Family of 7 crash victims calls DWI bill too weak

Advocate Photo by MARK BALLARD -- Johnny Gaines Sr., right in green suit, Marcus Gaines, center, and John Gaines Jr., left, came to the State Capitol Monday to protest legislation that is supposed to stiffen penalties for drunks drivers who kill but includes blood alcohol levels too high to apply to the man responsible for the death of seven family members and friends in a May 2012 collision. The state Senate is scheduled to vote on Senate Bill 55 later Monday. Show caption
Advocate Photo by MARK BALLARD -- Johnny Gaines Sr., right in green suit, Marcus Gaines, center, and John Gaines Jr., left, came to the State Capitol Monday to protest legislation that is supposed to stiffen penalties for drunks drivers who kill but includes blood alcohol levels too high to apply to the man responsible for the death of seven family members and friends in a May 2012 collision. The state Senate is scheduled to vote on Senate Bill 55 later Monday.

Her surviving sons said penalty-toughening legislation considered Monday by the state Senate would not apply to the drunken driver who killed their mother and six others in a May 2012 collision.

Holding a police photograph of his dead mother’s mangled body, John Gaines Jr. said the blood-alcohol level being sought in Senate Bill 55 to trigger longer sentences is too high. “Brett Gaston Gerald had a 0.15 blood-alcohol level and he killed seven people. Don’t you think that’s a crime of violence?” Gaines said.

He, his family and friends protested the legislation on the steps of the State Capitol during the lunch hour Monday.

The 39 state senators convened at 4 p.m. and unanimously approved SB55 without debate. The legislation goes to the Louisiana House.

State law finds that a blood-alcohol content of 0.08 percent is considered presumptive evidence of drunken driving.

Getting behind the wheel of a vehicle at anything above that level satisfies the provision that the driver knew or should have known that the result could be death or serious bodily harm to another, Gaines said. A blood-alcohol level at almost triple is simply too high and endangers the driving public, he said.

The pain his family has gone through over the past two years is proof, Gaines said.

A state trooper who investigated the May 2012 crash that killed Gaines’ mother testified earlier that an analysis of a blood sample taken at Lane Regional Medical Center showed Gerald’s blood-alcohol content was 0.15 percent.

Gerald had three other DWI arrests before the crash and one conviction.

SB55 adds vehicular homicide, when the convicted offender’s blood-alcohol concentration exceeds 0.20 percent, to the list of 44 crimes that can be designated a crime of violence. With that finding, courts can sentence offenders to longer terms in prison and negate many of the early release programs.

State Sen. Bob Kostelka, R-Monroe and the bill’s sponsor, said the purpose of SB55 is to set a bright line in defining “intent,” which is a necessary component in finding an offender committed a crime of violence.

Louisiana’s appellate courts and the Supreme Court have had such difficulty defining “intent” in these circumstances.

The issue is just when mistakenly having one too many alcoholic drinks becomes the point of intent; that is, when the driver knew or should have known that driving drunk could result in death or serious bodily harm.

Kostelka said the Louisiana Law Institute came up with the 0.20 level at which the person is clearly drunk and should know that the drunken condition inhibits the ability to operate a vehicle.

Five people in a 1996 Mercury Grand Marquis driving on La. 67 about a mile south of the Comite River in East Feliciana Parish died instantly in the collision with Gerald’s 2007 Dodge pickup: the driver, Brenda Gaines, 64; Denise Gaines, 33; Diamond Johnson, 12; Jyran Johnson, 6; and Angela Matthews Mosely, 36, all of Baton Rouge.

Two other passengers, Willie Gaines Jr., 15, and Rogerick Johnson Jr., 13, also of Baton Rouge, died several days later.