County prosecutor says plea bargains are out for chemical breath test refusals

Section: Capital Region,  Page: D1

Date: Thursday, May 26, 2011

ALBANY -- In an effort to close a loophole he said is being increasingly exploited in DWI cases, District Attorney David Soares said Wednesday his office will no longer plea bargain cases in which drunken-driving suspects refuse to take a chemical breath test.

"If you refuse to blow, you will no longer receive the benefit of a plea bargain," Soares said.

The policy change -- effective June 1 -- comes on the heels of several high profile cases of refusal by police officers and also, Soares said, a rising number of regular citizens refusing the tests.

He said the change is not a direct reaction to the fact that a number of local police officers facing drunken-driving charges have refused the tests, but he acknowledged "the fact that police officers engaged in this behavior has certainly amplified this loophole."

Under state law, it is any driver's right to refuse the test, which measures a driver's blood-alcohol content to see if it exceeds the state threshold of 0.08 for intoxication. But doing so carries with it an automatic license suspension that could last as long as a year, even if the driver beats the DWI charge.

While risky, Soares said, refusing the test became more attractive after 2006, when the state passed an aggravated DWI statute boosting the penalties and limiting the options for plea-bargaining for drivers caught with blood-alcohol levels above 0.18, more than twice the legal limit.

Last year, state law was changed to require an interlock device on the vehicles owned by anyone convicted of DWI.

With the penalties for getting caught with a high BAC elevated, more drivers -- including two Albany police officers involved in recent cases -- have been apt to risk losing their licenses, Soares said.

Those two cases have had very different outcomes. In one case, Officer Brian Lutz, who had a prior conviction for the lesser charge of driving while ability impaired, has not been allowed to plea to DWAI and lost his license and his job.

In the second case, longtime department spokesman James Miller -- who has no prior convictions -- was allowed to plea to the reduced charge despite his refusal to take a chemical breath test, paving the way for him to get his licenses and, as of Friday, his job back.

Barring extenuating circumstances, the plea in Miller's case would no longer be possible under the new policy.

Soares said the change builds on his office's already strict plea bargaining policy, which with rare exceptions bars plea bargains to DWAI in cases where a person is caught with blood-alcohol content above .15.

That policy, dating to 2008, Soares said, has helped boost Albany County's rank from the second-easiest county in the state to score a reduced charge to 24th out of New York's 62 counties in 2009.

Defense attorney Lee Kindlon, who is considering challenging Soares for his job next year, questioned whether the new policy was an outgrowth of criticism Soares received over Miller's case.

But Kindlon said he opposes the "broadsword" approach to all cases.

"It's unworkable from practical point of view," Kindlon said. "You have a one size fits all policy that ignores the fact that every case and every defendant is different."

Soares' policy may be the first of its type in the Capital Region. Neither Schenectady nor Rensselaer counties have blanket policies when it comes to DWI chemical test refusals, prosecutors there said.

Schenectady County District Attorney Robert Carney said his office treats each case with its unique facts individually while at the same time trying not reward defendants for refusing the test, which is often seen as an effort to obstruct prosecutors from obtaining valuable evidence.

Rensselaer County District Attorney Richard McNally said his office also favors judging cases individually but makes a point to make sure juries are aware that the fact that a defendant refused the test could be evidence of conscienceness of guilt.

"When you refuse," McNally said, "we're going to take that into consideration because you're gaming the system."

Franklin County District Attorney Derek Champagne, president of the District Attorneys Association of the State of New York, said he believes the tougher DWI penalties have led to more refusals.

"I know in my smaller rural county, we've absolutely seen that," Champagne said. "I think it's an aggressive move that's probably appropriate, and I think he's absolutely correct that the game is changed due to people not wanting to have the interlock device."