What’s fair? – How two men in similar DUI crashes got widely different sentences | TheUnion.com
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What’s fair? – How two men in similar DUI crashes got widely different sentences

Both men were driving drunk, both nearly killed two people as they barreled down a road, and both had a prior history of drunken driving and alcoholism.

But while John Wiversoll was sentenced to sit in prison for more than nine years, Leland Buffington will not see more than a year in jail, assuming he follows several requirements, including a strict alcohol-rehabilitation program.

To some, it might seem that Wiversoll received an overly harsh sentence, or that Buffington was let off easy since the crimes were largely similar.



“I don’t get why the other guy got nine years and this guy got one year in jail,” said Chris Thompson, whose wife and daughter were struck by Buffington. “He hit my wife and baby. This is not a punishment.”

Wiversoll’s wife, Sandra, was equally stunned by Buffington’s sentence. “I was shocked and angered when I read the newspaper last week. I have a 4-year-old and a 10-year-old that desperately miss their dad.”




She admitted that much of her anger was directed not toward Buffington getting one year in jail, but toward her husband’s heavier sentence.

“They were different, but they had a lot of similarities,” she said. “Something is wrong with the system and with the judges.”

But such simple comparisons are not really possible in the legal world, where different judges look at different suspects with different evidence. Each case is unique, agree prosecutors and defense attorneys.

“I think ultimately it came down to one judge considering all the facts in one case, and one judge considering all the facts in another case, and just coming to different conclusions about what the proper sentence should be,” said Deputy District Attorney Dave Walters, who prosecuted both Wiversoll and Buffington.

Two terrible days

On Dec. 21 2003, 10-year-old Billy and 11-year-old Emily Rose were riding with a school friend and the boy’s father, John Wiversoll, to his home for a sleepover. Wiversoll, who had been drinking heavily before getting into the car with the three kids, rounded a turn in Alta Sierra, lost control of the van and slammed it into a tree.

Billy and Emily Rose suffered severe injuries that put them in the hospital for six weeks. More than one year later, both are still experiencing effects from the crash.

Five months after Wiversoll’s crash, Sarah Thompson and her infant daughter were victims to another drunken driver. This time, Leland Buffington was behind the wheel.

Sarah and Chris Thompson were walking along Sutton Way on May 18 with their 4-year-old son, Nathaniel and their 5-month-old daughter, Mya.

Buffington had already drank about 15 beers in addition to a half pitcher of beer when he decided to get into his truck parked outside a pizza parlor. He jumped a curb near where the Thompson family was walking, and his truck hit the mother and infant from behind.

Both were hospitalized for a month, and Sarah Thompson was kept from her children for an additional month so she could recover. Now, while Mya’s small skull fracture has healed, Sarah Thompson said she still experiences migraines, memory loss and back pain.

Deputy District Attorney Dave Walters said he believes there was a strong enough link between the suffering experienced by the two families, and he questioned the judges’ varied solutions for punishment – an issue he addressed during the Feb. 24 sentencing of Buffington:

“I felt that there were enough similarities between the two cases that the court should consider what was done in the Wiversoll case in what to do in the Buffington case,” Walters said.

D. Michael Phillips, Buffington’s lawyer, said he was surprised to hear this statement from a prosecuting attorney.

“At first blush, you are right, (there are similarities). But if you talked to both and learned their individual histories, there is much more to a case than three or four factors that seem similar. There are at least 20 different factors that a judge has to consider (in sentencing).”

A shared addiction

Nevada County Judge Robert Tamietti, who was not involved in either the Buffington or Wiversoll cases, said that judges consider many factors before sentencing someone – such as the severity of injuries to the victims, victim impact statements, the defendant’s criminal history and his or her chance to re-offend.

This is where more of the striking similarities between Buffington and Wiversoll continue to emerge. Neither defendant had graduated from high school and neither had a violent or criminal past. Both defendants apologized to their victims for the first time at their sentencings. And both had a serious history of addiction.

