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Trials atypical in local DWIs Greg Livadas Post Comment Although thousands of people are charged each year with drunken driving — more than 23,000 last year — some prosecutors routinely offer plea bargains to the lesser offense of driving while ability impaired. Even though Monroe and surrounding counties appear to be among the toughest on DWI, defendants still might get a break from a town judge familiar with the complexities of a DWI trial, in which the judge decides the outcome without a jury. The charge might even be lowered to a lesser offense in rural areas, where DWI trials are rare. In Monroe County, offenders may be eligible for the Pre-trial Felony DWI Diversion program. If alcohol treatment is successfully completed, the felony charge could be reduced to a misdemeanor. The Democrat and Chronicle analyzed area convictions in 2006 for DWI and driving while ability impaired, a lesser charge that carries lighter penalties. The data showed dramatic differences in how alleged drunken drivers fared in court: Only one in seven of Monroe County's 2,320 convictions for DWI and driving while ability impaired came after a trial. The others were the result of a plea, either as charged or to a lesser offense. Irondequoit leads the county in challenged DWIs. Nearly a third of all DWI/DWAI charges in the town resulted in a bench trial, twice the county average. District attorneys often limit when a DWI defendant may be allowed to plea to a lesser offense, depending on circumstances, but that limit varies throughout the state. Most DWI charges in Monroe County are in towns with their own police departments and communities with more residents and expressways. But more of those tickets are challenged in Irondequoit, Henrietta, Greece and Brighton than in Gates, Webster and Chili. Going to court Two variables determine the number of arrests made, said Monroe County District Attorney Mike Green: how many people are driving drunk and the type of enforcement. Every DWI defendant can either plead guilty — to the original charge or a lesser charge if offered — or go to a trial, either with a jury or by a judge. Even if jurors vow to be fair, they are typically not sympathetic toward someone accused of DWI, defense lawyers say. So most DWI trials are bench trials, determined by the judge alone. "The defendant feels they will get a fairer hearing," said Ed Fiandach, a Brighton lawyer who specializes in defending those charged with DWI. "You know where the judge is coming from. Juries are unpredictable. A lot of times jurors get caught up in things that aren't important." Having a trial is ultimately the choice of the defendant. But defense lawyers will guide their clients because they know the judge's rulings on similar cases. "We know what the court is likely to do. We know how the judge has (ruled) in similar facts in other cases," said Todd Wisner, a Rochester defense lawyer specializing in DWI. But lawyers also know how strong the cases are against their clients, said Irondequoit Town Justice Vincent Dinolfo. Defense lawyers say DWI trials involve scientific evidence and can be complicated. Most, but not all, town justices in Monroe County are lawyers and have studied case law for years. But that is unusual. Statewide, of the nearly 2,000 town justices currently sitting, 72 percent are not lawyers. Defense lawyers say town judges who do not have a legal background could be less likely to understand some of the legal challenges made in court. So they may be less likely to be asked to decide a case and ultimately have less experience with DWI trials. "I think if you have a law degree, you're far more competent to understand DWI issues than most lay judges," said Tom Calandra, an Ogden defense lawyer concentrating on DWI. "DWI is an extremely complicated law." Orleans County District Attorney Joseph Cardone said no town justices in Orleans County are lawyers. Sometimes, his office will be called by town judges who, with no legal background, ask for advice, placing the prosecutors in an uncomfortable position. "That's not good," Cardone said. Statewide variables In New York, a driver can be charged with DWI when he or she has a blood-alcohol content of at least 0.08 percent. DWAI may be charged with a reading of 0.05 to 0.079 percent. The concentration of alcohol in the blood is typically measured using a Breathalyzer or blood test. Statistics from the state Department of Motor Vehicles compare county conviction rates for both offenses — nearly 50,000 DWI and DWAI convictions in 2006. Ontario County appears to have a long history of being tough on DWI offenders. For more than 20 years, the county has topped the annual list of the highest percentage of DWI convictions without reductions in charges. This year was an all-time high, with nearly 95 percent of those charges resulting in convictions in 2006. "Truthfully, we know overall this area has an enviable record compared to every other place in the state," said Drusilla Malavase, Ontario County's STOP-DWI coordinator. Of the 62 counties in the state, Yates County was second in 2006 with 87 percent convicted as charged; Wayne County was third (76 percent); Monroe County ranked ninth (68 percent); Livingston County was 10th (68 percent); Genesee County was 11th (66 percent); and Orleans County was 30th (44 percent). Essex County District Attorney Julie Garcia was surprised to learn her county ranked on the bottom, at 21 percent of DWI convictions without reductions. "I wouldn't think that is true," she said. "If it is, it would be that most of the DWIs in the county are low BACs (blood-alcohol content cases). The reason someone gets a reduction is a low BAC." Garcia said her office doesn't have a steadfast rule about DWI pleas, but will allow someone with a BAC of below 0.18 percent, more than twice the legal limit, to make a plea of DWAI. The pleas are just one reason there are very few DWI trials in Essex County, which is in the Adirondacks. "There are 38,000 people here. It's very blue-collar," Garcia said. "You're not going to get people who are going to spend $10,000 to hire a lawyer." Local guidelines Area district attorneys vow to make DWI offenders responsible for their actions. Most won't even consider plea bargains if the