BY THE NUMBERS
48% charges dropped or reduced in 34,081 cases involving a single DUI-level charge
64% of single DUI-cases dropped or dismissed when private attorney ID'd as counsel
30% of single-DUI cases dropped or reduced when public defender ID'd as counsel
12,712 defendants who pleaded to reduced charge in single-DUI case
1,222 defendants who pleaded to reduced charge in DUI case and were later sentenced on separate DUI charges
How We Did The Series
This series results from an analysis of the Volusia County Clerk of Court's Criminal Justice Information System database. Reporter Ron Hurtibise used database analysis software to extract records of 44,873 DUI criminal charges and study case outcomes.
The findings in these stories, however, focus on 34,469 cases that were filed with just a single DUI-level charge.
Because the analysis intended to find out what percentage of cases are typically dropped or reduced, we excluded about 4,400 cases with multiple DUI charges.
Why did we do this? First, because cases with just one DUI charge are typical of what most defendants face, and we wanted our results to reflect outcomes of the most common types of cases, rather than unusual or extraordinary cases.
In cases with multiple DUI charges, a police officer might write citations for DUI, DUI leaving the scene of a crash, and DUI refusal to submit to breathalyzer test. In those cases, prosecutors normally drop all but one DUI-level charge. Including them in our calculations would have produced artificially high percentage rates for dropped and reduced cases.
BEATING the DUI Rap
Nearly half of cases are dropped, reduced
Winner, Gene Miller Award for Investigative Reporting, South Florida chapter of the Society of Professional Journalists Sunshine State Awards, 2010
Published in the Daytona Beach News-Journal on December 27, 2009
"Seriously?" The woman in the Daytona Beach Shores police video shook her head when told she was under arrest, like more than 2,000 people in Volusia County each year, on charges of driving under the influence.
Stopped for a traffic infraction, she admitted having "a couple" of beverages.
Unlike other defendants caught on tape, the patrol car video doesn't present an open-and-shut case that she's impaired.
On the "walk-and-turn" test, she doesn't stumble or fall. She sways during the "one-leg-stand" test and looks OK on the "finger-to-nose" test, though you can't closely see her finger or her nose.
She aces the alphabet test before being placed in handcuffs, taken to the station and given a breathalyzer test. She blows blood alcohol content readings of 0.141 and 0.151 - well above the 0.08 limit that's illegal for drivers.
Later, she hires a private attorney and pleads no contest to reckless driving, joining the ranks of about half of all people arrested on DUI charges in Volusia County whose cases are reduced or dismissed.
Perhaps she learned her lesson. But there's a 1 in 10 chance she'll get another DUI someday and be sentenced as a first-time offender. She might be on the roads tonight, driving a deadly weapon, armed with the knowledge she's not a convicted drunken driver.
A Daytona Beach News-Journal analysis of the county's Criminal Justice Information System database shows what many have long suspected - DUI defendants who hire private attorneys enjoy excellent prospects of avoiding a DUI conviction, especially if they've never been charged with DUI before.
Of 15,240 such cases involving a single DUI charge between 1992 and 2008, 64 percent of defendants identified as having private attorneys pleaded to charges that were dropped or reduced below DUI-level. Meanwhile, just 30 percent of comparable cases identified as represented by public defenders were dropped or reduced.
The numbers suggest an inequitable system in which defendants who can afford attorneys are routinely allowed a second chance and spared long driver's license suspensions while their poorer counterparts have little choice but to accept a DUI conviction.
The reasons are complicated, according to officials familiar with the system. Private attorneys have the time, expertise and motivation to look for flaws in cases against defendants. Public defenders, with much larger caseloads, often aren't even assigned to such cases until defendants decide to plead to DUI charges and put their cases behind them.
To advocates of stronger drunken driving laws, the high percentage of dismissals and reductions suggest many defendants get off too easy and, with no DUI conviction on their record, are inclined to drink and drive again.
Scott Campbell, coordinator of the Volusia County branch of Mothers Against Drunk Driving, says that while some defendants never reoffend after their charges are reduced, others say, " OK, I pay this money, go to that class, and hey, 'I can do it again.' "
And hundreds get caught doing it again. Of 12,712 defendants whose single-DUI cases were reduced to lower charges, 1,222 were arrested again - and convicted - on DUI charges.
Some went on to hurt or kill others after getting that second chance.
Prosecutors say they often agree to reduce charges to resolve cases that might not be winnable before a jury.
Then they can concentrate on convicting the most dangerous offenders, like the woman who crashed her car into a ditch in New Smyrna Beach in January 2008.
