Special program for drunken drivers in Monroe County raises questions
(September 23, 2007) — Two prominent Rochester men with prior drunken driving convictions were arrested this summer on new charges of driving while intoxicated.
One will likely face felony charges. The other could get a misdemeanor — if he attends the required treatment.
Why did one man get a break and the other not? It's all about location.
The cases show how the punishment for DWI may well be determined not by the crimes a driver is accused of committing, but rather by where he or she is arrested.
Orest Hrywnak, owner of the Rochester RazorSharks basketball team, was arrested this month; he has a previous DWI conviction. Rochester City Councilman John Lightfoot was arrested in July; he has two previous DWI convictions — including one in which police alleged he punched and shoved an officer.
But because Hrywnak was driving in Wayne County, and Lightfoot in Monroe Country, Lightfoot may end up with a misdemeanor conviction.
A felony conviction — like the one Hrywnak faces — would cost Lightfoot his City Council seat.
In Monroe County, some drunken drivers are offered a chance to reduce a felony arrest charge to a misdemeanor if they complete an extensive treatment program, called Pre-trial Felony DWI Diversion. Elsewhere in the region, prosecutors don't offer the same opportunity.
District attorneys of other counties across the region say they prefer to secure the felony conviction for a person who has committed two drunken driving infractions and then allow treatment to be handled through probation.
"If people are repeat DWI offenders, they pose a danger to the community," said Ontario County District Attorney Michael Tantillo.
When Hrywnak's lawyer asked about the possibility of a diversion program similar to Monroe County's, Wayne County District Attorney Richard Healy said: "My answer was, 'We don't do diversion.'"
"Frankly, I don't think a misdemeanor is stiff enough for a second DWI," he said.
Monroe County's 28-year-old diversion program, according to its own internal research, has been successful. The re-arrest rate within three years of defendants completing the program is less than 10 percent — which is significantly better than the rate for those who drop out of the program and for those who undergo the standard prosecution process.
Studies from throughout the country have shown that more than a third of drunken drivers are typically re-arrested, and some research has shown recidivism rates as high as 75 percent.
Hrywnak's lawyer, Norman Palmiere, said the diversion program in Monroe County is a good option for defendants — and still bolsters public safety — because "it gives (an alcohol-dependent individual) a chance to reflect and get help."
Some defense lawyers, who typically support the program, say its faults can lie in the decision about who is allowed to participate.
Heather Parker, a former Monroe County assistant district attorney now in private practice with the Fiandach & Fiandach firm, said she was irked when she saw news that Lightfoot was allowed into pretrial diversion, not because she didn't think he was deserving, but because she represents defendants — including a teacher who may lose his job with a felony conviction — whom she considers equally suitable.
"I'm not questioning the District Attorney's Office's right to prosecute a case any way they see fit," said Parker. "What I'm questioning is how do you explain if you put two (similar) cases side by side, and you offer it for one but not another?"
Monroe County District Attorney Michael Green said he sees no evidence that his office is being too rigid in determining who's eligible for pretrial diversion. "The numbers I'm looking at just don't bear that out," he said.
In 2006, for instance, more than one out of five people arrested on felony drunken driving charges in Monroe County were allowed into the diversion program — the highest rate of diversion since 1998, statistics show.
Two case studies
In New York state, a person is charged with felony drunken driving if he or she has been convicted of misdemeanor DWI within the past decade. Hrywnak's previous DWI was in 2001. This month, he was arrested in Sodus, Wayne County, on charges of drunken driving and speeding. His blood-alcohol content was 0.16 percent — twice the legal limit — and he was driving 71 mph in a 55 mph zone, sheriff's deputies allege.
For this charge, he will face a felony that could lead to probation or jail time and could limit future job opportunities.
When arrested in the city in July, Lightfoot was cited for having an open container, speeding and following too closely. He was involved in a minor two-car collision.
Lightfoot's earlier arrests occurred nine years ago. He referring comment to his lawyer, Thomas DeSimon, but did say he has entered diversion and it's going well.
In 1998, Lightfoot was twice convicted of misdemeanor drunken driving.
In the first incident, in April, he was initially arrested on an assault charge after being pulled over for driving in the city without headlights about 1:15 a.m., records show.
According to the police report, Lightfoot staggered out of the car, his speech slurred. He refused a sobriety test, then punched the officer in the face and shoved him.
"Furthermore (Lightfoot) did put his arms and legs around a pole and refuse to let go," the report states.
Records show Lightfoot was ultimately convicted of misdemeanor DWI, and not assault, on the city arrest.
Three months later, Lightfoot was stopped by a Monroe County Sheriff's deputy in Gates for driving 72 mph in a 55-mph zone, records show. He agreed to a sobriety test and recorded a blood-alcohol content level of 0.14 percent. The legal limit then was 0.10 percent; it has since been reduced to 0.08 percent.
