Pictures posted on MySpace were a deciding factor in the sentencing of 22-year-old Jessica Binkerd, who could serve more than five years in state prison for killing a UCSB student while driving drunk last August.

Despite a recommendation from the Santa Barbara County Probation Dept. to sentence Binkerd to 270 days in jail and 5 years probation, Superior Court Judge Joseph Lodge announced last Friday that Binkerd will serve up to five years and four months

Binkerd plead guilty to charges of drunken driving and vehicular manslaughter. Her passenger and coworker was Alex Baer, a 25-year-old psychology major at UCSB.

When deciding on the severity of the defendant’s sentence, Deputy District Attorney Kimberly Smith said Judge Lodge took into consideration Binkerd’s actions and conduct surrounding the time period of the accident. To show such behavior, Smith presented pictures of Binkerd, posted on MySpace, of her drinking with friends in the months following the car crash.

Defense Attorney Steve Balash said the pictures included one of her at a Halloween party wearing an “I heart Patr–n” costume and another of her drinking downtown at the Wildcat Lounge with friends.

“That set him off like no tomorrow,” Balash said. “The judge thought it was inappropriate and he didn’t really focus on anything else.”

Balash said he was surprised at the severity of the sentence since the probation department recommended that Binkerd serve less than a year in prison, and because Baer’s parents expressed forgiveness during the court proceedings.

“I think Judge Lodge wanted to make an example and send a message to the community,” Balash said. “Other cases similar to this have received probation. But Jessica is going to state prison even though the parents of Alex asked for leniency.”

While Baer’s parents testified in the trial and expressed an “impressive” amount of forgiveness, Smith said such actions do not erase the consequences of Binkerd’s offense.

“Clearly forgiveness is part of healing,” Smith said. “But that does not minimize, justify or relinquish Jessica Binkerd’s responsibility of what happened in this case.”

Judge Lodge was concerned about the magnitude and gravity of the crime, Smith said, and he wanted it noted that such actions would not be tolerated.

“The defendant is taken off the street and incarcerated, which will protect society because she will not be able to participate in that type of behavior again,” Smith said. “I think the message is clear: If you drink and you drive, the punishment is severe and there will be consequences.”

In regards to using online profiles as evidence, Balash said people should be careful about the information they post, because it could potentially be legally damaging.

“Kids ought to think about privacy on the MySpace and things like that,” Balash said. “It looks great and funny until you get charged with something.”

Balash said he thinks there are legal issues with the outcome of the hearing and plans to file a motion to have the sentence recalled as soon as he has the time.

“I represent a lot of bad people and Jessica is a good kid,” he said. “We will be back in court.”