DWI deals dropped under Rice

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Just a few months after becoming Nassau County’s district attorney, Kathleen Rice announced a policy change that would help define her tenure.

Rice said she was appalled that DWI defendants testing at twice the legal blood alcohol limit of .08 routinely had their arrests reduced to infractions — the equivalent of a traffic ticket that doesn’t result in a criminal record.

That practice would end, Rice pledged. On her watch, she said, drivers with a blood alcohol content of .13 or more would no longer be able to plead their case down to an infraction.

That policy change and other aggressive moves to combat driving while intoxicated have helped propel Rice, a Democrat, to what a poll last week found to be a 10-point lead over Republican Bruce Blakeman in November’s race for a seat in Congress representing the 4th District. But her statements to crack down on DWI were more than just fodder for campaign ads and stump speeches, according to a Newsday computer analysis of New York Unified Court System data.

Source: New York State Office of Court Administration; Graphic by Matt Clark

When comparing the eight years before Rice took office to the eight years after, through 2013, Newsday’s analysis showed the plea deals Rice opposed plummeted, as she had pledged. Before Rice took office, roughly 3,400 of 6,800 defendants with at least a .13 blood alcohol content pleaded their DWI cases down to infractions. Under Rice, only 260 defendants did so, even though her office handled about 2,500 more cases than were handled during her predecessor’s final eight years.

“It is probably the issue I am most well-known for, and I’m going to keep being vocal about it,” Rice said in a recent interview. “We were allowing the worst of the worst drunk drivers to get a slap on the wrist.”

Changes across LI

Newsday’s analysis found that Rice’s policy shift was followed by a similar change in Suffolk County. Plea bargains there dropped from 2,700 in the eight years before Rice took office in Nassau County to 580 in the eight years after.

Suffolk County District Attorney Thomas Spota, who has held that position since 2001, did not return a request for comment.

Another set of data obtained by Newsday — from the STOP-DWI Association, a state alcohol and highway safety program — ranks counties annually based on the percentage of DWI defendants convicted on the top charge they faced.

STOP-DWI data show that Nassau County went from 28th among the state’s 62 counties in 2005 to fourth in 2013 and first among the 21 counties with at least 500 convictions.

Rice’s effort hasn’t been without its critics, and the policies have also failed to coincide with a significant reduction in alcohol-related crashes, a review of state accident statistics shows.

But Rice has earned praise from those who believe DWI is a crime that warrants a strong punishment.

Rich Mallow, New York State executive director of Mothers Against Drunk Driving, said he was guardedly optimistic when Rice took up the issue of drunken driving during her 2005 campaign for district attorney. When told of Newsday’s findings, Mallow said Rice deserves credit for following through on her pledge.

“When you have a DA that comes out and supports her word, that’s a wonderful thing, and she certainly has,” Mallow said. “She has been a wonderful DA for this cause.”

Rice’s plea deal change was the opening salvo in her battle against DWI. She said she also worked with sometimes-reluctant members of the judiciary to set up a DWI court to more effectively and efficiently handle cases; worked with police to improve enforcement of the crimes; brought a new DWI-education program to 57,000 high school students; and became a major proponent of Leandra’s Law. Among other changes, that 2009 state legislation made it a felony to drive drunk with a passenger age 15 or younger.

“There was a prevailing cultural sentiment about drunk driving on Long Island that it was one of those socially acceptable crimes,” Rice said. “I saw the numbers, I saw the statistics, and they were alarming and they were frightening.”

Rice’s actions brought her recognition, including a feature on the television program “60 Minutes” for her decision to prosecute Martin Heidgen of Valley Stream for murder after a DWI crash.

Heidgen, who was initially charged by Rice’s predecessor, Denis Dillon, plowed head-on into a limousine coming from a wedding. The crash killed 7-year-old Katie Flynn and the limo driver, Stanley Rabinowitz, 59.

Rice’s office secured two murder convictions against Heidgen in 2006. He was sentenced to 18 years to life in prison, and the New York State Court of Appeals upheld the convictions in November 2013.

Not all reactions to Rice’s DWI crusade have been positive. Criminal defense attorneys have accused her of unfairly saddling defendants with criminal records and other hardships based only on the amount of alcohol in their blood.

