. From the minute the cops pull you over, they assume you’re drunk.
It’s your job to prove yourself innocent.
Frightening. And it’s also frightening to think how much overtime money, how many grants from the state and federal government, goes toward busting drivers like Shannon Wilcutt and Diana Sifford. Not to mention paying public defenders in cases where the defendant can’t afford a lawyer.
Keeping dangerous drunks off the road should be a priority for all of us. If that means major penalties for a first offense, if that means mandatory Interlock for first time offenders — heck, even if it means yet another “public health” campaign plastering County Attorney Andrew Thomas’ mug on billboards across town — it’s hard to argue against it.
The problem comes when the focus shifts from stopping real drunks to punishing people who’ve had only a glass of wine or half a mimosa. It’s also troubling, I think, when the punishment isn’t commensurate with the crime. Studies have shown that drivers chatting on their cell phones are just as dangerous as those who’ve had a few drinks. So why should we want to slap three felonies on a woman who’s had half a mimosa — when we give a mere citation to drivers impaired by their cell phone use?
Last year, Phoenix was one of the first municipalities in the Valley to pass a law banning text messaging while driving. Good move, right? But the fines and fees amount to less than $500 even in a case in which an accident is involved. Contrast that with someone who’s had a few drinks and gets into an accident — you can bet that driver’s not getting off without jail time, even though the damage is the same.
It all comes down to our attitude about drinking. Groups like MADD have done such a great job humanizing the victims of drunk drivers, but we forget about the bigger picture. ADOT statistics show that in 94.5 percent of all car accidents in Arizona in 2006 (the most recent year available), drivers involved had not a drop of alcohol in their systems. Six times as many accidents were caused by speed as by alcohol impairment.
But we still want to throw the book at tipsy drivers — even tipsy drivers who aren’t involved in crashes. Thanks to new laws passed by the Arizona Legislature last year, DUI penalties here are among the toughest in the nation.
For a first DUI, even if the driver never hit anything and is barely above the legal limit, the penalty is still 10 days in jail, $1,500 in fines, and an interlock device on the car for a year. (It’s worse if you’re extremely drunk. Get popped with blood alcohol content of 0.20, and even if it’s your first offense, you’re looking at 45 days in jail, $6,300 in fines and fees, and an interlock device for 18 months.)
And what about Shannon Wilcutt? With a child under 15 in the car, her offense was automatically a felony. She could have faced up to $150,000 in fines and fees, plus jail time.
The possibility of such harsh punishment is having a serious effect on the system, and it’s not necessarily what lawmakers intended. Karyn Klausner is a former municipal court judge who now handles numerous DUI cases as a lawyer at the Gillespie Law Firm in Phoenix. She says more and more defendants are choosing to pay for lawyers — and go to trial — rather than face the Legislature’s mandatory minimums. And the defendants are winning.
“In many instances, people don’t have anything to lose by going to trial,” Klausner says. “So we fight like hell. It’s inundating the prosecutors, costing the state lots of money — and they’re losing. These are decent prosecutors, but in a trial, you never know what’s going to happen.”
And here’s the sick part. Harsh penalties make defendants squirm, but studies show that they don’t actually prevent drunk drinking.
It’s way too soon to see what effect Arizona’s new DUI laws are having. It’ll be at least two years before we have any data that show whether there’s been a change in accident rates.
If history is any indicator, though, we may be disappointed.
Alexander Wagenaar is a professor of epidemiology and health policy at the University of Florida. He doesn’t share my views about social drinkers; he admits he’d like to see the United States set the legal limit even lower than 0.08, as it is in Europe.
But Wagenaar has made his name by studying what actually reduces drunk driving — and his results might surprise Arizona legislators. Mandatory jail time and heavy fines, his studies conclude, are not effective deterrents.
Far more effective, researchers have found, are immediate license revocations. If it happens quickly, and happens to everyone who’s busted, revocation can be a serious deterrent, Wagenaar says.
“If you’re arrested for a DUI, and a year later you end up getting a $1,000 fine and a weekend in jail, that’s a lot less effective of a deterrent than sitting at the roadside at 2 a.m., watching as they tow away your car,” he says.
The point of long jail sentences and fat fines isn’t deterrence — it’s punishment, Wagenaar says.
“If a driver is endangering the lives of others, then justice demands you have a penalty. But whether it’s the most effective preventative tool is a much more open question.”
Nearly a year ago, I wrote about 83-year-old Phil Cisneros. His case doesn’t have the most immediate link to Shannon Wilcutt and Diana Sifford, because Cisneros really was guilty — his blood alcohol content was well above 0.08.
But what happened to Phil Cisneros last year says a lot about our attitude toward DUIs and, indeed, toward anyone who gets caught in the criminal justice system here.
Here’s the backstory: Cisneros had racked up a number of DUI convictions in the 1980s while his wife fought Alzheimer’s and soon after her tragic death. But then he remarried, and seemed to be walking the straight and narrow. He stopped driving, for one thing; his neighbors in Maricopa would later aver to the court that they never saw him behind the wheel of a car. (See “Death Sentence,” June 21, 2007.)
Then, returning from a trip to Mexico as a passenger in his new wife’s car in early 2007, Cisneros was flagged by the border patrol and hauled away to jail. Turns out he had been convicted in absentia for his last DUI, in 1998, and had never showed up to serve his sentence.
Last spring, Gila County Judge Robert Duber sentenced him to three years in prison.
Not jail. Prison.
Cisneros’ family — a huge, close-knit group — begged the judge. They said that the old man suffered from a host of health conditions: prostate cancer, diabetes, pulmonary hypertension, sleep apnea, shingles, and shortness of breath. He’d already had double bypass surgery.
He would surely die behind bars.
But the judge wouldn’t relent. Neither, in fact, would the public. After I wrote about Cisneros’ case, urging leniency, I heard from several readers who thought I was crazy. He’d driven drunk, they argued. He could have killed someone! (Never mind that, for all his DUIs, Cisneros had never hit anything, much less actually killed someone.) One man commenting on New Times’ Web site said that drunk drivers were worse than drug dealers. Let ’em rot.
Well, those people got their wish. Phil Cisneros was repeatedly hospitalized during his prison stay, his lawyer, Jason Squires, tells me. Last month, he had a heart attack.
Cisneros had perfectly good insurance — he’d worked for a copper mining company. But because he was a ward of the state, we taxpayers had to foot the bill when Cisneros was checked into the hospital time and time again this winter. When he had his heart attack, we picked up the bill for his care.
Even worse, Cisneros’ family had to deal with the pain of seeing their patriarch handcuffed to his death bed. That’s the rule for incarcerated people who end up in the hospital, even a non-violent guy like Phil Cisneros.
The family petitioned Governor Janet Napolitano for clemency: His death, they said, was imminent. Her board of executive clemency recommended his release, unanimously, on March 4.
Three days later, the governor commuted Cisneros’ sentence.
His handcuffs were removed, and he was moved to hospice, but the damage of nine months in prison was done.
Phil Cisneros died two days later, on March 9.
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