Judges, district attorney clash over DWI cases Written by Michael Zeigler Staff writer May. 27

Transcription

1 Judges, district attorney clash over DWI cases Written by Michael Zeigler Staff writer May. 27 democratandchronicle.com Misdemeanor DWI trials in Monroe County that are decided by a judge rather than a jury result in a conviction for the most serious charge in less than 15 percent of cases. Those convicted of lesser charges will not be subject to new penalties. Because most people charged with DWI in Monroe County plead guilty, the county conviction rate is 73 percent fifth best in New York. But the DA says judges should find more defendants guilty of DWI. DWI vs. DWAI: Key differences The difference between a conviction for driving while intoxicated and driving while ability impaired can be significant. DWI, which alleges a blood-alcohol content of 0.08 percent or above, is a misdemeanor criminal charge, punishable by up to one year in jail, a fine of up to $1,000 and a license revocation of at least six months. A conviction has to be reported on employment applications and can affect the holding of professional licenses. If a driver is charged with DWI after a conviction within the past 10 years, the charge becomes a felony. DWAI is a non-criminal traffic violation that doesn't have to be reported on employment applications and doesn't affect the holding of professional licenses. Those convicted can be fined up to $500 and have their licenses suspended for 90 days. New York lowered the legal limit of DWI from 0.10 percent to 0.08 percent of alcohol in the blood in 2002 after the federal government withheld highway funds from states that failed to adopt the standard of 0.08 percent. Conviction rates Monroe County has the highest DWI conviction percentage* of New York's most populous counties. The ranking for the largest upstate counties by county, conviction percentage and rank: Monroe: 73%, No. 5 Albany: 55%, 24 Orange: 50%, 27 Erie: 43%, 41 Onondaga: 36%, 55 *Unlike many counties, Monroe County rarely allows those charged with DWI to plead guilty to lesser offenses. The conviction rate counts only those found guilty of the original charge. Source: Department of Motor Vehicles After he was charged with driving while intoxicated in 2009, Eric J. Beach admitted that 1 of 6

2 he was behind the wheel when his red GMC pickup wound up in a ditch in Clarkson. Last month, prosecutors presented evidence that Beach's blood-alcohol content was 0.27 percent more than three times the legal limit. But at the end of the non-jury trial, Town Justice Christopher T. Wilcox found Beach not guilty of two misdemeanors and a traffic violation. The outcome of Beach's case wasn't unusual, according to a Democrat and Chronicle analysis of data provided by the Monroe County District Attorney's Office through Freedom of Information Law requests. Most people charged with DWI in Monroe County plead guilty, which has made the county's overall conviction rate 73 percent one of the highest in New York. But of 1,595 non-jury trials for misdemeanor DWI held in the past four years in town and village courts and Rochester City Court, defendants were found guilty of that charge 14.8 percent of the time. The rest were convicted of a non-criminal traffic violation of driving while ability impaired, convicted of a lesser traffic offense, acquitted outright, or had the charge dismissed for lack of evidence. By comparison, in 104 jury trials conducted in the same courts over the same period, the conviction rate for misdemeanor DWI was 24 percent. District Attorney Michael C. Green said the statistics suggest a disturbing trend that could affect safety on the roads by failing to hold drunken drivers accountable. And judges' unwillingness to convict people of misdemeanor DWI could thwart the intent of a new penalty for DWI, in effect today, that requires convicted drunken drivers to install devices on their cars that measure alcohol on their breath. "If you consider those figures, you see some real clear patterns developing," Green said. "You've got to ask yourself if the outcome of every single case was decided before the trial was even held." Green said the numbers show that some judges rarely convict anyone of DWI despite what the prosecution contends is strong evidence of drunken driving. DWI defense lawyers and a former judge disputed that idea. They said cases that go to trial only about one-seventh of those resolved by guilty pleas are those where weak evidence creates reasonable doubt of guilt, where a strict plea-bargaining policy set by Green pushes marginal cases to trial by preventing plea deals to a lesser charge, and where trials often pit young prosecutors learning the ropes against defense lawyers who have practiced DWI law for years. "I think very highly of Mike (Green), but I disagree with his statement that judges make up their minds ahead of time," said James E. Morris, who was a Brighton Town Court justice from 1972 through 2005 and is former president of county and state associations 2 of 6