An open bottle of wine was found in the car, mostly consumed. "Go ahead and shoot me now," she cried to police.
Later, a neighbor at her apartment complex sent the judge an anonymous letter asking that she not be let off lightly.
"She has been driving drunk for many years," the letter said. "She swerves into the parking lot, falls out of her vehicle, often leaving the car door open and engine running and stumbles up the steps to her apartment." The neighbors fear the woman "will one day kill a child or senior who cannot get out of her way," the letter said.
The woman was convicted of DUI.
VIDEO IS KEY
Prosecutors are least likely to hold out for convictions if defense attorneys find flaws in an arrest report or a video shows the defendant doesn't look drunk.
Defense attorneys study the arrest report to see whether the officer followed the law during the investigation and arrest: Why was the defendant pulled over? What did the officer see in the vehicle? How did the defendant get out of the vehicle? How did the officer compel the defendant to take the field sobriety and breathalyzer tests?
"Sometimes when a defendant files a motion to suppress (evidence), we'll review it and realize they are likely to prevail," said Ben Fox, who heads the misdemeanor prosecution division in East Volusia for 7th Circuit State Attorney R.J. Larizza.
Sometimes no motion is filed, says Assistant State Attorney Chris Kelly. Defense attorneys "come in and say, 'Here's the weakness of your case.' "
"And we'll see it," adds Fox. "Sometimes we'll see it before they come in."
In a June 2008 case, a woman was arrested in Daytona Beach and blew a 0.165 on the breathalyzer.
But her attorney filed a motion to suppress evidence because the arrest video showed the officer incorrectly telling her she had no choice but submit to field sobriety exercises.
"When you get your license you agree to do them," the officer said.
Her charge was reduced to reckless driving.
When police departments videotape arrests, those videos become "the single most important factor" in the case, Fox said.
"That's what the jury pays attention to. We look at it, and if the guy looks sober as a judge, it's far less likely we're going to take that to trial."
Defendants are becoming smarter as well, the prosecutors say. When they refuse to take a field sobriety or breathalyzer test, they give up their driver's license for at least 90 days under the state's administrative suspension law but often deprive prosecutors of evidence needed to convict them, Larizza said.
Not all cases that get reduced are flawed.
According to Larizza, who defended some drunken driving cases before his 2008 election as state attorney, some defendants are allowed to plead to a lesser charge even if the case could be prosecuted, because of school or work factors "and the person deserves an opportunity."
DUI defendants are willing to pay defense attorneys thousands of dollars because they have to drive, says Daytona Beach attorney Flem K. Whited, considered one of the state's leading DUI defense experts.
A DUI conviction can disqualify people for driving-related jobs while reckless driving convictions might not, he said. And if there is another DUI arrest, and a DUI conviction, the defendant with the previous reckless conviction will usually be sentenced as a first-time DUI offender.
MADD's Campbell says prosecutors should push harder for DUI convictions when evidence is clear that a driver was impaired.
"It's a game between them all," he said. "All the State Attorney's Office has to do is say, ' No, I'm not giving them a deal.' "
Prosecutors say they don't have the resources to take hundreds of DUI cases to trial each year.
They point out that an alcohol-related reckless driving conviction is still a conviction carrying a sentence of six months probation, monthly drug and alcohol screenings, and a DUI education class.
Then there's the high cost of fighting a DUI charge, starting at $1,500 for the least experienced attorney, Whited said.
Fines, fees and court costs exceed $1,600 - more if the offender buys out of performing the mandatory 50 hours of community service at $10 for each unworked hour.
Blowing at least 0.08 or refusing the breath test also results in an administrative license suspension by the state Department of Highway Safety and Motor Vehicles in a process that's separate from the criminal case. Only a not-guilty verdict in a jury trial can get that suspension lifted automatically.
The suspension takes effect 10 days after the arrest to give defendants time to appeal before a state hearing officer. Just 22 percent of administrative suspensions are overturned, according to department statistics. But 93 percent of applicants qualify for a "hardship" permit to drive to and from work, church and school, after a 30-day "hard suspension" if the defendant blew a 0.08 or above, or a 90-day wait if the defendant refused to blow.
DEFENDER CASES DIFFERENT
For defendants forced to rely on a public defender in their DUI case, the goal isn't keeping a DUI conviction off their record. It's getting out of jail and getting back to work, says Jim Purdy, 7th Judicial Circuit Public Defender.
That difference helps to explain why far fewer of the public defenders' DUI cases are resolved with dismissals or reductions, Purdy says.
Public defenders represent the accused in two-thirds of all criminal cases but just a third of DUI cases because the crime "knows no socio-economic boundary," he says.
