By John Futty & Jennifer Smith Richards
The Columbus Dispatch • Sunday May 11, 2014
Some people are accused — and even convicted — of driving drunk over and over yet still are able to plead guilty to a lesser charge when they’re before a judge yet again.
The effect: Even people who prosecutors believe are chronic drunken drivers avoid piling up enough misdemeanor convictions for operating a vehicle while impaired to be hit with a felony charge.
So they avoid the possibility of prison time and a lifetime suspension of their driver’s license. Some avoid or delay being placed on the state’s list of habitual drunken drivers.
A Dispatch analysis of 11 years of charges in Franklin County Municipal Court found that people with recent drunken-driving arrests pleaded guilty to amended charges nearly as often as people with no recent drunken-driving history.
The data show that even people who have been charged with OVI five, six or seven times in the past decade were able to take a plea deal that resulted in less-serious charges. On average in recent years, nearly 1 in 5 of all OVI cases in the county ended with a plea deal.
Police arrested a Columbus woman three times on impaired-driving charges in 2012. Even though Katrina M. Delpercio already had two OVI convictions, two of her 2012 charges were reduced through plea deals. Had she been convicted of either of those OVI charges, she would have been labeled a felon.
Neither prosecutors nor defense attorneys are surprised by how often people with past impaired-driving arrests or convictions get reductions on new OVI cases. It boils down to whether prosecutors think they have enough evidence.
“Every single case has to be tried on its own facts,” said Lara Baker-Morrish, the city’s chief prosecutor. “Not all arrests are equal. Some cases are very strong; some are weak.”
It appears that most are strong. About 80 percent of the roughly 6,000 OVI cases in Franklin County each year result in OVI convictions. Those cases are almost always resolved with a guilty plea to the original charge. The city attorney’s office took only 16 OVI cases to jury trials last year.
Even defendants who plead guilty to a reduced charge often receive a sentence that includes the minimum penalties for an OVI conviction: three days in a driver-intervention program, a $375 fine plus court costs and a six-month license suspension. Most are given driving privileges for work, school or treatment programs.
The city attorney’s office typically insists on those penalties as part of plea agreements for reductions.
Even someone like William L. Howell, a Delaware resident who was convicted of four OVIs between 1994 and 2003, can cut a deal on OVI arrest No. 5. And he did, pleading guilty to reckless operation of a motor vehicle.
In 2005, a Franklin County judge sentenced Howell to probation and banned him from driving for almost a year. That allowed him to keep driving, after his license suspension ended, for six more years before he got two more OVI convictions.
Howell is in prison now and labeled one of the state’s habitual drunken drivers.
City prosecutors began tracking the reason for their OVI plea deals on Feb. 1 in an effort to gather more information about the outcomes of cases of drug-impaired driving. Since then, they’ve closed about 1,000 OVI cases. More than 30 percent of the defendants had been convicted of OVI before.
Each of the 15 municipal-court judges routinely accepts the guilty pleas and sentencing recommendations.
Judge Carrie E. Glaeden said prosecutors arrange the plea deals, and judges usually don’t know why a reduction was offered.
“I take prosecutors at their word,” she said. “If they don’t think they can make a case, I don’t ask why. They know how strong their evidence is and whether a case merits a reduction or not.”
Defense attorneys who specialize in OVI cases say poor police work, including improperly conducted field-sobriety or breath-alcohol tests, leads to reductions.
But another factor appears to have an even bigger effect: It is increasingly common for drivers to refuse to submit to breath, urine or blood tests. Without such a test, prosecutors are left to pursue an OVI charge without a key piece of evidence: the level of alcohol in the driver’s system.
In 2009, defendants refused chemical tests in 36 percent of the cases handled by city prosecutors. In 2013, it was 41 percent.
Since February, city prosecutors have reduced charges in about 215 cases. In 61 percent of those cases, the defendant had refused the tests, according to a Dispatch analysis of the prosecutors’ case data.
“I hate refusals,” Baker-Morrish said. “Our job is to build a brick wall, piece by piece. The defense’s job is to put a hole in the wall. With a refusal, you walk in there with a hole in the wall.”
Some defendants use the tactic as a way to plead guilty to lesser charges over and over.
Take Bennie Fornash, a 38-year-old Lewis Center resident. He has never been convicted of OVI.
But he was arrested and charged with impaired driving four times in Franklin County between 2005 and 2013. He was pulled over early in the morning at least twice after police said he was speeding (80 mph in a 45 mph zone, for example) and once for veering left of center.
