Stories written by Jo Ciavaglia, award-winning multimedia newspaper reporter at the Bucks County Courier Times in Bucks County, a suburb of Philadelphia, Pa.
For more information about Jo, check out her Linked-in profile, as well as her Facebook fan page, Instagram and Google+
Monday, June 2, 2014
Not every DUI death results in homicide charges
Posted: Sunday, June 1, 2014
Sarah Hughes knows the difference between right, wrong and illegal.
The Falls woman understands that her son and his friends were wrong to ride their bikes in a construction zone along four-lane Route 13 one Sunday afternoon five months ago.
She also understands that it was illegal for 60-year-old Brian Patterson to be driving allegedly under the influence of prescription and illegal drugs on the same highway that same day.
What she cannot grasp is how Patterson is not being held criminally responsible for striking and seriously injuring her 14-year-old child and killing his 15-year-old friend.
While the Bristol resident faces a preliminary hearing June 10 on charges of driving under the influence, possession of drug paraphernalia and a possession controlled substance in the Jan. 19 accident in Tullytown, he isn’t charged with homicide by vehicle while under the influence or even aggravated assault while DUI.
“They’re children and they made a mistake,” Hughes said. “You’re an adult and you broke the law.”
Driving while impaired is against the law, yet might not result in criminal charges against the driver when someone is injured or killed in an accident, according to several defense attorneys, including former prosecutors.
Charges of homicide by vehicle while DUI or aggravated assault while DUI require that prosecutors prove that the driver’s intoxication alone caused the accident, attorneys said.
But one anti-drunken-driving advocate countered that driver impairment alone should be enough to prosecute the more serious charge of homicide by vehicle while under the influence.
Former Bucks County prosecutor Colin Jenei, now a New Hope defense attorney, says that he made the decision not to press homicide by vehicle while DUI charges about a dozen times during his time in the DA’s office.
“It was always a difficult decision in my opinion,” he said. “They are truly tragic cases.”
One of those fatal accidents involved a woman who was driving home from a party during which she had been drinking. Her blood alcohol level was around Pennsylvania’s legal limit of .08 when she struck and killed a man whom she claimed jumped in front of her car, Jenei said.
The subsequent accident investigation found the man who was killed had a blood alcohol level three times above the legal limit. He also told friends that he was depressed and wanted to commit suicide by jumping in front of a car, Jenei said. The man was hiding in a bush and leaped into the road as the woman drove past, he said.
“To have charged that lady with homicide would be entirely incorrect,” Jenei said, adding that she was charged with DUI.
THE FAULT FACTOR
Bucks County defense attorney Richard Fink recalled a decade-old case in which a lawyer was charged with homicide by vehicle while DUI after he was involved in an accident that killed another lawyer in his firm who was a passenger in his car. The accused man was intoxicated and speeding when the fatal accident happened.
A jury found the lawyer not guilty of homicide by vehicle while DUI, but guilty of homicide by vehicle. The jury decided that the driver’s speed — not his intoxication — was responsible for the death, Fink said.
“You can be drunk driving your car, and there can be a death that is not attributed to you being drunk,” Fink added. “My experience, the family is never going to believe the drunk driver wasn’t at fault.”
The requirement that prosecutors prove that a driver’s impairment resulted in a fatal or serious accident stems from a fatal DUI case 20 years ago in Philadelphia, Jenei said.
The case involved a man who double-parked on a one-way street and ran into a store. While the man’s wife waited for him in the front passenger seat, another driver, who was three times above the legal limit for driving and was speeding the wrong way down the street, hit the car and killed the wife.
While the husband’s actions — double parking — were clearly illegal, the court determined the other driver’s intoxication was directly and substantially responsible for the accident, and he was charged and convicted of homicide by vehicle while DUI, Jenei said.
In the Jan. 19 Tullytown fatal accident, Zachary Gonzalez suffered significant head trauma and was pronounced dead at the scene. Hughes’ son, Jeffrey Garvie, was hospitalized for two days with a head injury, broken shoulder and a bruised lung, according to Hughes.
After striking the boys, Patterson stopped his car and cooperated with police, according to court documents. Patterson showed signs of impairment and police allegedly found an empty pill bottle that was prescribed to someone else. Patterson allegedly told police his “perc 10s” were kept in the bottle, referring to the prescription opiate painkiller Percocet.
Police executed a search warrant on his car and found “multiple pills” and five pipe-like items, according to the affidavit in the case. A lab analysis of the items found cocaine residue on the pipe and the pills tested positive for oxycodone and zolpidem, a prescription sedative. Blood test results determined that Patterson had diazepam, nordiazepam, cocaine and benzoylecgonine in his system at the time of the accident, according to the affidavit.
If convicted of driving under the influence, Patterson faces jail time of a mandatory three days or up to a year for each of the drug charges. A homicide by vehicle charge carries a mandatory three-year prison sentence.
Patterson’s defense attorney, Ron Elgart, said it’s his understanding that there were eyewitnesses to the accident, and a “very thorough” investigation.
“If he didn’t cause the accident, he should not be charged,” Elgart added. “(Not being charged with a homicide by vehicle while DUI) is a rarity because in a lot of the cases the person under the influence is at fault.”
The Tullytown police accident report contains few details about the accident and no witness accounts.
A narrative portion of the report describes the accident as occurring when Zachary and Jeffrey were attempting to cross Route 13 southbound and were struck by Patterson’s vehicle. The report also indicates that Patterson showed “no avoidance maneuver,” and that both boys were on the shoulder of the road.
“This accident is currently under investigation and this report will be updated as needed,” according to a copy of the report.
According to Patterson’s criminal complaint, the Bucks County District Attorney’s Homicide by Vehicle Task Force conducted an extensive reconstruction and did not find Patterson at fault for the accident, specifically citing “no chargeable violations (were) found in relation to crash causation.”
Bucks County Assistant District Attorney Matt Hoover, who is prosecuting Patterson, declined to provide any additional traffic reports involving the case. “As it is a pending prosecution no reports are publicly available at this time,” Hoover said in an email.
Zachary’s aunt and legal guardian, Kelli Donlen, said she was told by police that Patterson did not have enough time to stop before he struck Zachary and Jeffrey. But Hughes said that other drivers managed to stop before hitting the boys.
Hughes also pointed out that Patterson is charged with three counts of DUI, which she says suggests that police believe his ability to drive was hindered because he was under the influence.
“Isn’t that enough evidence,” she added.
It’s enough for Frank Harris, a government affairs representative for Mothers Against Drunk Driving.
“This is very unusual,” he said. “If the defendant was impaired, it should be enough to prosecute.”
But Harris added that Pennsylvania’s drunken driving laws tend to benefit defendants. He added that prosecuting someone for injuring or killing someone while driving impaired can be difficult, citing the controversial legal case last year in which a juvenile court judge sentenced a wealthy Texas teenager to probation in a drunken driving accident that killed four people and injured two others.
Harris added he doesn’t believe there is merit to the argument that a driver’s impairment may not have caused an accident.
“This is a slap in the face for victims,” he said. “You are either impaired or you aren’t. If you test positive for cocaine and other drugs, you must be impaired.”