Gardineer found guilty of lesser DWI

BERNE — After Travis Gardineer was found bleeding under a rolled-over go-cart on Thacher Park Road last summer, the question no one answered for the police at the party he was attending was how he got there.

Last week, defense attorney Paul Dwyer argued during the jury trial — rare in a small town — last week that Assistant District Attorney Brittany Grome couldn’t prove whether or not Gardineer operated the go-cart on a public highway, part of the definition of operating a motor vehicle under the law, without direct evidence. Grome pointed to tire and paint marks in the road from the go-cart, and a blood test that showed Gardineer had drunk alcohol far above the legal limit for driving.

The jury of six in Berne Town Court on June 23 and 24 found Gardineer not guilty of aggravated driving while intoxicated, the most serious charge he was facing. They declared a verdict of guilty for the lesser included offense of driving while intoxicated. They also found him guilty of operating an uninspected and unregistered vehicle. The three charges still include the operation or parking of a motor vehicle on a public highway. Gardineer will be sentenced at a later date.

The jury verdict was a first for Judge Albert Raymond, who observed a DWI jury trial in Knox, with Judge James Corigliano presiding over his first jury trial, the week before.

The jurors were Deborah Lounsbury, Carol Cootware, Shannon Spargo, Michael Pasquini, Elizabeth Chauvot, and Colleen Murray.

On July 13, Gardineer, then 43, was driving a go-cart; his friend, David Filkins, was in another one behind him. They were at a party hosted at Filkins’s home at 1693 Thacher Park Road in Berne.

Filkins testified that he himself had drunk about eight beers as he and Gardineer were racing around a paved circular driveway, which connects to a straight driveway out to the road. He said he saw Gardineer go off of the track in front of him and onto the grass near the road, but his view was blocked by a shrub near him and a tree in the distance. He didn’t see the crash and didn’t know whether or not Gardineer had crashed before ending up in the road.

Filkins said truck traffic from his East Berne Asphalt company has created the tire marks just outside of his driveway.

“I couldn’t distinguish any from any other,” Filkins said of the marks, speaking from the witness stand. “There’s hundreds, going this direction, this direction.”

When Filkins came upon Gardineer, Filkins said, gas was leaking from the upside-down go-cart and the engine was off. Others testified it was blood, instead of gasoline, they saw pooled in the road.

When Deputy Patrick Strollo of the Albany County Sheriff’s Office arrived at the party last summer, he testified, the go-cart was behind Filkins’s house and he got few answers to his questions. Strollo said he observed all around and didn’t see disturbed grass near the road or the three or four traffic cones that Filkins later testified were set up between the road and his driveway at the time. 

Strollo considered the tire marks he saw in the road yaw marks, left by a sharply turning vehicle. Dwyer suggested to him in cross-examination that they could have been from Filkins’s trucks.

“Maybe if they’re going fast and making an emergency maneuver,” Strollo said

“I do not believe they were made by a large vehicle,” he added.

Asked by Dwyer how he determined what happened, Strollo said the property owner, when asked, gestured toward the damaged go-cart.

“Somebody nodded at a go-cart, and you concluded they were racing around the track,” Dwyer said in his questioning with Strollo.

Gardineer, wearing blue jeans, a polo shirt, and workboots, sat silently during the proceedings and did not testify. Dwyer said his client didn’t remember what had happened.

When the two witnesses for the defense, Filkins and his girlfriend, Audra McHale, came to court, they sat behind Gardineer and were later held in the supervisor’s office before called to the stand.

When Grome asked Filkins whether he spoke to Gardineer that day, he said he had and that Gardineer thanked him for taking the time to come to the trial.

Gardineer’s blood, taken at the hospital on the day of the crash, showed he had a blood-alcohol content level of .19 percent. Aggravated DWI is separated from other charges of driving while intoxicated by requiring the offender to have .18 percent or more, which is more than double the level of .08 needed to meet driving while intoxicated, per se.

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