3 representing lower-court magistrates. "Judges are really trying to do what is legally correct," he said. "To say that there's a predetermination is probably unfair." Green, who last month was nominated to be a judge of U.S. District Court in Rochester, said he isn't accusing judges of impropriety. "I'm not charged with deciding these cases," he said. "That's the judges' role. My job is to protect the public and enforce the laws." Judges said their job is to follow the law. The statistics, meanwhile, show that someone charged with misdemeanor DWI is 40 percent more likely to be convicted of that charge if the case is decided by a jury rather than a judge. In Beach's case, Wilcox said he conscientiously examined the law and the evidence before finding reasonable doubt that Beach was operating the truck a legal element the prosecution had to prove. Beach, 34, of Hilton, was returning home after drinking beer at a friend's house on Nov. 1, 2009, when he wandered onto unfamiliar East Avenue in the dark. When he tried to reverse course with a three-point turn, he backed into a ditch and couldn't get out. A neighbor called 911. After hearing testimony that a sheriff's deputy saw another man at the scene but didn't get his name or investigate if he could have been driving, Wilcox had doubt of Beach's guilt and eventually found him not guilty. "To be honest... probably half of the judges would have said the prosecution proved operation, and the other half would have said they didn't," said Wilcox, who is also a lawyer in private practice. Beach, who concedes he was driving after drinking beer but insists he wasn't drunk and thinks the results of his breath test were skewed by chewing tobacco in his mouth, said he was surprised by his acquittal but believes the verdict was fair. "The judge heard the whole story," Beach said in an interview outside his apartment. Peter K. Navratil, chairman of Rochester Against Intoxicated Driving, said he believes some judges may decide cases not on the evidence they hear, but on the impact a DWI conviction would have on defendants, such as revocation of driving privileges and the effect on employment or holding professional licenses. "I think judges sometimes project themselves on the people they encounter," he said. "They feel sorry for the defendants." Most judges contacted for this story declined to comment, citing rules of judicial conduct that 3 of 6

4 prohibit them from discussing cases in front of them. "I feel like I'm in somewhat of a boxing match here, without having the ability to spar," said Irondequoit Town Justice Vincent M. Dinolfo, who has convicted one of 46 defendants of misdemeanor DWI in non-jury trials. Rochester City Court Judge Jack Elliott, who has conducted more non-jury DWI trials than any judge in the county 149 and handed down 11 convictions for DWI, declined to comment. Greece Town Justice Charles A. Schiano Jr., second with 118 trials and nine convictions, spoke sparingly. "They (the statistics) are what they are," Schiano said. "You take it case by case and follow the law. That's what I try to do in every case." Greece Town Justice Gino M. Nitti, who was an assistant DA for 13 years before he took the bench in 2005, said he isn't surprised by the overall conviction rate. But he said his decisions depend strictly on evidence presented in court. "I call it as I see it," said Nitti, who has convicted two of 70 defendants of misdemeanor DWI. "When a case comes before me, I do not, nor have I ever, nor do I ever anticipate I will, prejudge a case," Nitti said. Monroe County is ranked fifth in the state and first among the largest counties with an overall conviction rate of 73 percent for DWI, whether by guilty plea or conviction after trial. Though Green is satisfied with the state ranking, he said he believes there should be more convictions to the top charge of DWI when cases are decided by judges. Green, who has served as elected district attorney since 2004, ordered his office to begin compiling statistics on the outcome of DWI trials in 2006 when assistant district attorneys complained that verdicts sometimes seemed predetermined. The cases involved went to trial between Jan. 1, 2006, and Dec. 31, In some DWI cases, Green said, judges urged defense lawyers to encourage their clients to have a non-jury trial, which ultimately resulted in an acquittal for misdemeanor DWI but a conviction for driving while ability impaired. As in any criminal proceeding, DWI cases come down to a matter of what can be proved in court beyond a reasonable doubt. Even if defendants refuse to submit to a breath test, they can be charged with DWI based on the observations of an arresting officer that they smelled of alcohol, slurred their speech or failed field-sobriety tests, which measure agility and response. The defense usually challenges those observations as being subjective and not proving intoxication. "The fact of the matter is that most of the time in refusals, you have a better set of circumstances that benefit the driver," said Edward L. Fiandach, who is considered a 4 of 6

