Published: November 23, 2015 At a time of year, just before the holidays, when there is increased attention on drunk driving, one family is begging for answers. They say they didn’t receive justice after their son was killed by a drunk driver.
A judge sentenced a Waupaca County woman to one year in jail for hitting and killing their recent high school graduate.
That sentence outraged the family and many of you, asking how it could happen.
So Target 2 started investigating.
The family of 18-year old Dylan Thorne calls their son’s death a murder, and they believe the woman who hit and killed him is getting away with it, because she was driving drunk in the only state in the country where first offense drunk driving is not a crime.
“I just couldn’t believe it. I couldn’t believe it,” says Liz Thorne, Dylan’s mother.
She can barely find words to explain her shock at the way she sees Wisconsin’s justice system handling drunk driving cases.
Her nightmare began July 19, 2012.
“He had said it was Dylan. And he said he didn’t make it,” says Liz, remembering the phone call she received from the sheriff while on a family camping trip.
At about the same time her youngest son, Dylan left for work, Heather Schmidt left a Waupaca bar, where authorities say she’d been drinking most of the morning.
Around 1:30 p.m., from opposite directions, their two vehicles drove along County Highway E in the Town of St. Lawrence.
Schmidt crossed the centerline and hit Dylan head-on.
Dylan died. Schmidt sustained some injuries.
Court records show she was drunk, with a blood alcohol content of .174, more than twice the legal driving limit.
“I was just furious,” says Liz. “Whether I’m bad for thinking of it, I could just think, I prayed no, stay alive, because I wanted the courts to give her, to get justice. I didn’t want her to get off easy.”
But now Liz feels that’s exactly what happened.
“I feel like Dylan’s life meant nothing.”
At the September sentencing, Judge Ray Huber ordered Schmidt spend 10 years on probation and one year in jail, with the last five weeks spent behind bars on holidays, Dylan’s birthday and the anniversary of the crash, for each of the next nine years.
He imposed, but stayed five years in prison , meaning she won’t go to prison as long as she remains sober and follows the rules of probation.
“I’m like, are you kidding me? I couldn’t… I was in shock. I was in total shock,” says Liz.
Target 2 asked Judge Huber about his decision, but he told us judges are bound by a judicial code of ethics and he would not talk about the sentence, adding that judges are not required to defend their decisions and never discuss sentences.
Schmidt’s attorney declined our request for comment, too.
So Target 2 reviewed the entire transcript of the hearing.
Judge Huber referred to a pre-sentence investigation, noting “… Schmidt’s a very low risk to cause any trouble ever again…” and “… it is difficult to recommend a hard working single parent be sentenced to prison.”
Schmidt also apologized during the hearing.
“I just want to tell the family how sorry I am for everything you’ve had to go through,” Schmidt told the court that day.
That did little for Liz and her family.
“Her kids can go see her. We can’t. Well, we can go to the cemetery to see Dylan,” says Liz.
The Thornes and many of you questioned the law and sentencing of drunk drivers.
So Target 2 dug into the law itself.
Homicide by intoxicated use of a motor vehicle is a felony. It carries a maximum 25 years in prison if there are no prior convictions.
Schmidt had none.
This was her first offense drunk driving. On its own, that would mean no jail time because it’s only considered a traffic violation.
Target 2 found there are strict sentencing guidelines for all drunk driving offenses, but for homicide by intoxicated use of a motor vehicle, there is no minimum penalty written into the law.
A judge can sentence someone to as little time as he or she sees fit.
Judge Huber referred to Schmidt’s first offense drunk driving at sentencing, saying “…but for Ms. Schmidt’s striking Dylan’s vehicle on this occasion, had the police stopped her… she would have faced a forfeiture… and revocation of license…”
“But that’s not this case. When you kill somebody, the first offense should be thrown out the window. It shouldn’t matter,” says Liz.
We discovered Dylan’s death is pushing lawmakers into action, proposing a new law regarding sentencing drunk drivers.
But some already don’t think it’s a good idea, including Judge Huber himself.
While he couldn’t talk to us about Schmidt’s case, he did agree to talk to us about the proposed law change.