TODAY When 0.08 isn’t -...

8A SUNDAY, AUGUST 8, 2004 • • • THE CHARLOTTE OBSERVER | www.charlotte.com

Officers can give an assortmentof field sobriety tests:

Walk a straightline while counting outloud

One-legstand

Track a moving object with the eyes

THE TESTSTHE STOP

Officers can stop motorists for many reasons, including:

Driving the wrong way on a one-way road

Tail lights out

SOURCES: Observer analysis of N.C. DWI data, and interviews with police, prosecutors, defense attorneys and judges.

Driving at night without headlights on

Swerving across the center line

Speeding

The Road to DWI

Officers will try to smell foralcohol. They’ll look for signs of impairment after asking drivers tostep out of their vehicles. Forinstance, they’ll check to seewhether the drivers slur theirwords are unsteady on their feetwords, are unsteady on their feet,or fail to follow instructions.

Officers also use hand-held

THE TOOLS

Officers will decide at this point

whether to arrestsuspect.

DWI: SOBERING

Drivers in North Carolina are more likely than those inmany states to escape conviction if they’re charged withdrunken driving, one recent study suggests.

A survey of 26 states by Mothers Against Drunk Driv-ing found that 18 had higher conviction rates than NorthCarolina. The survey looks at the percentage of driverscharged with impaired driving who are convicted. InNorth Carolina, the figure was 68 percent for 2000-01.

A panel of experts convened by the National HighwayTraffic Safety Administration recently recommended thatjurisdictions look closely at their systems if fewer than 80percent of those charged with drunken driving are con-victed. Since 2002, all of North Carolina’s counties havefailed to meet that goal. — AMES ALEXANDER

N.C. conviction rate 19th out of 26MADD SURVEY

When drivers in the Char-lotte region go to trial after test-ing over the legal limit, convic-tion rates vary, from nearly 80percent in Cabarrus County tojust below the 63 percent stateaverage in Gaston and Meck-lenburg counties.

Elected District Courtjudges, not juries, handle mostDWI cases in North Carolina.

Cheryl Jones of Charlotte, anational vice president ofMothers Against Drunk Driv-ing, said she’s frustrated thatjudges are letting off DWI sus-pects who test at 0.08 orhigher. And she’s worried thatthose suspects will later go onto kill or injure.

“Something is terriblywrong,” Jones said. “We havevery good laws. But we havejudges who are doing whateverthey please. They aren’t follow-ing the law. … Every one ajudge lets off thinks they havebeaten the system and they’regoing to do it again.”

MADD has long creditedNorth Carolina with stronglaws and police enforcement.North Carolina arrests moreDWI suspects than most states,and most charged with drunk-en driving plead guilty.

In 1993, North Carolina low-ered the alcohol concentrationlimit from 0.10 percent to 0.08.A typical 170-pound manwould reach 0.08 by drinkingfive beers over two hours on anempty stomach.

The rate of alcohol-relatedtraffic deaths in North Caroli-na, based on miles driven, hasdropped more than 20 percentsince 1993.

Legislators who wrote NorthCarolina’s impaired-drivinglaw say they intended a 0.08 al-cohol reading to prove guilt,unless there’s compelling evi-dence the reading wasn’t accu-rate.

Today, a decade after thelaw’s passage, many N.C.judges routinely acquit sus-pects who register 0.08 or 0.09.At those levels, some judgessay they need to see other signsof impairment before convict-ing. They say the Intoxilyzer5000, the state-approved de-vice used to test alcohol levels,isn’t foolproof.

Cumberland County JudgeEd Donaldson acquitted about

500 DWI suspects – more than70 percent of those tried beforehim – in the 26-month period.More than 370 of those acquit-ted tested over the legal limit.

“The Intoxilyzer is just an-other piece of evidence,” Don-aldson said. “It may be a majorfactor. It may not be. I’mlooking at the whole picture.”

Experts say the Intoxilyzererrs on the side of the defen-dant. It generally underesti-mates alcohol results by 10 per-cent, says one highway safetyexpert. Suspects blow into theinstrument twice and the lowerof the readings is used in court.Results are rounded down.Used in 33 states, the Intoxi-lyzer meets the accuracy re-quirements of the NationalHighway Traffic Safety Admin-istration.

Chief District Judge RobertCilley, who lives in Transylva-nia County, works in the five-county judicial district with thestate’s highest DWI convictionrate. Cilley presided over thetrials of more than 300 DWIsuspects and, according tostate court records, convictedall but 10.

