Clark County DA’s use of murder charges in DUI cases challenged

The new trend of charging motorists with murder in Southern Nevada, revealed by a Review-Journal analysis of court records, has occurred mostly in drunken driving crashes, although in two cases the drivers were otherwise charged with reckless driving. The practice is controversial because defense attorneys say the law doesn’t allow for it.

Attorneys with the Clark County public defender’s office, P. David Westbrook and Deborah L. Westbrook, attempted to stop the practice through an emergency motion filed with the Nevada Supreme Court that sought the dismissal of a murder charge in one of the cases.

The Supreme Court denied the request in an order Wednesday but indicated the issue remains unsettled because the motion “raises significant questions of statutory interpretation.”

David Westbrook said in an interview before the ruling that he expects the court will put an end to the practice.

“The district attorney’s office is ignoring Nevada case law,” he said. “What it boils down to is (prosecutors) are acting as the Legislature. Our Legislature has already spoken as to what the penalty is, and what crime occurs when someone is under the influence (while driving) and they kill someone.”

Clark County District Attorney Steven Wolfson contends that charging a motorist who engages in reckless behavior behind the wheel and kills someone with second-degree murder is not barred by law. He also said the problem of drunken drivers causing fatal crashes in Southern Nevada is significant and his office is acting to protect the public.

“I disagree that it is prevented by law,” Wolfson said. “It is unclear, which means we are not precluded or prevented. Now if the Supreme Court at some point tells me I can’t do it, I’ll stop doing it. But they haven’t told me I can’t, so I’m going to proceed along this fashion.”

The charged

The Review-Journal analysis of court records shows five defendants originally accused of driving under the influence in deadly crashes, while two others were accused of reckless driving, but not driving under the influence. The seven defendants are:

— Ronald Leavell, 50, is accused of causing a May 2017 crash that killed Gerardo Villicana Jr., 26. Authorities said Leavell was high on marijuana and speeding, traveling at speeds between 70 and 142 mph through a residential neighborhood. Leavell is scheduled to go to trial on Dec. 2 in District Court. Leavell is named in the emergency motion that was before the state Supreme Court.

— Kevin Raspperry, 35, is accused of driving on a revoked license at a high rate of speed, with drugs and alcohol in his system, before running a red light and killing Marcial Escobia, 65, on Oct. 27. Wolfson said Raspperry had two prior driving under the influence convictions and was driving 85 mph at the time of the crash near Tropicana Avenue and Rainbow Boulevard.

— Aaron Kruse, 24, is accused of causing a Nov. 9 crash that left two people dead. Wolfson said Kruse was driving at approximately 115 mph at the time of the accident on Boulder Highway. Killed were Norma Rosario Ortiz, of Las Vegas, and Alfonso Bueno Toxqui, 49, whose 2006 Toyota Corolla was rear-ended and burst into flames.

— Aylin Alderette, 26, was charged after a crash that killed Levi Echenique, 8, in September 2018. Authorities said Alderette had marijuana in her system and was driving recklessly at more than 100 mph at the time of the accident near Harmon and Eastern avenues. Alderette pleaded guilty to second-degree murder and driving under the influence. She was sentenced to at least 26 years in prison.

— Jorge Cardenas, 59, is charged with driving a vehicle that killed a bicyclist on Flamingo Road east of the strip. Cardenas was previously convicted in 2012 of driving under the influence and reckless driving resulting in substantial bodily harm. Authorities said he was driving at 80 mph on Flamingo Road east of the Strip when he struck and killed 55-year-old Eusebio Mendez-Mateo in January.

— Joshua Buckingham is accused of driving over 100 mph in March before crashing his vehicle into another in Boulder City. The crash killed 58-year-old Randy Reiner of Las Vegas. Buckingham, 27 at the time of the crash, is charged with reckless driving rather than DUI and second-degree murder with use of a deadly weapon.

— Jonathan Mora, 24, is charged in a crash that killed his nephew, 10-year-old Zion Jimenez, in September 2018. A court document suggests Mora was driving at 117 mph at East Vegas Valley Drive and South Mountain Vista Street at the time of the crash.

Absent from the list is prominent Las Vegas real estate broker Scott Gragson, 53, grandson of a former mayor of Las Vegas. Gragson is charged with DUI resulting in death, DUI resulting in substantial bodily harm and four counts of reckless driving. Authorities allege Gragson was driving a vehicle involved in a high-speed rollover crash in May at The Ridges, an upscale Summerlin community, which killed 36-year-old Melissa Newton and injured three others.

Legal arguments

The Westbrooks argued in their emergency motion with the Supreme Court that both Nevada case law and legislative history make it clear you cannot charge a motorist with murder absent a specific, deliberate intent to kill. Deborah Westbrook said that in one case from 1984, it was determined that Nevada’s DUI statute supplies the exclusive punishment for deaths resulting from impaired driving.

“That very next year, the next legislative session, the Legislature presented a proposed bill — Assembly Bill 195 — (authorizing a murder charge against a DUI suspect), which did not pass,” she said, adding that instead lawmakers approved a bill increasing the maximum penalty for DUI causing death to 20 years.

The motion filed by the Westbrooks also pointed to the Gragson case as evidence that the murder charges are not being applied equitably.

“The facts of Mr. Gragson’s alleged crime seem remarkably similar to all five of the (DUI) cases in which the state has elected to charge second-degree murder,” it said.

“At best the decision to charge Mr. Leavell and others with second-degree murder was merely arbitrary,” the attorneys wrote. “At worst it provides proof of an equal protection violation — a rich white man being treated differently than poor minorities. Either way it is an example of the slippery slope that will be created if the state is allowed to create its own legal standards.”

Wolfson did not address specifics of the Gragson case but said that in every case a team of prosecutors meticulously analyzes the known facts before deciding on charges.

In the cases resulting in a murder charge, Wolfson said, “There was an increased level of behavior on the part of these offenders, which separates these offenders from the typical DUI death case.”

Wolfson said that there is a traffic accident involving a fatality about every three days in the Las Vegas Valley and that residents are well aware of the carnage caused by drunken driving. He said driving under the influence causing death is a crime punishable by two to 20 years in prison for each count. Second-degree murder, meanwhile, is punishable by a sentence of 10 years to life in prison. He said a message needs to be sent to the public that if you drink and drive in the valley and kill someone, you will face severe consequences.

“The standard for murder is the willful, wanton disregard for human life,” Wolfson said. “It is a high degree of recklessness.”

Wolfson said he has had at least 30 people thank him for pursuing murder charges in cases involving reckless drivers under the influence.

“My job is to punish, and deter, and to seek retribution and rehabilitate,” Wolfson said. “Deterrence is what we are trying to accomplish.”

P. David Westbrook said the Supreme Court ruling this week in the Leavell case is not the end of the issue. The court did not address the merits of the Leavell motion but said the court felt there was not enough time to consider the issue before Leavell’s trial.

“The court recognizes that this is an important issue, and I completely agree that they should not rush their finding. However, this puts my client in a terrible position,” Westbrook said.

Westbrook said Leavell is being held on an unconstitutionally high bail amount of $100,000. The trial is scheduled for Dec. 3, and Leavell will decide whether to have his trial or request a stay of the proceedings “so the Supreme Court can decide this matter.”

Contact Glenn Puit at gpuit@review-journal.com or 702-383-0390. Follow @GlennatRJ on Twitter.