Driving while drunk was nothing new to either Wiversoll or Buffington – and both admitted to being alcoholics.

Buffington’s alcohol abuse extends back to the 1970s and ’80s, when he was convicted three times for driving under the influence. After this crash, Buffington began attending Alcoholics Anonymous with devotion, said family members, marking the first time he ever received treatment for his addiction. And as part of his sentence, he will have to undergo one year and nine months of intensive recovery programs.

This was not the case for Wiversoll, who has been through alcohol recovery programs before and after two DUI arrests in the 1980s.

Wiversoll’s attorney said his client had resumed drinking less than a year before the crash. He reportedly was prompted back into alcohol abuse by pain and depression from an accident at work.

Although both attorneys pleaded for their defendants to be considered for rehabilitation programs over jail time, the judges in each case opted to handle their history of alcoholism in different ways.

Bill McNamara, an expert witness who evaluates individuals’ potential for success in treatment programs, testified in favor of Buffington.

“The court relied on (McNamara’s testimony) a lot, that he is a good candidate to do rehabilitation,” Phillips said about the reason why he felt Judge Patrick Riley gave his defendant a largely rehabilitation-based sentence.

Judge Albert Dover, on the other hand, said at Wiversoll’s sentencing that “the alcoholism factor … isn’t really what’s being punished here.”

Instead, it was the extremely high blood-alcohol level – .397, nearly five times the legal limit of .08 – that was considered as the predominant reason why he received a harsher sentence. Dover said this was what “separated this particular case from other particular cases of its kind. That makes it a more serious matter.”

The final call

Ultimately, “one of the objectives of felony sentencing … is that the court is supposed to attempt to seek uniformity in sentencing,” prosecutor Walters said.

To make sure this happens, judges are given universal guidelines for sentences in every crime. Wiversoll’s primary charge was “child endangerment,” and after a plea deal, he did not face a DUI charge despite his high blood-alcohol level. Such an endangerment charge typically carries a heavier sentence than what Buffington was charged with, Walters said. Because of the severity of Billy and Emily Rose’s injuries, the judge also chose to tack on extra years for Wiversoll.

While the judge who determined Buffington’s sentence could have used the Wiversoll sentence as a way to gauge how Buffington should be punished, the concept of using previous cases to determine a ruling is not a method used in sentencing, defense attorney Phillips said.

“Precedent applies to legal concepts, but not in sentencing,” Phillips said. This allows for punishments not only to fit the crime, but also the criminal.

In the end, this leaves the judge with a nebulous set of factors to use in making a decision that will shape the fate of the defendant.

“Every case is a different situation. There is no precise formula,” Judge Tamietti said.

“I lose sleep over sentencings all the time, I question what I am doing.”

Fewer years for death?

While there has been some debate over the different prison sentences received by drunken drivers John Wiversoll and Leland Buffington, another local DUI case could end with the suspect in a double fatality serving only a handful of years behind bars.

Last month, Kelli Townsend pleaded “no contest” to two charges of vehicular manslaughter from her involvement in a June 11 crash that killed two motorists on Highway 49. Per her plea agreement with prosecutors, she would serve no more than five years and four months in prison.

Other charges of driving under the influence, child endangerment and vehicular manslaughter are expected to be dropped at her sentencing, scheduled for March 18.

Like Buffington and Wiversoll, Townsend also had no criminal record prior to the crash. At the time of the crash, her blood-alcohol level was twice the legal limit, close to Buffington’s but far less than Wiversoll’s.

Victims in the crashes involving Buffington and Wiversoll all survived, despite serious injury.

Deputy District Attorney Dave Walters said Townsend’s expected sentence is fair, given her background.

Wiversoll’s wife, Sandra Wiversoll, does not agree.

“It makes me angry that you can kill people and get less time (in prison),” Wiversoll said. “We need uniformity in the justice system.”

– The Union staff


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