Wheel'n and Deal'n: Changing how DWI's are prosecuted

Updated: May. 13, 2013 at 10:21 PM CDT
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A statewide DWI tracking system now in the works could change the way cases are prosecuted across the state and at New Orleans traffic court.

The system would reduce the potential for someone to slip through the cracks and be charged as a first offender, for example, when that person should have been charged as a second offender. It could also cut down on wheeling and dealing, which keeps repeat offenders out of jail.

In 2012, more than 1,700 people were charged with driving while intoxicated in New Orleans.

"I have four officers tasked with getting DWI's seven days a week," says NOPD Lt. Anthony Micheu, commander of the Traffic Division.

He says already in 2013, they've arrested close to 400 suspected drunk drivers and of the 15 traffic fatalities in New Orleans this year, at least five were alcohol-related.

Lt. Micheu says, "I don't think people take alcohol and driving very seriously in this area."

According to the National Highway Traffic Safety Administration, 33 percent of all traffic fatalities in Louisiana are alcohol-related, above the national average. That's despite stepped up enforcement and tougher state laws.

If a driver's blood alcohol content is .15 or higher, or passes the .20 mark, punishment guidelines are harsher. The penalties are also supposed to be "enhanced" for repeat offenders.

In theory, that sounds good, but in reality that's not always the way things shake out at traffic court.

FOX 8 legal analyst Joe Raspanti, who also defends DWI's, cautions that every case is different.

"Plea bargains and plea agreements are part of our life, because they have to be," says Raspanti. "But I think the city attorney's office is prosecuting these cases more zealously than they were 10 years ago."

The City Attorney's office says of the 1,591 DWI cases handled in 2012, 1,043 ended with a defendant guilty, many of them plea bargains. Another 438 DWI's were reduced to the charge of reckless operation. 96 cases were thrown out. Only 14 cases actually went to trial.

Raspanti says that's not surprising.  "You have to have the carrot and the stick or there would be no reason to plea, everyone would go to trial," says Raspanti. "We wouldn't need locks on the courthouse.  We'd be trying cases 24/7, 365 days a year."

"But that's okay," says Floyd Johnson. "Because this is something that is 100 percent preventable. All people have to do is not drink and drive."

Johnson is the state executive director of Mothers Against Drunk Driving, a group that monitors court cases across the state. He says reducing charges can be problematic if it allows repeat offenders slip through the cracks.

"I think sometimes with habitual criminals, because these folks are criminals, it could put the safety of the general public in harm's way," says Johnson.

FOX 8 looked through hundreds of DWI guilty pleas at Orleans Traffic Court from November and December of last year and found deal after deal, some questionable.

One Marrero woman was arrested for DWI in June of 2011, just six months after pleading guilty to DWI in Jefferson Parish.  Her case file notes the prior conviction, that she hasn't complied with her probation in Jefferson Parish, and that she continues to drive on a suspended license.

A second offense DWI could have meant mandatory jail time. But the city attorney's office allowed the woman to plead guilty to first-offense DWI, for a second time.

She received no jail time. Instead she was sentenced to more probation, community service, defensive driving school and 30 days of wearing an alcohol monitor called SCRAM. That ankle bracelet can detect even the slightest bit of alcohol consumed.

Police say they usually know if a suspect is a repeat offender and officers document it. Officers are sometimes called about particular cases, but don't decide how to move forward.

"What the judge does with it, that's up to him," says Lt. Micheu. "We don't have anything to do with prosecution nor do we concern ourselves with it."

Raspanti says deals are most common for first-time offenders, with no aggravating circumstances.

But FOX 8 did find plea agreements extended to second-time offenders who were involved in accidents, fought with police or were career criminals.

Do those defendants deserve a break?

"Maybe they don't. Some don't," says Raspanti. "In my experience, when someone gets a DWI within one or two years of a previous one, I don't see a lot of breaks coming to those people, quite honestly."

In the case of a 52-year-old Slidell man, his blood alcohol content registered .269, more than three times the legal limit, when he lost control on I-10 and hit another car driven by a city attorney last May.

Even though he had a DWI guilty plea in Covington seven months earlier, was serving two years' probation, and has previous convictions for armed robbery, drugs and guns, he too got a break, pleading guilty in New Orleans to first-offense DWI.

His blood alcohol content, or BAC, was also lowered to .200, further eliminating the possibility of jail time.

His 150-day prison sentence was suspended. He got 12 months probation, 90 days home confinement with an alcohol monitor, plus substance abuse counseling.

Records show reducing a driver's blood alcohol content to a level that keeps them out of jail is routine.

Last year, when a 35-year-old New Orleans woman got busted for her second DWI, the intoxilyzer registered a .305, almost four times the legal limit.

Lt. Micheu says that's beyond dangerous, and usually lands a driver in the hospital.  "A person who blew a point-three, that is a form of alcohol poisoning, where she can basically pass from this," says Lt. Micheu.

In that case, the female driver pulled up behind a police car on Royal Street, started honking her horn, trying to get officers to move. The arrest report notes she repeatedly cursed at officers, told them to hurry up and that her attorney would have their jobs, upon her release.

For her belligerence and second DWI, she too cut a deal for no jail time, pleading guilty to first offense for a second time. Her blood alcohol concentration was reduced from .305 to .200. Numbers altered, again, in the form of wheeling and dealing.

While the group MADD understands plea bargains are sometimes necessary, it hopes a statewide DWI tracking system being implemented in three parishes later this year will begin to make a difference.

"We would love for them to be prosecuted as charged because we know law enforcement does an excellent job," says Johnson. "I think it's a great start to correct a problem that's been around for a long time."

The judges of New Orleans Traffic Court didn't want to talk on camera.  The City Attorney's office told us by email, the city has a 100-percent acceptance rate and the city's goal is to secure the conviction.

City prosecutors say even if someone has two first-offense DWI's, if they get a third, they're charged as a third offender, which is a felony that will prosecuted at Criminal Court.