5 national expert on DWI law. "People who refuse (the breath test) tend to be more experienced drinkers and they tend to do well on the field-sobriety test." Defense lawyers often challenge the results of breath tests. "We have breath test operators who are very good in Monroe County, but I think most of them would agree that the machine itself is still a little fallible," said defense lawyer Joseph S. Damelio. "They usually run at a plus or minus ratio of two one-hundredths of a percent." Judges often accept the possibility of a margin of error in the tests when reaching their decisions, Damelio said. The Democrat and Chronicle analysis of statistics from the DA's Office seems to bear that out. Of 29 judges who have conducted 10 or more non-jury trials for DWI since 2006, two have convicted defendants whose blood-alcohol content was 0.08 percent. The standard seemingly adopted by the most judges was 0.12 percent. A person's blood-alcohol content depends on several variables, including weight, gender, how quickly alcohol was consumed and whether food was in the stomach. Generally speaking, however, a 170-pound man who drinks three 12-ounce beers in an hour can be legally intoxicated. Frustrated over the results of DWI trials, Green in 2008 ordered his staff to compose a written stipulation form, in which defendants voluntarily admit that their blood-alcohol level was above the legal limit, that the test was properly administered, and that the testing machine was correctly calibrated. Many DWI lawyers balk at having their clients sign stipulations. "I think that's borderline malpractice," said lawyer Todd J.W. Wisner. The results of the stipulations have been disappointing, Green said, and offered samples of nine cases from courts across the county where defendants signed stipulations admitting their intoxication but were found guilty of a lesser charge. "The judges are finding that the defendants were driving, and the defendants are admitting in the stipulations that their blood-alcohol content was over the limit, but they're still getting acquitted of misdemeanor DWI and convicted of DWAI," Green said. "I can't help but think that in some courts, the verdict is a foregone conclusion." Some defense lawyers said Green should consider whether his office's policy on plea bargains is more of a factor than judges' decisions. The DA's Office will consider allowing defendants charged with misdemeanor DWI to plead guilty to the lesser charge of DWAI if their blood-alcohol content is between 0.08 percent 5 of 6

6 and 0.10 percent and there's no aggravating factor, such as an injury. To get a deal with a level above 0.10 percent, defendants have to make the case that a misdemeanor conviction would cause extraordinary hardship, such as affecting their professional license or education. Wisner said he believes some judges find defendants guilty of DWAI because they believe the case should never have gone to trial. "I think the judges are, in some respects, doing the plea bargaining for the DA's Office," he said. "In other words, they're getting the same result with a bench trial that they would have gotten from a plea." First Assistant District Attorney Sandra Doorley, however, defended the plea-bargain policy. "If you compare us to counties of like population, we're No. 1," she said, referring to the county's overall 73 percent conviction rate. "How could our plea policy be bad?" But because judges have the final word, some defense lawyers concede that a new law taking effect today, which requires the installation of ignition-interlock devices on the cars of anyone convicted of DWI, might cause even fewer DWI convictions and more for DWAI by judges who are reluctant to order the interlock system's use. "I was talking off-the-record with a judge about the ignition-interlock system, and I said, 'I wish the Legislature had given the judges more discretion over this,'" Wisner said. "The judge said, 'They did. It's called DWAI.'" MZEIGLER@DemocratandChronicle.com 6 of 6