"An otherwise law-abiding citizen who works a 40-hour-a-week job, supports his family, pays his mortgage, white or blue collar, is just as likely to commit this crime as anyone else," he said.
Defendants who can afford a private attorney often hire one within 10 days of the arrest to represent them in the license-suspension hearing. Public defenders are not allowed to go to those hearings, and generally aren't appointed to a DUI case until the defendant is arraigned.
"One reason public defender cases will be (guilty) 'as charged' more frequently is the public defender will be meeting them for the first time at arraignment, and their primary goal is to get out of jail," Purdy said.
Defendants with private attorneys don't have to show up at court. Defendants with public defenders have to go to every hearing. Many decide to plead no contest to DUI charges at arraignment and live with the DUI conviction to avoid further hearings and go back to work, he says.
Since Purdy took office in January 2005, prosecutors have become more willing to reduce DUI charges in public defender cases, he says. That's because he's been pushing his attorneys to take more DUI cases to trial - losing less than half, 35 of 74.
"If the state knows they can roll over you, they will have no incentive to give you a better offer," he says.
And public defenders have a much heavier caseload, 300 to 400 cases each, compared to about 50 cases for private attorneys.
"There are enough private attorneys to keep pressure on the system to get the disposition they are looking for to a higher degree than we can," Purdy says. "And people don't hire private attorneys to plead them out guilty as charged."
They pleaded to reduced charges, then blew their 'second chance'
In many parts of the country, DUI defendants are often allowed to plead to re-duced charges of reckless or careless driving. Prosecutors say this helps resolve flawed or questionable cases without trial, but is also allowed when otherwise law-abiding defendants demonstrate they deserve the break.
Here are some DUI offenders from Volusia County who blew their second chances:
Adam Philip Dietrich: Two years after his 1996 DUI charge was reduced to reckless driving, the South Daytona man, then 26, got into his truck with a 0.191 blood alcohol reading - more than twice the 0.08 limit by which drivers are legally drunk - and hit a 22-year-old motorcyclist from behind. He dragged the victim, an Embry-Riddle Aeronautical University student, about 100 feet before witnesses chased him down with their cars. The motorcyclist died and Dietrich was sentenced to 15 years in prison.
Steven G. Jarman: He pleaded to reduced charges after his 1994 DUI arrest, then was sentenced as a first-time offender for his 2001 DUI. In 2004, he was charged with DUI manslaughter after he swerved his SUV and hit a parked car, causing his passenger to hit her head against the windshield and later die.
Jeffrey Scott Wright: Sentenced on DUI charges in 1997 and 1998, his 2003 DUI charge was reduced to reckless driving. If he had been convicted on the third charge, he would have lost his license for 10 years and could have gone to jail. That might have prevented him from crashing into a tree and causing serious injury to his passenger while driving drunk in January 2004.
Kimberly Ann Frisch: Convicted of DUI in 1995 and allowed to plead to reduced charges after separate DUI arrests in 1995 and 1999, her license was revoked after she crashed her car into a DeBary house in 2002, sending her passenger to the hospital because he could not feel his legs. If convicted in the earlier cases, her license would have been under suspension in 2002 for the 1999 arrest.
Richard Andrew Philips: His DUI arrest on March 30, 2008, was reduced to reckless driving despite the fact he blew a 0.132 and 0.137 on a breathalyzer test. His attorney filed to suppress evidence because the arresting officer said he pulled Philips' vehicle over as "suspicious" without further explanation. He was arrested on another DUI charge on Oct. 23, 2008. While awaiting trial on that charge, he was arrested again on March 4, 2009, and blew a 0.190 and 0.199.
Jayson Paul McLarnan: He pleaded to reduced charges after DUI arrests in 1992 and 1994. He was convicted of DUI after a 2001 arrest, was arrested again in 2003 and got that charge reduced. He spent 10 days in jail after a 2004 DUI conviction, then was busted for DUI and driving on a suspended license in 2006. That one earned him 29 days in jail and enrollment in a Level 2 substance abuse course.
How many drinks before you're impaired?
How much can you drink before your blood alcohol content reaches the 0.08 level of legal impairment? The answer depends on how much you weigh, what you've eaten and how fast you drink.
According to a chart published on the California Department of Motor Vehicles' Web site, three drinks within an hour will boost you to 0.08 if you weigh between 130 and 189 pounds. Four drinks will get you there in an hour if you weigh 190 pounds or more.
