Soares closing DWI ‘loophole’

Off-duty Albany police spokesman James Miller stood with his hands jammed firmly in his pockets as h

Off-duty Albany police spokesman James Miller stood with his hands jammed firmly in his pockets as he stood on the sidewalk on North Pearl Street.

Fellow Officer John Crossman was trying to administer a breath test to the visibly intoxicated detective, after he failed several field sobriety tests. Miller’s blood alcohol content didn’t register with the device properly the first time Crossman held it up to him, and Miller paused before the officer tried to take a second reading.

“Are you going to do it or no?” Crossman can be heard saying in a video captured by his cruiser’s dashboard camera in March.

“I’m going to refuse,” Miller responded quietly in the video.

Miller’s BAC was never legally documented in the case, meaning his refusal may have meant the difference between his being arrested on a misdemeanor driving while intoxicated charge or a much steeper felony count of aggravated DWI. Enacted in 2006, aggravated DWI is given to drivers with a BAC over 0.18 percent and prevents prosecutors from plea bargaining any lower than misdemeanor DWI, a charge that would have led to a mandatory license revocation of a year with no chance for a conditional permit.

Miller’s refusal is a tack that drunken drivers are increasingly using in an attempt to avoid the steeper penalties and ignition interlock devices now mandated for anyone convicted of DWI, according to Albany County District Attorney David Soares. In skipping the test, he said, violators try to negotiate a more favorable plea bargain, such as a reduced charge of driving while ability impaired, a violation that still allows a motorist to obtain a conditional license.

As a result, Soares said breath test refusals have spiked in Albany County. By exploiting this “loophole,” he said some offenders are getting a better deal than they would have if they hadn’t refused.

“It’s getting a little bit out of control, with people who continue to drive drunk and still receive favorable pleas,” he said during a news conference Thursday.

But not anymore, Soares said — at least not in Albany County, where starting next month, prosecutors will no longer allow those who refuse a breath test to bargain down to a violation charge.

“That’s the tough approach we’re taking,” he said, “a tough approach with our guidelines.”

Already, Soares’ office is moving aggressively to promote his change in policy. Just hours after his announcement, an electronic billboard on Interstate 787 boasted the slogan for his campaign: “You’re blowing it.”

Soares didn’t have any hard data to support his claim on refusals, and a spokesman for the state Department of Motor Vehicles said it would take up to a week to compile such information. But he’s not the only one to make such a claim.

Albany Assistant Police Chief Stephen Reilly said his officers have seen an uptick in breath test refusals. He also attributed the increase to the state’s tougher DWI laws.

“We’re kind of seeing a trend there,” he said.

Albany County is among the first to implement such a policy, according to Derek Champagne, the president of the state District Attorneys Association. And he said more may follow shortly if the rate of refusals continues to rise.

“Unfortunately, it’s becoming a real problem,” he said. “There’s a number of rural counties where all of a sudden it’s become an issue.”

Not everyone agrees that Soares’ new policy will help matters. Lee Kindlon, a defense attorney who intends to challenge Soares in 2012, said the district attorney is simply forcing offenders to trial, which will bog down the court system and ultimately result in more acquittals because of a lack of BAC data.

“They suddenly lack a very big piece they need to make their case,” he said.

Kindlon said the policy seems more like a reaction to the April plea bargain in Miller’s case, which reduced his charge to the violation DWAI charge and ultimately allowed him to remain on the force. He also suspected Soares is reacting to the political challenge he’s facing next year.

“It’s a great political trick,” he said of the policy. “But legally, it’s going to be a disaster.”

Soares scoffed at the notion that his policy has anything to do with Miller’s case. Rather, he said Miller’s arrest “amplified and stressed the need to close this loophole.”

Champagne wasn’t sure how much of an impact the new tack would have on Albany County’s court system. However, he credited Soares for being innovative in an approach he can easily reverse if it proves cumbersome or ineffective.

“Nothing like this is ever etched in stone,” he said.

Categories: Schenectady County

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