Why D.A. Decided on Gibson DUI

Prosecutors on Wednesday charged Mel Gibson with two misdemeanor counts of drunk driving but decided there was not enough evidence to pursue more serious charges against the actor-director for belligerent behavior directed at a Los Angeles County sheriff’s deputy.

Because he is charged only with misdemeanors, legal experts said, the actor could plead no contest without going to court or receiving any jail time. The arrest was Gibson’s first in California for driving under the influence of alcohol.

Typically, first-time offenders have their licenses suspended, are ordered to pay fines, attend DUI offender programs and serve three years’ informal probation. They may also be required to perform community service.

Officials at the Los Angeles County district attorney’s office filed the charges after several days of discussion about whether the conduct detailed in Gibson’s arrest report rose to the level of prosecution. In his report, Deputy James Mee said Gibson “attempted to escape custody” and repeatedly threatened him.

The star was clocked going more than 85 mph -- nearly twice the posted speed limit -- on Pacific Coast Highway about 2:30 a.m. last Friday. A breathalyzer test showed his blood-alcohol level to be 0.12% (the legal limit is 0.08%). In addition to drunk driving, prosecutors charged Gibson with an infraction of having an open bottle of tequila in his car.

Some veteran DUI attorneys said they were surprised that an “excessive speed enhancement” was not filed against Gibson -- a charge that would mandate jail time.

“If you’re going 25 mph over the speed limit, that would greatly increase your chances of jail time,” said attorney Jonathan I. Kelman. “The fact that they didn’t file the speed enhancement -- that makes me wonder,” Kelman said. “Ninety percent of my clients out of Malibu would face that enhancement if [law enforcement officials] thought they could prove the speeding.”

Under state law, a driver under the influence whose speed exceeds the posted limit by 20 mph or more on streets or 30 mph on highways faces a minimum of 60 days in jail.

Paul S. Geller, another defense attorney who specializes in drunk driving cases, said the speed enhancement is a common but not automatic charge. Sometimes, he said, prosecutors use the threat of the charge as a negotiating tool.

Laurie Levenson, a law professor at Loyola Law School, said Gibson’s bellicose behavior toward the deputy made it a borderline case for resisting arrest and making criminal threats, both felonies.

“Prosecutors had to use their discretion. A different defendant, a different situation, you might have seen those charges added,” Levenson said, adding that the charges filed appeared to be appropriate. “But I think people will be suspicious as to whether he has received celebrity treatment because of the way this case has been handled from the beginning.”

The sheriff’s Office of Independent Review is looking into whether details of Gibson’s behavior were deliberately kept from the media as a favor to the actor.

In announcing the arrest, a sheriff’s spokesman said Gibson was taken into custody without incident. Sources have told The Times that department officials debated for hours what to do with Mee’s detailed narrative of the actor’s behavior, eventually deciding to place it in a locked area in hopes that the public would not get hold of it.

Mee’s report described the Oscar-winning actor-director’s behavior, including allegations that he made anti-Jewish slurs, blaming Jews for “all the wars in the world” and then asked the deputy, “Are you a Jew?”

The details became public when someone leaked the file to the celebrity website TMZ.com.

The disclosure was followed by other revelations about how sheriff’s officials handled the case.

On Tuesday, sheriff’s officials acknowledged that a sergeant drove Gibson 10 miles from the Malibu-Lost Hills station in Agoura to a Malibu towing yard to retrieve his sedan.

“It would be quite unusual to drive a defendant to a tow yard to pick up their vehicle after being arrested,” said attorney Kelman, who has defended DUI clients for nine years. “I’ve had it happen once before, when a very beautiful client was taken to the tow yard three miles away,” Kelman said. “Otherwise, all my other clients have been told to walk or get a ride.”

Then on Wednesday, the district attorney’s office acknowledged that Gibson had been released Friday on his own recognizance. On Friday, sheriff’s officials said Gibson was released on $5,000 bail.

Several sources said that recent statements by Mee, the arresting deputy, and other sheriff’s officials were considered when deciding whether to pursue more serious charges against Gibson.

In an interview with The Times on Monday, Mee called the incident “just another routine stop that just got a little escalated.... This is just another drunk driving incident. It just happened to be a celebrity versus Joe Blow public.”

Additionally, Sheriff Lee Baca, whose department has been criticized for giving the actor special treatment, has insisted that Gibson should only face charges related to the DUI and that his behavior after the arrest should not be an issue in his prosecution.

“Our job is not to [focus] on what he said. It’s to establish his blood-alcohol level when he was driving,” Baca told The Times on Saturday.

Jane Robison, a spokeswoman for the Los Angeles County district attorney’s office, declined to elaborate on the specific reasons prosecutors did not seek charges beyond those directly related to drunk driving.

“Prosecutors reviewed all of the reports, all the audiotape from the scene, all the videotape taken at the station, all the evidence,” she said. “And we filed the charges we believe we can prove beyond a reasonable doubt.”

Attorney Lawrence Taylor, who has defended DUI clients for 35 years, said he has seen similar cases thousands of times.

“Except for the comments he made and who he is, this is a very common, run-of-the-mill businessman case,” Taylor said.

Gibson’s attorney, Blair Berk, declined to comment on the charges being filed.

“I will be the one lawyer not discussing the ongoing case,” she said.

Gibson has issued two public apologies since his arrest and said he suffered a relapse in his longtime battle with alcoholism.

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Times staff writers Richard Winton and Stuart Pfeifer contributed to this report.

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(BEGIN TEXT OF INFOBOX)

Jail Is Unlikely for a First-Time DUI Offender

Q&A;

Q: What charges does Mel Gibson face?

A: He faces misdemeanor counts of driving under the influence and driving with a blood-alcohol level of 0.08 or higher. L.A. County prosecutors also charged the actor with a vehicle code infraction for allegedly having an open alcohol container in his car.

Q: What is the possible punishment?

A: If convicted, he could face up to six months in county jail. But experts say first-time offenders usually have their licenses suspended, are ordered to pay fines, attend DUI offender programs and serve three years’ informal probation. They may also be required to perform community service.

Q: What about his behavior after being arrested?

A: The deputy who arrested him said Gibson tried to escape and verbally threatened him. Prosecutors did not charge Gibson with either resisting arrest or making a threat. Legal experts said it might have been hard to make a case for those charges.

Q: Will Gibson have to appear in court?

A: He could plead no contest without going to court, which is routine in such matters, experts said. He could also fight the charges and go to trial.

Q: What’s the next step?

A: Arraignment is scheduled for Sept. 28 at the Malibu Courthouse.