“In general, a .08 is a slamdunk for conviction,” he said.“North Carolina’s statute saysthey’re guilty. And that’s thelaw I’m sworn to enforce.”

Drivers who blow over thelimit automatically lose their li-censes for 30 days. Those whorefuse the alcohol test losetheir licenses for a year.

Suspects found guilty of im-paired driving could spendfrom 24 hours in jail to twoyears in prison and pay fines upto $4,000. They also lose theirdriver’s licenses for at least ayear.

In the 26-month period,prosecutors across the statehandled more than 88,000DWI cases in which defen-dants tested over the legal lim-it. Roughly three quarters ofthem pleaded guilty or wereconvicted in trials.

More than 19,000 of the sus-pects avoided court punish-ment when their cases weredismissed, many because po-lice officers, witnesses or eventhe drivers themselves failed toshow in court.

And more than 3,500 wereacquitted, according to statedata.

While that’s a small percent-age of those arrested, the out-comes of those trials help set

the tone for how DWI cases arehandled in the criminal justicesystem. In counties wherejudges acquit many suspects,defense lawyers will likelyplead more of their clients notguilty. They’ll also try to puttheir cases in front of judgeswith the lowest convictionrates.

And highway safety advo-cates say letting off DWI sus-pects who test at 0.08 or abovesimply encourages them todrink and drive again. And nexttime, they warn, the conse-quences could be fatal.

Since 2000, N.C. judges haveacquitted more than 120 sus-pects who later were convictedin DWI cases involving wrecks.

Drivers with an alcohol levelbetween 0.08 and 0.10 are atleast 11 times more likely to bekilled in a one-car crash thannondrinking drivers, accordingto a 2000 study published inthe Journal of Studies on Alco-hol.

Beaufort Police Chief SteveLewis, who works in coastalCarteret County, where theconviction rate is the state’slowest, said those let off are“learning how to be betterdrinkers and drivers.”

“They know they got awaywith it,” Lewis said. “Theythink they can get away with itagain.”

Low conviction rate

From Charlotte to beachtowns, police officers say theyare tired of arresting drunkendrivers, then losing in court.

In the coastal judicial districtthat includes Carteret County,about 400 DWI suspects wentto trial after testing over the le-gal alcohol limit in the periodthe Observer studied. Fewerthan 40 were convicted.

“We bust our butts out hereto make good cases. And theylet them go,” says police officerJames Gaskill, who works forthe Carteret County town ofMorehead City. “I have nodoubt the people smirk and say,‘I’ll do it again.’ ”

Last year, Gaskill testified intrials of five DWI suspects he’darrested. Judges didn’t convictany of them.

Gaskill said in one case, aman repeatedly backed his carinto a bush and was found tohave an alcohol level of 0.14. Ajudge found him not guilty.

Judge Paul Quinn, whoworks in the judicial district

that includes Carteret County,has presided over the trials ofmore than 130 DWI suspectswho tested over the legal limitduring the 26-month period.He has convicted about 10 per-cent of them.

Quinn said he looks at theentire case, not just the Intoxi-lyzer reading. He says he con-siders the suspects’ field sobri-ety tests, attitudes and answersto questions.

“It’s more than looking at anumber and saying guilty or in-nocent,” Quinn said.

Wrenn Johnson, actingMorehead City police chief,knows her officers are frus-trated.

“We understand we’re notgoing to win,” she said.“…These cases are decided be-fore they get to court.”

Judge: Many cases weak

In Raleigh, Wake Chief Dis-trict Judge Joyce Hamiltondoesn’t think she has a rep-utation as a lenient judge.

“I try to be fair,” the formerprosecutor said. “I listen to allthe evidence and make a deci-sion based on that evidence.”

During the 26-month period,Hamilton presided over trialsof more than 70 DWI defen-dants and convicted about 10percent of them, according tostate court data.

Wake’s judges convicted lessthan 15 percent of about 450drunken driving suspects whowent to trial after testing overthe legal limit.

Hamilton and other judgesnote that defense lawyers usu-ally plead their clients guiltywhen the evidence againstthem is overwhelming.

More than 4,000 defendantspleaded guilty to DWI in WakeCounty during the study peri-od. In Hamilton’s courtroom,nearly 400 DWI suspectspleaded guilty.

“That tells you people arepleading guilty in my court-room when the state has a goodcase,” Hamilton said.

