By Tyler Murphy

WESTERLO — A Westerlo woman, who was found guilty by a town-court jury of two misdemeanor driving-while-intoxicated charges, was sentenced this month to three years’ probation, alcohol treatment, and ordered to pay $2,595 in fines, but a judge denied a request by prosecutors to send her to jail.

The rare jury trial — most drivers charged with misdemeanor DWI take plea deals rather than requesting a trial — highlighted some of the issues with New York’s drunk driving laws.

Though Barbara Latham, 51, admitted on the stand during her Nov. 13 trial that she and her husband had some drinks at a restaurant before she was pulled over by State Police on her way home, she denied being intoxicated.

Latham was arrested the night of May 1 after police said they observed her driving slower than the posted limit, taking a noticeably wide turn, and then veering over a solid yellow dividing line.

Following a one-day trial before Westerlo Justice Robert Carl, a jury of six took about an hour and a half to reach a verdict of guilty on both counts.

The arresting officer, State Trooper Thomas Burns, testified that Latham had failed several field sobriety tests during the stop and then blew a .09 into an alcohol breath test at the police station, which measures the percentage of the substance in the blood. The legal limit for a DWI offense in New York State is .08 percent.

Though not relevant in Latham’s case, other related DWI offenses can increase the level of a charge to that of a felony. Those instances include when a person’s blood alcohol is .18 percent, more than double the legal limit; if there is a minor in the vehicle; if a person has a previous DWI conviction within the last 10 years; or if a defendant is operating a vehicle requiring a commercial license.

A person suspected of drunk driving can also be charged, if he is involved in an accident or causes injury, with such crimes as reckless endangerment and even manslaughter in fatal crashes. Convictions also weigh heavily in civil lawsuits, and insurance companies covering the cost of damages to victims may demand convicted drivers compensate the company for all the paid-out expenses.

As in many cases involving DWI offenses, Latham was charged with two crimes because of a technicality in the law that distinguishes one offense based on an officer’s observation of a drunk-driving crime and another separate offense based on the results of a breath test, explained Assistant District Attorney Benjamin M. Mastaitis, who


prosecuted that case, for Albany County.

“If she hadn’t taken the breath test, she couldn’t have been charged with the separate section,” said Mastaitis.

Breath testing

However, not submitting to an officer’s request to take a breath test can result in the immediate suspension of an accused persons driver’s license by the state’s Department of Motor Vehicles, even if the driver is not convicted of the crime. Convictions in DWI cases typically result in the automatic suspension of the driver’s license.

The DMV website states defendants are required by law to take a breath test and those who refuse will have their licenses revoked for at least a year, and will have to pay a $500 penalty.

Also, state law allows prosecutors to use a defendant’s denial to take a breath test as evidence against him or her in court, often arguing only an intoxicated person would refuse a test to prove sobriety.

That leaves accused drivers with the prospect of either handing over evidence to be used against them (in the form of a refusal) and having their license suspended, or handing over evidence against them (in the form of a breath test) and being charged with another crime, explained Defense Attorney Kevin O’Brien Jr., Latham’s lawyer from a firm specializing in DWI cases, Anelli Xavier, based in Syracuse.

He said it is a difficult choice for those drivers who have been drinking but believe they are not over the limit. He added that, no matter what they choose, it creates a challenging dynamic for defense attorneys arguing on their client’s behalf in court. He admits though, if a defendant was to pass the test, the likelihood of being charged is low, but he questioned if the law should present the choice at all.

Mastaitis pointed out that the breath test is given, as in Latham’s case, only after police had pulled a person over for an observed traffic violation and after the officer has noticed signs of alcoholic consumption. Examples police might notice include slurred speech, smell, or an admission by the driver of recently drinking.

During the traffic stop Burns testified in court that Latham told him she drank seven Michelob Ultra beers earlier that night.

Police are trained to recognize the physical and mental signs of intoxication and have suspected drivers go through a variety of “field sobriety tests” checking eye movement, balance and cognitive responses before deciding to administer a breath test, said Mastaitis.

Plea-bargaining

“Really, this case was a very simple thing. There was a couple at a restaurant having a few beers and [they] drove home together. The trooper sitting alongside the road noticed they were driving too slowly for the area and followed along. The vehicle swerved over a double yellow line and he pulled them over and it eventually led to [Latham] going through the field-sobriety and breath tests,” said Mastaitis. “In the tests, officers determined she was intoxicated and charged her.”

Mastaitis noted this case was unusual because it was a misdemeanor DWI offense that went all the way to a trial and jury verdict.