A drink is defined as a 1 1/2-ounce shot of 80-proof (or 40 percent alcohol) liquor, a 5-ounce glass of 12-percent alcohol by content wine or a 12-ounce glass of 5 percent beer. Alcohol levels are higher in drinks such as ale, malt liquor, fortified wines, port or brandy. Blood alcohol levels may also increase if you are drinking on an empty stomach, are tired, sick, upset, or have taken medicines or drugs.
The body metabolizes alcohol at a rate of about one drink an hour, so someone who weighs 190 pounds or more could space out four drinks over four hours and never exceed a blood alcohol level of 0.04, the chart shows.
- Ron Hurtibise
Convict for DUI or reduce to reckless?
Prosecutors in Volusia County say they agree to let DUI defendants plead to reduced charges when they believe a jury might acquit because of flaws in a case, the defendant looks sober on video, or because of special circumstances involving the defendant's personal life. Here are the results of a random review of 10 DUI defendants, none with previous DUI arrests, allowed to plead to reckless driving charges and 10 convicted on DUI charges in 2008. Unless otherwise noted, all were stopped after violating traffic laws and exhibited signs of impairment during field sobriety exercises, according to police reports.
Pleaded to reduced charge:
*Female, 62: New Smyrna Beach P.D.: Blew 0.074, 0.077 BAC; involved in crash with injuries. Hired private attorney.
*Female, 56: Port Orange P.D.: Refused BAC test; admitted two drinks. Attorney filed motion charging traffic stop illegal.
*Female, 23: P.O.P.D.: Refused BAC test; "nearly dropped motorcycle," "staggered" after stop. Assigned public defender.
*Female, 50: P.O.P.D.: Blew 0.104, 0.113 BAC. Hired private attorney.
*Male, 40: Oak Hill P.D.: Refused BAC test; seen "nearly dropping motorcycle" numerous times." Hired private attorney.
*Male, 57: Volusia County Sheriff's Office: Refused BAC test; empty beer cans and gin bottle in officer's view in car. Hired private attorney.
*Male, 59: Ormond Beach P.D.: Refused field sobriety exercise; refused BAC test. Hired private attorney.
*Male, 29: Florida Highway Patrol: Blew 0.093, 0.083 BAC; admitted drinking "a little bit." No attorney; pleaded at arraignment.
*Female, 29: P.O.P.D.: Blew 0.163, 0.165 on BAC; admitted drinking three to four glasses wine. Private attorney filed motion charging she did not "freely and voluntarily" submit to field sobriety exercises.
*Male, 45: South Daytona P.D.: Refused BAC; officer approached him outside convenience store after clerk reported he was inside and drunk; admitted drinking six beers over past couple hours; officer told him not to drive, then stopped him after he drove anyway. Hired private attorney.
Sentenced on DUI charges:
*Male, 47: FHP: Was driving pickup on S.R. 44 when a motorcycle with two woman drove into his path. Motorcyclists both died in collision and were found at fault. Defendant's blood was taken at scene, test came back at 0.095 BAC. Hired private attorney.
*Male, 59: DeLand P.D.: Blew 0.198 BAC; crashed, told officer he drank at bar; tried field sobriety exercises and said he "just couldn't" complete. Hired private attorney.
*Female, 44: Daytona Beach P.D.: Blew 0.198 BAC; found crashed "into woods" in driver seat, admitted empty wine bottle on ground was hers. Hired private attorney; motion to exclude breath test result denied.
*Female, 45: New Smyrna Beach P.D.: Blew 0.196, 0.184 BAC; alcoholic drink found in car. Hired private attorney.
*Female, 46: NSB.P.D.: Refused BAC test; car found in ditch with defendant behind wheel; open bottle of wine found within reach in car. Anonymous letter sent to judge by "neighbors" said she's been driving drunk for years into apartment complex parking lot and asked she not be "let off with a slap on the wrist." Assigned public defender.
*Male, 57: Ponce Inlet P.D.: Refused to participate in field sobriety exercises; blew 0.217 and 0.218 BAC; pedestrian saw him strike street sign with his truck. Hired private attorney.
*Female, 44: P.O.P.D.: Blew 0.202 and 0.204; admitted "a few drinks." Waived counsel and pleaded no contest at arraignment
*Female, 42: D.B. Shores P.D.: Blew 0.153, 0.144 BAC. Assigned public defender
*Male, 46: P.O.P.D.: Blew 0.180 BAC twice; admitted "a few beers" at bar up the road. Assigned public defender
*Male, 51: V.C.S.O.: Blew 0.120, 0.119 BAC; deputy watched him drop his motorcycle to ground and fall with it; admitted "4 or 5" beers. Assigned public defender.