Fornash refused the breath test in each of his past three cases. The case file is no longer available for the 2005 arrest. But in all four cases, the OVI charge was reduced to physical control of a vehicle while impaired or to reckless operation of a vehicle.
Fornash, through Sam Shamansky, his attorney, declined to comment.
Shamansky would not discuss the specifics of Fornash’s reductions but said, in general, that defendants who have a previous drunken-driving arrest “have a greater understanding about exercising their constitutional rights.”
Those who have been through the system are more likely “not to incriminate themselves by doing a bunch of ridiculous stunts by the side of the road that are all designed for failure, and not to submit to a chemical test,” Shamansky said.
Nothing in Ohio law requires drivers to submit to field sobriety tests — a series of physical tasks that include a one-legged stand and an eye test known as the horizontal gaze nystagmus. But the state legislature has created penalties for refusing to take the breath, urine or blood test.
In some cases when a driver refuses to take a test, particularly when the driver is involved in a fatal or potentially fatal crash, the arresting officer will obtain a warrant from a judge for a blood sample.
For a driver who has never been convicted of OVI, refusing to take a chemical test results in an automatic one-year license suspension.
If the driver submits to the breath test and his or her blood-alcohol level is at or above 0.08 percent, the result is a 90-day license suspension.
Arresting officers are required to explain this to drivers.
“What they don’t tell you is, if you’re convicted of OVI, there is a mandatory license suspension of six months to three years,” said Columbus defense attorney Daniel Sabol. “The 90-day benefit goes away. By wanting to have only a 90-day suspension, you’re giving the government the evidence they need to suspend your license for at least six months.”
Ultimately, the length of the license suspension can be increased or reduced through an agreement between the prosecution and defense, Sabol said.
For drivers with an OVI conviction in the previous 20 years, refusing to take the breath test is treated as a separate offense with a penalty that includes three days in jail. But they can’t be convicted of that secondary offense unless they are convicted of OVI.
In the 1,000 cases that Columbus prosecutors closed since February, they still managed to get OVI convictions of about half the defendants who refused the chemical tests.
Without a chemical test, it becomes a game of chess between prosecutors and defense attorneys. Prosecutors look to the other evidence: field sobriety tests, police officers’ reports about the arrestee’s appearance or behavior, and statements captured on a cruiser’s video and audio systems.
Defense attorneys try to poke holes in that evidence, jockeying for a plea deal.
Video can be “a beautiful thing” for a defense attorney hoping to get a reduction for a client, Sabol said. “You wouldn’t believe how often the video shows something not in the police report or that contradicts the police report.”
Jon Saia, another Columbus lawyer who specializes in OVI defense, said cruiser video “is so favorable to the defense it’s unbelievable.”
Sabol and Saia said mistakes by arresting officers, often captured on video, lead to reduced charges for many of their clients.
Both lawyers are trained as field sobriety-test instructors and in operating Ohio’s most-common breath-alcohol machine. They look for problems with how those tests are administered, which can lead judges to suppress evidence.
Saia estimated that he has reviewed as many as 1,000 videos of field sobriety tests.
“Never, not one single time, have I seen it done correctly,” he said.
All Columbus police officers take a 32-hour course in OVI enforcement that is required by the state, said Sgt. Michael Smith, who supervises training for impaired-driver enforcement for the Police Division. Additional courses are available for officers who want to develop a specialty in OVI enforcement.
“I would agree that, in the Columbus Division of Police, there are officers who have more training and are more proficient than their peers,” Smith said.
He disputes the notion that cruiser videos reveal that officers intentionally exaggerated or embellished signs of impairment in their written reports.
“The defense attorneys get the benefit of frame-by-frame dissection of something that happened to an officer in real time,” he said. “The officers’ perceptions are based on what’s going on in real time.”
Hiring an attorney isn’t required for those charged with drunken driving, but it’s a good idea, Franklin County Municipal Judge Anne Taylor said.
She frequently handles guilty pleas in arraignment court from OVI defendants representing themselves. In her 22 years on the bench, Taylor has seen the difference a good lawyer can make in an OVI case.
“There is a role for advocacy,” she said. “If you’re represented by someone who is not as persuasive, not as skilled, you probably won’t have as favorable an outcome.”
Defense attorneys who help clients get OVI charges reduced shouldn’t be portrayed as contributing to the problem of drunken driving, Sabol said. “We’re protecting the Constitution. We want law enforcement doing their jobs properly, and we want equipment that works. We don’t want officers cutting corners, denying people their rights or using faulty equipment.
“People complain about someone getting off on a technicality, but that’s called the Constitution of the United States of America.”