Misdemeanor offenses can carry much higher penalties than infractions beyond adding a criminal record. Another component of Leandra’s Law requires those convicted of criminal DWI to install ignition-locking devices intended to curb drunken driving for at least one year on all cars they own or operate. Misdemeanor convictions might also lead to fines up to $1,000, a year in jail and at least a six-month license revocation. Those convicted can also face hundreds of dollars in legal, court and traffic school fees and the loss of their car in a government forfeiture proceeding.

Case by case

Mineola lawyer Robert Brunetti said some clients with no criminal histories are having their lives upended because Rice’s office is not taking into account all of their circumstances, including whether a criminal record would cause them to lose their jobs. He suggested the district attorney should use community service or other sentences in lieu of giving defendants criminal records that will follow them for the rest of their lives.

“The people that have these alcohol problems or made a mistake, they are paying the ultimate price,” Brunetti said. “I don’t think any other criminal offense is treated as seriously as DWI, other than maybe sex crimes. The average, law-abiding citizen is getting pounded. So is their family.”

Rice said her office does take into account the circumstances of defendants — including whether they will lose their job — and negotiates appropriate pleas with defense attorneys. She said the only mandatory sentence for those convicted of a misdemeanor is the one-year ignition lock requirement in Leandra’s Law.

“Defense attorneys like to have a bogeyman — and I get I’m an easy target — but … it was the New York State Legislature that imposed that pretty strict law,” Rice said.

Garden City lawyer Thomas Liotti has filed three unsuccessful lawsuits challenging Rice’s DWI policies. He said her office has repeatedly refused to punish his clients without giving them a criminal record that will follow them through job applications for the rest of their life.

“There needs to be more flexibility and more understanding in the plea policies and more latitude to account for people who do have extenuating circumstances and also to provide for alternative sentencing,” Liotti said.

Many of the 260 cases in which a Nassau County defendant pleaded to an infraction are examples of her office taking into account extenuating circumstances, Rice said. Others may have been pleaded down due to perceived weaknesses with the government’s case. She said veterans and youth programs allow such pleas after extensive community service or alcohol treatment, among other penalties.

“I agree with the defense’s position that each case should be handled on a case-by-case basis,” Rice said. “That’s how I handle every case in the office. No two defendants are alike.”

No big shift in traffic stats

Despite the tougher stance Rice has taken, traffic statistics do not show a decline in alcohol-related accidents that’s as dramatic as the drop in plea deals, especially compared with the rest of the state.

According to New York Department of Motor Vehicles data, alcohol-related Nassau County crashes that caused injuries or deaths have declined 14.6 percent since Rice took office through 2012 — the most recent data available — compared with the seven years before. Statewide there was a larger, 16 percent decline, and in Suffolk County the decline was 6.3 percent.

When looking just at alcohol-related fatal crashes, Nassau County’s figures increased 5.6 percent under Rice, going from 178 in the seven years before she took office to 188 in the seven years after. Statewide, the fatal crash increase was smaller, at 3.6 percent. Suffolk County fatal crashes increased 16.8 percent over the last seven years, the Newsday review of the data shows.

Source: New York State Department of Motor Vehicles; Graphic by Matt Clark

Traffic safety experts said the statistics likely do not indicate that tougher enforcement hasn’t had an effect. They pointed out that the numbers are small — New York has among the lowest rates of fatal alcohol-involved crashes in the country — and national accident rates have been stagnant or increasing recently after decades of decline.

James C. Fell, a senior research scientist with the Pacific Institute for Research and Evaluation with 45 years of traffic safety research experience, said studies have shown many of the strategies Rice has pursued have been effective in reducing crash rates. He expressed support for her decision to change the plea-bargaining policy.

“Your chances of getting into a crash are probably 20 times or 30 times greater than someone who is sober when you are at .13,” Fell said. “I kind of agree that they shouldn’t be pled down.”

In the past, Rice has said that traffic fatalities have declined since she took office, and the data show that has been true during certain time periods. She pointed out that the state includes crashes involving sober drivers but drunken passengers or pedestrians in its count of “alcohol-related crashes” and that other factors such as traffic volume can make it “really hard to capture that number.”

“I am proud of my office’s success,” Rice said. “There’s no going back to the days of pre-2006, that is for sure.”

Rice, who has made DWI a significant component of her campaign for Congress, said she plans to continue her fight against DWI and other traffic safety issues in Washington if she wins her election.

“This is an issue for which I am already known nationally,” Rice said, “and I think I would bring a very credible voice.”

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