Bucks County lawmaker's bill would close "loophole" in DUI law

Posted: Sunday, May 17, 2015

As far as Kelli Donlen is concerned, the impaired driver who struck and killed her 15-year-old nephew last year was responsible for his death, though a police investigation determined the driver, while intoxicated, was not at fault.

Now a Bucks County legislator has proposed a bill that would increase penalties against impaired drivers who cause serious injury and death even when intoxication is determined not to be related to the accident, closing what the lawmaker calls a loophole in state law.

One veteran Lower Bucks criminal defense attorney, though, called the legislation “clearly from outer space.”

Last month state Rep. John Galloway, D-140, introduced House Bill 1076 that would make it a second-degree misdemeanor for driving under the influence where driver impairment is not the direct cause of a person’s death or injury. The bill, now in the judiciary committee, establishes a maximum fine of $2,500 if the accident resulted in serious injury and $5,000 if there was a death, but no jail time.

Zachary Gonzalez

“This is a huge loophole in our DUI rules,” Galloway said in a House memorandum about his bill. “By creating these new penalties, we can ensure that this technicality will not allow future offenders of similar tragedies to avoid justice.”

The inspiration for the bill was a January 2014 accident that killed 15-year-old Zachary Gonzalez, a Pennsbury High School freshman, and seriously injured 14-year-old Jeffrey Garvie. The boys were riding bikes with friends across U.S. Route 13 near Mill Creek Road in Falls when they were struck.

The driver, Brian Patterson, 61, of Bristol, was charged with driving under the influence, possession of drug paraphernalia, and possession of a controlled substance. A crash reconstruction investigation found Patterson, while under the influence of cocaine and prescription pain pills, had done all he could to avoid the accident, and his intoxication played no direct role.

Patterson pleaded guilty last August and was sentenced for the DUI and possession of a controlled substance to one to six months in Bucks County prison; he was released in September after serving one month, according to court records.

Under current state law, driving while impaired alone is not enough to merit either homicide or aggravated assault by vehicle while under the influence charges. Those offenses require prosecutors prove the driver’s intoxication alone was a direct cause of the accident.

Galloway said his 2011 DUI conviction related to a traffic stop and subsequent volunteer efforts with anti-drunken driving groups have made him more sensitive to the issue.

“What happened to me is always at the back of my mind. I try to make up for it in the ways I can,” he said. “After seeing the effects of drunk driving and the horrific stories of people’s lives torn apart by drunk drivers, I am acutely aware of the dangers.”

Galloway acknowledged drafting legislation to address this gray area of the law was difficult, but he calls his bill a “fair compromise” he believes would be upheld by the courts, if signed into law. He added his intention was to create a monetary penalty and establish criminal accountability that could help with civil litigation in such cases.

“If he was not driving under the controlled substances, logic tells you there is probably something he could have done. To say he didn’t have anything to do with the accident, that is hard to believe,” Galloway said. “We do know, (impaired drivers) shouldn’t have been doing it in the first place, and we do know someone is dead. My legislation is to link the two.”

Bucks County First Deputy District Attorney Robert James, who oversees many DUI prosecutions, suspects there could be an issue with enacting a law that does not require proof of causation, specifically that the intoxication led to the driving behavior that resulted in injury or death.

“Removing causation could be problematic if challenged in court,” he said.

Falls defense attorney Ron Elgart, who represented Patterson, countered that law must be based on facts, not emotions. He said Galloway’s bill attempts to punish someone for behavior that cannot be proven to have resulted in a crime.

“This is about blind retribution with no basis in fact,” Elgart added. “One has to wonder if we are going to charge people for driving while ugly in the future because that makes about as much sense as this bill.”

To Donlen, who raised Zack after his widowed mother’s sudden death when he was 9, said the bill is a sensible starting point. She has contacted local Mothers Against Drunk Driving chapters and local state lawmakers to rally their support for the bill.

“It is what needs to be done. At this point these adults are getting away with murder. Nobody deserves to die this way,” the Falls resident said. “Our kids are taking the blame for acting like kids, so this is a step in the right direction and I hope it passes.”

Jo Ciavaglia: 215-949-4181; email: jciavaglia@calkins.com; Twitter: @jociavaglia