Many of the cases that go totrial have weak evidence andare the ones defense lawyersbelieve they can win, Hamiltonsaid. In accident cases, for in-stance, judges often acquit be-cause prosecutors can’t provethe DWI suspects had beendriving, she said.

“The DA’s policy is to try theDWI cases that can be tried,

When 0.08 isn’t

–––––––DWI from 1A

JEFF SINER – STAFF PHOTO

A driver is led away after being arrested on a Friday night in July at a DWI checkpoint on South Boulevard in Charlotte. Police officers gen-erally arrest suspects after they perform poorly on sobriety tests. Suspects later blow into an Intoxilyzer, which measures alcohol levels.

SEE DWI|NEXT PAGE

Four years after S.C. lawmakers passed what theytouted as a historic drunken driving law, police and prose-cutors are all but ignoring it, preferring to bring chargesunder an older statute.

The reason: The newer law, they say, has no teeth.Lawmakers voted in 2000 to join 48 states with a legal

limit for alcohol in a driver’s system. They set a 0.10 per-cent limit, and last year lowered it to 0.08.

Supporters touted the measure as an “illegal per se” law,which means a blood-alcohol reading above the limitwould be enough for a conviction, as in North Carolina.

But highway safety advocates say lawmakers foisted asham on the public. The legal limit, they say, isn’t a legallimit at all. Besides the alcohol level, the S.C. law lets acourt consider a suspect’s conduct, sobriety tests, and“any other evidence” of a person’s driving ability at thetime of arrest. And the penalties for refusal to be testedare less than the penalties for conviction.

From Jan. 1, 2001, when the per se law went into effect,to July 15, 2004, state troopers wrote 194 tickets chargingdrivers with violating the per se law. During that same pe-riod, troopers wrote 4,411 tickets under the old drunken-driving law, still on the books, which leaves it to jurors todecide whether someone was too drunk to drive. Underthat law, jurors can use a reading of 0.08 or above as an“inference” that the person was impaired.

The primary leader in blocking strict drunken drivinglegislation was Senate President Pro Tem Glenn McCon-nell, R-Charleston, who said supportersof a 0.08 per se standard were “declaringwar on social drinkers.”

He believes per se laws turn the legalsystem on its head. “People have to havethe right to defend themselves,” he said.

Sen. Wes Hayes, R-York, who supportsenacting tougher drunken-driving laws,said two factors pose a challenge. “Therules of the Senate make it fairly easy toblock changing the law,” he said. “And we’ve got a strongstrain of libertarian thinking that’s against big governmenttelling people what to do.” — HENRY EICHEL

Newer law all but being ignoredSOUTH CAROLINA

McConnell

“A person commits the offense of impaired driving if hedrives any vehicle upon any highway, any street or anypublic vehicular area within this State:

(1) while under the influence of an impairing substance;or

(2) after having consumed sufficient alcohol that hehas, at any relevant time after the driving, an alcohol con-centration of 0.08 or more.”— SOURCE: N.C. GENERAL STATUTES

The law: 0.08 is over the limit

10% - 25%10% Lowes

Highest

26% - 50%

51% - 70%

71% - 85%

86% - 97%

Disparity in Conviction Rates

Percenntage found guilty ehead Cityeh

DWI conviction rates among North CarolinaDWI conviction rates among North Carolina’s 39s 39judicial districts vary widely when suspects go to trial icts vary widely whafter testing over the legal alcohol limit over the legal alcoh – 0.08 or above.

Trial convictionnvictionrates from January2002 throughFebruary 2004, for suspects above legal limit:

OURCE: Observer nalysis of state DWI data

STAFF GRAPHIC

NORTH CAROLINA

TODAY| N.C. judges are acquitting more than a third ofdrunken driving suspects who test above the state’s legalalcohol limit and contest the charges in court.

State law says drivers commit DWI if their alcohol con-centration is 0.08 percent or higher. But many judges rou-tinely acquit defendants with levels of 0.08 or 0.09.

Judges differ dramatically in how often they convictand how much evidence they require. Conviction ratesfluctuate widely from county to county.

MONDAY| In Mecklenburg County, DWI convictionrates vary dramatically among the county’s judges, fromover 80 percent to as low as 40 percent.

TUESDAY| Some drunken driving suspects have discov-ered a strategy to improve their chances of avoiding con-viction.

Looking at why, how of acquittals