Lightfoot was convicted of misdemeanor DWI in Gates, court records show.
Green said he was aware of the "facts and circumstances" of Lightfoot's prior convictions when he agreed that Lightfoot was suitable for the felony diversion program. Typically, the drunken driving bureau of the prosecutor's office decides who is eligible, and Green will sometimes review the decisions.
Green said he told his prosecutors that they should weigh the case like any other. Green said he could have decided Lightfoot wasn't eligible, thereby heading off possible criticism that he was favoring a fellow Democrat. But instead, Green said, his office decided the case on its merits.
To date, Green, who is running for re-election, has not been publicly criticized for the choice to allow Lightfoot into the diversion program.
Crucial to the decision, prosecutors say, were these factors: Lightfoot acknowledged after the July arrest that he has a drinking problem; his arrests were nine years apart; his 0.14 percent blood-alcohol content was lower than that of many defendants; and although he was involved in a collision when arrested, no one was injured.
Local lawyer Edward Fiandach, who specializes in drunken driving cases, said he recently wrote Green's office about a number of defendants he represented whom he thought suitable for pretrial diversion but weren't allowed the opportunity by prosecutors.
"They've become very circumspect about who they want to offer it to," Fiandach said.
Typically, Fiandach said, prosecutors have not agreed to pretrial diversion if there has been an accident. But he also challenged the premise that defendants whose two arrests occur over a short period of time shouldn't be eligible.
Those people are also clearly in need of treatment, Fiandach said, adding that prosecutors "don't seem to understand why the program exists."
Green said he must balance public safety with the individual's need for treatment. A defendant whose arrests occur over a few years may be a more dire threat to the public, he said, and will likely get treatment while on probation or in prison.
"Almost every single person who comes in here with a felony DWI needs treatment," Green said. But typically, only 15 percent to 20 percent of those arrested on felony charges in the county are offered the program.
Reward and punishment
Though in existence for nearly three decades, the Monroe County felony diversion program has received little publicity, unlike a comparable local program, Drug Treatment Court, that first started in Rochester in 1995. Both programs operate under similar tenets: Law enforcement can effectively coerce defendants into needed treatment with the promise of a reward.
The pretrial diversion program, one of a few of its kind in the state, was created in 1980 after judges and prosecutors became concerned about the re-arrest rate for criminals. What sets the program apart is its agreement to delay prosecution until after treatment.
The program operates under the auspices of the Monroe County Bar Association but is funded by county revenue, fines from drunken driving convictions and the $200 fee that each participant must pay, according to Barbara Darbey, executive director of the Pre-Trial Services Corp., which oversees the program.
A defendant is screened to determine the severity of the drinking problem, then matched with the appropriate treatment program in the community, Darbey said.
The typical defendant is an employed male in his 30s who lives in the suburbs, she said.
In the past decade, the success rate — those who start and complete the program — typically was greater than 80 percent. Darbey said she has studied the re-arrest rate several times, and has found less than 10 percent of those who completed the program were re-arrested within three years, a commonly used time frame for a study of recidivism rates.
Conversely, she said, 15 percent to 18 percent of those who dropped or failed out of the program, which again subjects a defendant to felony prosecution, were re-arrested within three years. Defendants entering the program must surrender their driver's license; those who drink and drive, or are not vigilant about attending treatment, can be booted out.
Alcohol-dependent individuals typically are required to attend group treatment sessions three to five times a week and individual sessions every other week, said Robert Lebman, the executive director at Huther-Doyle, one of the treatment facilities used by the diversion program.
Darbey is not involved in selecting the defendants who are offered the diversion program. As head of the office since 1985, she has worked with different prosecutors from the drunken driving bureau.
"It's a judgment," Darbey said of defendants allowed to participate in diversion. "But what I don't see is a great variance. What I've seen is that the model itself, which is what the district attorney buys into, is consistent."
David Hanson, a professor emeritus at the State University College at Potsdam and an expert on drunken driving enforcement, said more localities nationwide are creating specialized courts to ensure people arrested for drunken driving get treatment. Most of those courts are seeing re-arrest rates of less than 10 percent, he said, similar to the findings of the Monroe County diversion program.
Encouraged by federal highway safety officials, "these courts are really spreading widely across the country," he said.
Green said the diversion program has such a long history because of its effectiveness. The threat of a felony conviction, which can cost some people a job and could, by law, cost Lightfoot a seat on City Council, is key to the diversion program, the district attorney said.
"All of a sudden we have a lot of leverage ... to get them into treatment," he said.
And the threat of felony prosecution if they fail the program is incentive for defendants to attend the treatment mandated by the program, he said.
DeSimon, Lightfoot's lawyer, said he has represented "a number of clients who've been in the program before and it turned out to be quite successful."
"The best part of the program is it's got a carrot and a stick," he said.
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