“In the time I’ve been covering Westerlo Court — in three years, this is the first time I’ve drawn a jury for a misdemeanor DWI. It’s very rare in my experience, in the courts I see, that these cases go to trial,” said Mastaitis.

Before going to trial, prosecutors made a plea offer that would have required Latham to plead guilty to the charges but she would have avoided probation and jail.

Latham has been an employee of the Department of Motor Vehicles for 32 years and was arrested for driving while intoxicated three years earlier, said Mastaitis. In that case, he said, she accepted a plea from prosecutors for a lesser charge or driving while ability impaired by alcohol, a violation-level crime ranked lower than a misdemeanor.

An impairment charge means a person is guilty of driving a non-commercial vehicle with a blood-alcohol level between .05 and .07 percent.

The ADA said it wasn’t uncommon for defendants to commit two previous offenses for driving while drinking before being charged with a felony. He said in some cases, where defendants are pulled over by police and their arrest doesn’t involve any of the special circumstances, defendants could be allowed to plea down their first DWI offence to an impairment charge.

However, if a defendant is again charged with a DWI within the next 10 years, it’s likely he or she would be offered no reduction in the offense. By ensuring defendants plea to a misdemeanor DWI charge, prosecutors are allowed to charge a felony if the defendant were arrested for DWI in 10 years from the misdemeanor conviction.

“The idea is for repeat offenders to face an escalation of consequences,” said Mastaitis. “If you have prior convictions, generally speaking, getting a plea bargain is less.”

“Certainly, I didn’t feel she was entitled to an offer of impairment — I didn’t feel she should have that opportunity again,” said Mastaitis.

Fighting the charges

Noting the original plea offer was less of a punishment than her sentence after trial, O’Brien said defendants take a risk going before a jury.

“One of the reasons most cases get settle before they go to court is the reality that they will face more consequences by fighting for their innocence,” said O’Brien.

“Ultimately, I feel Mrs. Latham was treated fairly by the [Westerlo] court, but I feel Mrs. Latham and a lot of people get punished for simply exercising their constitutional rights to get a fair trial,” said O’Brien.

The defense attorney said, although the plea bargain offered no probation and no jail time, it was still forcing his client to accept guilt to the original for which she was charged.

“You’re pleading to what you’re charged with. In almost every other plea-bargain case outside of DWIs, you’d expect some kind of reduction in the offence in a plea bargain, but not for drinking-and-driving offenses,” he said.

In court Jan. 8 O’Brien noted that Latham had a reasonably good legal record and had been a responsible employee of the state for more than 30 years.

“And, because she went to trial, this is a person who should be thrown in jail?” he asked the court the rhetorically.

The assistant district attorney however, said Latham’s job at the DMV more her more responsible because she was “fully aware of the penalties and risks involved.”

Prosecutors had asked Latham be sentenced to up to a year in jail, the maximum allowed for her crimes, though Mastaitis said he expected the court to moderate the sentence to a period from a few days to about a month.

Justice Carl declined the request.

Mataitis said part of the reason he asked for a stiffer sentence than the original plea offer was because of the effort required in arranging a jury trial and the fact the defendant refused to accept responsibility.

“Quite frankly, after all we had been though, and this is the second time she had done something like this, jail time was warranted,” he said. “I think she was hoping that maybe, because she was near the legal limit of .08, — she was charged with a blood alcohol level of .09 — that the jury might sympathize and offer her an impairment conviction.”

Zero tolerance justice?

District Attorney David Soares told reporters at a press conference in January that his office was sending an average of two people a week to prison, to serve sentences in excess of one year for crimes related to driving while intoxicated or driving while under the influence of drugs.

O’Brien criticized society’s zero-tolerance approach to drunk-driving crimes, saying they had failed in the goal to deter related crimes and provide help for those suffering from an addiction.

“We aren’t dealing with the real problem,” said O’Brien, “The policy is failing in every aspect.”

In court, O’Brien said Latham’s incident was related to a larger family issue with alcohol and her husband.

After sentencing, Latham said, “I have someone holding me back,” without referring to whom.

O’Brien suggested lawmakers should consult defense attorneys and defendants more often before passing drinking laws.

“You have victims’ perspectives, law enforcement perspectives, prosecutors’ perspectives, and politics in making these laws,” said O’Brien, “But nowhere do you find defendants or defense attorneys involved in the conversations. We know the loopholes they’re trying to work out more than anyone and we have a perspective I think closer to the real issues than anyone. So why aren’t we being asked for our input?”