defendant's blood-alcohol content is above a certain level. Defendants in Monroe and Wayne counties who are charged with having more than a 0.10 percent BAC or who refuse to take a breath test probably won't be given an option to plea bargain, district attorneys said. Sticking to that guideline is important if the policy is going to work, they said. "We have 20 to 30 people killed every year on the streets of Monroe County by drunk drivers and another 300 to 400 individuals who are injured by drunk drivers," said Green. "You look around and see the potential harm people cause. The only other criminal activity that results in this many deaths is gunfire. It makes sense to make it a priority." Ontario County District Attorney Michael Tantillo may allow a plea to a lower offense for those with a BAC of less than 0.10 percent if they have had no prior DWI convictions and did not get into an accident. In Livingston County, prosecutions are high and DWI trials are rare, leading to more guilty pleas, said District Attorney Thomas Moran. District Attorney Cardone said misdemeanor DWIs rarely go to trial in Orleans County partly because of informal guidelines on whether a plea bargain will be offered. "If you're 0.12 (BAC) or above, we aren't likely to offer a plea on a first offense," Cardone said. "What we also look at are aggravating circumstances. If you have 0.09 and a death is involved, we won't (offer a plea). If you are 0.14 and a conviction would have an impact on their job and they have been responsible all their life, we would probably give them a reduction." Cardone and other prosecutors say plea offers are needed in some cases. "If you didn't have plea bargaining, every case would go to trial, and our legal system couldn't handle that," he said. Defense attorney Calandra said he thinks more leniency could be shown in Monroe and Ontario counties. "Some people think at times those counties are a little too strict," he said. "If someone has an impeccable driving record for 25 or 30 years, probably some consideration could be made." He said commercial drivers who even get convicted of DWAI will lose their commercial driving privileges. "There's a lot of everyday, hardworking people that make a mistake," Calandra said. "Sometimes they find they can't support their families any longer, can't make their mortgage payments." Enforcement Figures from the state Department of Motor Vehicles showed a 15 percent decrease in DWI/DWAI tickets issued in Monroe County in 2006 from 2005. Gates was the suburb with the most DWI/DWAI convictions in the county in 2006, with 255. The arrests were from Gates police, sheriff's deputies and state troopers. "We do spend a lot of time with DWI enforcement," said Gates Police Chief David DiCaro. "We do make it a priority and have, unfortunately, been very successful. It's an important issue. When you consider the property damage and personal injury that occurs from DWI, it's an issue we take very seriously." Only 11 percent of those DWI/DWAI arrests in Gates went to trial. Greece had 216 such convictions in 2006, but 22 percent of the cases went to trial there. Many of the DWIs get reduced to DWAIs. "Our conviction rate as charged is not very high," said Greece Police Chief Merritt Rahn. "A lot of them go to trial and the judge will err on the side of the defendant." There's little a police officer can do about a ticket once it has been written. "What happens next is out of our control," Rahn said. "What happens after we make the arrest, I'm not going to worry about what happens." Dinolfo said Irondequoit has more DWI trials than other communities because of the sheer number of cases that come before the three town judges. "The Irondequoit Police Department makes a lot of DWI arrests," Dinolfo said. "They're diligent in enforcement. When you couple that with the DA's no-reduction policy, that results in more trials." He said he determines the outcome by the facts of each case. "If the proof is there, the conviction is there," Dinolfo said. "What the variable is, is the individual scenario that affects each arrest." John DeMarco, another Irondequoit justice, contended in 2005 that prosecutors' DWI documentation would not be accepted unless accompanied by someone who calibrated each Breathalyzer used. He reduced several DWI charges to DWAIs. His ruling was later overruled by a higher court. The human toll Alcohol-related crashes killed 23 people (15 drivers, six passengers and two pedestrians) in Monroe County in 2005, the most recent year that safety figures were available from the state DMV. In addition, 364 people were injured. Statewide, 382 people were killed in alcohol-related crashes in 2005, the same number killed in 2004. In 2004, 27 people were killed in Monroe County crashes where alcohol was a factor. One of the 2004 victims was Matthew Kato, 17, who died when a drunken driver slammed into his car on Lehigh Station Road in Henrietta. The driver of the other car, Kristian Kemp, had a blood-alcohol content of 0.16 percent. Kemp, who had two previous drinking-related traffic offenses, was originally charged with depraved indifference murder, but accepted a plea bargain of 5 to 15 years in prison to second-degree manslaughter. Matthew's father, Paul Kato, said the decline in DWI arrests isn't because fewer people are drinking and driving. "Some will say people are driving drunk less frequently. Others say the decline is based on budget cuts — police are unable to catch the people because they're unable to set up checkpoints," he said. "If you can't come up with a definitive reason, there's some factor that's masking what's happening. They still are offering two-for-one specials where the bar owners encourage you to drink twice as much for the same price." Peter Navratil of Webster lost his mother, Geri, 69, and her friend, Jim Finegan, 79, in 2002 when a drunken driver slammed into the back of the couple's car in Brighton, setting it on fire. The driver, James Risch of Pittsford, had multiple DWI charges in the past, including one just three days before the Brighton crash. Risch was sentenced to 7½ to 15 years in prison for second-degree manslaughter. "It's a lifelong trauma that we all endure," said Navratil, chairman of Rochester Against Intoxicated Driving. "That will never go away." |