Al Hartmann, Pool
David Gardner leaves Judge John Backlund's court in Orem on Friday morning. Gardner was charged in May 2007 with sexual battery. His charge was reduced to a class B misdemeanor of assault.

OREM — In 1999, he was arrested for running his car off the road and blaming his inability to drive on a sip of vodka a hitchhiker offered him.

In May 2007, he was charged with sexual battery for grabbing and fondling the inner thigh of a 26-year-old woman he just met.

And less than three months ago — a day before he was to enter a plea in the fondling case — police found him stumbling out of a Springville 7-Eleven with a blood alcohol level above the legal limit.

"The court is impressed that Mr. Gardner is a very complex and disturbed individual," 4th District Judge John Backlund said Friday morning at the sentencing of former Utah County Commissioner David James Gardner. "Given some of his erratic behavior in the past in other cases, I just am very concerned about this issue."

The issue was sentencing for the fondling case, reduced to a class B misdemeanor of assault.

The victim said she and a friend were talking at his Springville auto shop when Gardner showed up and offered to give her a ride to a doctor's appointment. He took her to his house first, began kissing his fingers and putting them on her face. On the drive back, Gardner allowed her to drive the expensive car, but said she was driving too fast.

"That's when I reached over, grabbed her leg and said slow down," Gardner told the judge.

"You grabbed her leg? This is a woman you had just met that very day and you're coming on to her?" Backlund said.

"No, sir, I was not coming on to her," Gardner replied.

"You touched her in a very private area and you say you

did that to get her to slow down?" Backlund asked. "That seems like an odd thing to do."

The emotional victim called Gardner's behavior traumatizing, especially considering that she had been abused as a child, and said she never learned how to say no.

"How do you think it feels not being able to stand up for yourself as an adult? And be afraid?" she read. "For so long I thought it was my fault, something I did, something I said. Today I will not say it's my fault any longer. I will not let you decide my fate and how my life will end."

Gardner was a licensed marriage and family therapist through the Utah Division of Occupational and Professional Licensing. However, he was placed on probation in December 2002 for unprofessional conduct, and on May 15, he voluntarily surrendered his license, according to the Department of Commerce.

"My feeling was he was very in-tune with her feelings," Backlund said. "He had been a counselor for people, he picked up on those very subtle feelings, thought he could exploit her as a victim. He should know, more than other people ... what constitutes appropriate touching, conversation."

Although Backlund said he thought jail time was necessary, he also said he felt bound by the agreement.

So he imposed a year of probation and ordered that Gardner not consume any alcohol, nor violate any law, including traffic laws. He must also complete mental health treatment, pay restitution for the victim's counseling and have no contact with females under the age of 18.

"If you didn't have the agreement, you would be going to jail now for six months," Backlund told Gardner.

The victim asked for the maximum jail time and fines, although she knew prosecutor Paul DeWitt had already agreed with defense attorney Mike Esplin to not ask for jail time, in order to get the case resolved.

The resolution meant that Gardner entered a no-contest plea to a class B misdemeanor of assault —nothing sexually related, specified his attorney Mike Esplin.

Had the deal not been reached, they were prepared to take the case to trial, Esplin said.

"Some of the things the court is talking about here are not based on the evidence of the case. There was no evidence taken in the case," Esplin said. "We entered a plea arrangement because we wanted to get it resolved."

Prosecutor Paul DeWitt said the case was resolved to prevent the victim from having to testify at trial, but said he disputes the insinuation that the incident was just a brush on the leg.

"This is not an innocent touching," he said. "She has suffered enough ... so we made a decision to settle it for less. But for the record, we do dispute the facts as they are alleged by the defendant."