Emily Levens, the Missoula woman who fatally struck Benno Big Back Jr. with her SUV more than a year ago, was sentenced Monday to 10 years with the Department of Corrections, with half of that time suspended.
A Department of Corrections sentence is different than a prison sentence, and includes screening for a variety of programs. It could mean anything from Levens’ immediate release on community supervision, to being sent to the Montana State Women’s Prison.
Levens’ sentence was not for actually hitting Big Back with her vehicle while driving drunk, but only for fleeing after she stopped and was seen by a neighbor who called 911. At the end of January, prosecutors dropped a felony count of vehicular homicide while under the influence from the set of charges facing Levens from the February 2017 crash.
That January decision drew the ire of Big Back's friends and family, leading some of them to allege that racism played a role in dropping the more serious felony count.
Levens later pleaded guilty to her remaining charges including a felony for failing to stop at a scene where a person was killed, as well as misdemeanors for driving under the influence, driving with a suspended license and failure to carry proof of insurance.
She entered her pleas without reaching a plea agreement with prosecutors, meaning Missoula County District Court Judge Leslie Halligan had full discretion at Monday’s hearing in how to sentence Levens.
According to court records, a woman called 911 in February 2017 after hearing a crash outside her home near the intersection of Mount Avenue and Hollis Street. She told dispatchers she saw a man’s body in the street, and a woman standing over it. When she told the woman, Levens, that she was calling for help, Levens got back in her SUV and drove away.
Officers followed a trail of vehicle fluid from the scene to Levens’ house. When she came outside, officers reported that she smelled of alcoholic beverage and scored poorly on field sobriety tests. A court affidavit stated that she later told a detective she had been drinking at a casino that night before driving home, but didn’t see Big Back until she hit him.
Chief Deputy County Attorney Jason Marks chose to drop the vehicular homicide charge after reviewing a crash reconstruction report that Levens’ defense team commissioned, as well as getting a second opinion from a Montana Highway Patrol crash investigator.
That crash reconstruction report concluded that Levens had been driving the speed limit, and was unable to avoid hitting Big Back when he jogged into the street in front of her vehicle. The crash happened at night, and Big Back was wearing dark clothing and shoes with no reflective material, the report said.
The decision to drop the vehicular homicide charge angered Big Back’s friends and family, many of whom spoke at Monday’s hearing. Several blamed Marks, and said Big Back — a Native American — and Levens’ race played a role in the decision.
“I don’t know, maybe you have to be white and rich for you to do your job,” Big Back’s aunt Rose Villa said, adding that she thinks the justice system looked at her nephew as “just another Indian.”
Villa addressed Levens directly in demanding a tough sentence.
“You will pay. Believe me you will pay for taking our child’s life,” she said. “If this court does not give you justice, believe me, it will be served.”
Aaron Armintrout, who along with his wife Amber were close friends and neighbors of Big Back’s, said he sought a message that drunk driving wasn’t going to be tolerated.
“How many times does this have to happen in Missoula for the law to get tough with criminals like Ms. Levens?” he said.
One of Big Back’s sisters, Jolene Miller, said the past year has been “the worst year of my life." His other sister Destiny McMahon said, “There is just a massive hole in my heart.”
The last speaker, Big Back’s mother Patricia Spotted Wolf, said she wouldn’t go over yet again all the terrible decisions Levens made, but just wanted to talk about the person her son was.
“He was my firstborn and I’ll never get to see him again and I’ll never hold him,” she said. “I want to beg Your Honor if you would please give us some justice.”
In recommending a deferred sentence, Levens' public defender Joan Burbridge called Big Back’s death an “unfortunate and tragic accident,” but said Levens was not responsible and that Levens didn’t see him until she hit him.
Burbridge also brought up the fact that Big Back was highly intoxicated when he died and it's possible he did not look both ways and carefully cross the street that night.
“Ms. Levens is not responsible for this death. She just isn’t,” she said.
Levens apologized to the family when she gave a statement before being led away by a bailiff.
“This terrible accident has really affected me and changed who I am. … I’m so sorry for the pain that I’ve caused everyone.”
The judge’s sentence was the same one that Marks requested. The prosecutor said the sentence was in line with a similar case from 2010, and that some level of incarceration was needed because Levens made three wrong choices the night of Big Back’s death: She drank and drove, she didn’t have a license and she didn’t have insurance.
“The message I need to send to the community is that when this happens, people need to stay and be accountable,” Halligan said.
As part of the sentence, Levens must also pay more than $2,700 in pretrial supervision fees racked up since her release weeks after being arrested. Halligan also ordered her to pay more than $6,300 in restitution to Big Back’s family, and complete 100 hours of community service.
Burbridge told Halligan her client was willing to pay restitution if she received a deferred sentence but added that in her reading of case law, restitution is actually not required. Because Levens wasn’t convicted of killing him, and because Big Back was already dead when she fled the scene, she is not liable for his death.
When Hallgian issued the sentence that includes time in custody, Burbridge objected to the restitution, but the judge imposed it anyway. Burbridge also interrupted the judge to try to delay Halligan from finishing her reading of the sentence, saying budget cuts to the Office of the State Public Defender prevented her from being able to call an expert witness at sentencing.
Halligan told her she could take up the matter on appeal if she wanted to.