New hurdles for DWI pleas

Albany County DA tightens policy on handling of prosecutions

Section: Main,  Page: A1

Date: Friday, May 16, 2008

ALBANY - Albany County District Attorney David Soares has quietly adopted a stricter policy to govern the handling of misdemeanor drunken-driving cases, an internal document revealed.

A memo obtained by the Times Union details guidelines that prosecutors must use in negotiating DWI plea bargains, which let motorists admit guilt to lesser offenses and avoid possible jail time. The policy establishes mandatory penalties, which vary if the cases involve accidents, repeat offenders and motorists with blood alcohol levels above twice the legal limit. Initialed by Assistant District Attorney Mary Tanner-Richter, the office's DWI specialist, the April 14 memo advises prosecutors to clear any variation from the policy with either her or Soares' second-in-command, Chief Assistant District Attorney Mark Harris.

The instructions come more than two years after a committee that included law enforcement, victims' advocates and a prominent defense attorney recommended similar guidelines to Soares' office.

Sheriff's Sgt. Lenny Crouch, administrator of Albany County's Stop-DWI program, said he was pleased to see the district attorney's office finally take action.

"Had there been more proactivity, less reductions and more convictions, we wouldn't be seeing some of the second- and third-time offenders," he said.

But Crouch was troubled that his own program, which has long lobbied for changes, was not consulted before they were made. The memo instructs prosecutors to notify a representative from the STOP DWI within 72 hours of receiving a file, as well as a victim's advocate in the district attorney's office.

"One of the biggest problems was that we were always ranked so poorly in getting DWI convictions," Crouch said of the state Department of Motor Vehicles statistics that show the number of convictions annually in New York's 62 counties to DWI and drunken with ability impaired (DWAI) offenses.

The rankings then show what percentage of the total convictions are for DWI for each county.

Based on that system, Albany has ranked 55th, 61st, 57th and 60th between 2003 and 2006, a stretch that includes the administration of former District Attorney Paul Clyne.

Defense attorneys were irked by the changes, contending the district attorney's office is prejudging cases uniformly.

"It unnecessarily limits a lot of options," said defense attorney Lee Kindlon, who expects the policy to send more DWI cases to trial where defendants risk getting longer sentences. "The plea bargain system is designed to save everybody time, energy and money. If you are taking things off the table ... if you limit exactly what the plea bargain is, there's not really an incentive to take a plea."

Veteran defense lawyer Steve Coffey, a one-time prosecutor in Albany County, blasted the memo as a mindless "impermissible robotic policy."

On Thursday, Soares defended the policy, calling it part of a comprehensive crackdown on drunken driving across the county that includes compliance checks on bars and taverns.

He specifically cited a case from last July in which two women were killed in a head-on drunken-driving crash while traveling the wrong way on Interstate 787.

"We decided that enough is enough," Soares said in an interview in his office joined by Tanner-Richter and Harris.

Soares said the new guidelines represent a "tougher policy to be sure," though Harris stressed many of them are not new. In any case, the district attorney rejected the defense attorneys' concerns.

"Defendants have an absolute right to a trial," Soares said. "They do not, however, have a right to a plea."

Asked why the office established the policy for DWIs alone, he said, "Of all the crimes, these ones are the most preventable." He said there was no reason to toughen the office's felony DWI policy. The memo stated that all felony DWIs are to be sent to the Albany County Court for review.

Under the "DWI Policy," misdemeanor defendants must receive an alcohol and substance abuse evaluation before being able to accept a plea bargain.

According to the memo:

Whenever a defendant's blood alcohol content is 0.14 percent or lower (the state's legal threshold is 0.08), they may re ceive a charge of alcohol impairment, get treatment deemed necessary, receive a mandatory fine, face a victim impact panel, enter a drunken-driving program and waive any appeal.

When the BAC is 0.15 to 0.19, the latter more than twice the legal limit, and no vehicle crash is involved, the defendant must plea to misdemeanor DWI with treatment if needed, pay a fine and face the victim panel, drunken-driving panel and waiver any appeal.

When the BAC is 0.20 or higher and there's no vehicle crash, the defendant must plea to misdemeanor aggravated DWI, with three years' probation and pay a $1,000 fine. In addition, they must receive treatment if needed and have any vehicle be installed and maintained with an ignition interlock device during the time of probation. They also face the victim impact panel, drunken-driving panel, if eligible, and waiver of appeal.

With "no prior alcohol-related history" but a property-only accident involved, the motorist must get an alcohol evaluation, plead guilty to the DWI or aggravated DWI, receive any needed treatment, pay restitution for uninsured expenses, pay a mandatory fine, as well as face the victim panel, drunken-driving program and waiver of appeal.

In a similar case with minor injuries to someone other than the defendant, the motorist must plea to the DWI (or aggravated if 0.18 or above,) receive any necessary treatment, pay restitution for any uninsured expenses, be fined, get three years' probation and face a victim impact panel, drunken-driving program and waive the appeal.

Should the defendant have a prior alcohol-related conviction, but not be presently charged with a felony DWI, the driver must plead guilty to misdemeanor DWI or aggravated DWI, face a mandatory fine, probation, get a possible interlock device, face the victim panel, waive the appeal - and successfully complete treatment.

Robert Gavin can be reached at 434-2403 or by e-mail at rgavin@