Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, June 2, 1994 TAG: 9406020054
SECTION: VIRGINIA PAGE: A1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Long
Jacobs, 24, pleaded guilty to second-degree murder for causing an automobile accident that killed Brenda Jones on Oct. 16 on the Roy Webber Highway.
In the past, drunken drivers who caused fatal accidents have been charged with involuntary manslaughter. But Roanoke prosecutors chose to charge Jacobs with murder, arguing that an earlier DUI conviction and subsequent counseling he received gave him prior warning of the dangers of his actions.
Assistant Commonwealth's Attorney Greg Phillips said the case will have implications for other repeat DUI offenders who cause fatal accidents.
"This is like the Roe vs. Wade of DUI law," Phillips said. "We're going into uncharted territory. We're sending a message to an at-risk group ... that if they drive drunk again and kill someone, they're going to be indicted for murder."
If the case had gone to trial, prosecutors would have been required to prove malice, the legal element that distinguishes murder from manslaughter. In 1984, the Virginia Supreme Court overturned a second-degree murder conviction for a DUI-related fatality, ruling there was no proof of malice.
Phillips maintained Jacobs' case was different because of his earlier DUI conviction in 1991 and the court-ordered education he received from the Virginia Alcohol Safety Action Program.
"This case is about holding him accountable for the education he received in that program," Phillips said.
Defense Attorney Tony Anderson said he did not believe prosecutors could prove second-degree murder. Nonetheless, Jacobs decided to accept a plea agreement reached in Roanoke Circuit Court because it limited his potential punishment.
As part of the agreement, Phillips agreed to ask for no more than nine years when Jacobs is sentenced next month. Second-degree murder carries up to 40 years in prison, and lawyers said a jury might be inflamed by recent high-profile cases in the Roanoke Valley involving DUI-related traffic fatalities.
Even if a judge had not allowed a jury to consider a murder charge, Anderson said, Jacobs would still have faced up to 20 years on a charge of aggravated involuntary manslaughter.
Given that there were uncertainties in the prosecution's case as well, Anderson said, "It was a risk-associated plea agreement that worked for both sides."
A case like Jacobs' will have to reach an appellate court to have any far-reaching implications, said Roger Groot, a professor of law at Washington and Lee University. So far, he said, none has.
"The theory is that when you have an educated drunk, you can use that education to make out malice," Groot said. "The prosecution had a viable theory, but it's one that has not been tested."
Although Jacobs' guilty plea will not carry any precedent over other cases, Roanoke prosecutors say they plan to seek murder indictments in similar cases in the future, unless instructed otherwise by a higher court.
The next test of the theory could come in Botetourt County, where police are investigating a traffic fatality last month allegedly caused by someone with two prior DUI convictions.
Lawyers said Jacobs' conviction was the first of its kind in Roanoke, and possibly in the state.
"I've never heard of something like that," said John Holloran of Harrisonburg, chairman of the criminal law section of the Virginia Trial Lawyers Association.
"I don't know how you could ever prove malice," he said. "You've got to show something besides reckless disregard" - the legal element required for a manslaughter conviction.
In legal instructions read to juries, malice is defined as the state of mind that results in the intentional doing of a wrong act to another.
Thus the question in Jacobs' case, if it had gone to trial, would have been: Was his intent when he got in his car that night, to drive home or to kill someone?
According to Phillips, Jacobs "began to write the obituary for Mrs. Jones" more than 24 hours before the accident, when he started staying up late and drinking. Phillips gave the following summary of what happened:
On the night of Oct. 16, Jacobs had been playing guitar in the band Nastification at a Roanoke nightclub. After drinking beer there, and later at the home of a band member, Jacobs decided to drive home about 5:20 a.m.
His girlfriend has told police that she thought Jacobs was too intoxicated and tried to talk him out of driving. But Jacobs insisted that he follow her home in his own car.
Traveling no more than 40 mph on Webber Highway near the Elm Avenue exit, Jacobs fell asleep and drifted off the right side of the road. His car struck the guard rail, veered across the median and ran into oncoming traffic.
His car collided head-on with a car driven by Jones, who was on her way to work at the gift store of Roanoke Regional Airport. The first person on the scene said Jones, 41, was still alive - pleading "Help me, help me" - while Jacobs lay snoring in his wrecked car. Jones died about 10 minutes later.
Jacobs was sent to the hospital in critical condition. A blood test later showed that his blood-alcohol content was 0.22 percent, more than twice the level at which someone is considered too drunk to drive.
In court Wednesday, Jacobs was still wearing an arm brace for the injuries he suffered. He entered a so-called "Alford plea," maintaining his innocence but acknowledging that the risk of conviction was high enough to make pleading guilty in his best interest.
Jacobs also pleaded guilty to a charge of driving under the influence as a subsequent offense. He faces up to 12 months in jail on that charge.
Keywords:
ROMUR
by CNB