Poor documentation and fraud found in dwi dismissals

by Jordan Green

The Guilford CountyDistrict Attorney’s office dismisses dozens of driving whileintoxicated charges every year, often because law enforcement officersfail to appear in court to testify against defendants. Conflictingaccounts, shoddy paperwork and one documented case of fraud call intoquestion the reason why many defendants get off. In about 18 casesfiled in 2007 and 2008, prosecutors failed to comply with state law byneglecting to complete a form designed to document the reasons fordismissals. And in one case, an assistant district attorney concludedthat fraud had been committed in changing a defendant’s blood alcoholcontent in an official report so that the prosecutor would have todismiss the charge. “It appears they’re not following thelaw,” said Rep. Verla Insko, a Chapel Hill Democrat who cosponsored the2006 Governor’s DWI Task Force Recommendations bill, which was signedinto law by Gov. Mike Easley, and went into effect that December. Thelaw requires any prosecutor who voluntarily dismisses a DWI charge tosign a detailed written explanation that includes, among other items,the reason why the charge is being dismissed, the driver’s alcoholconcentration, a list prior convictions, what elements of the chargethe prosecutor believes they can prove, what elements they believe theycannot prove, the name and agency of the charging officer and whetherthe officer is available to testify. “Obviously, we intendedthat that be complied with,” said Speaker Joe Hackney, the bill’s mainsponsor, “and it’s disappointing to hear that that might not be thecase.” The law also requires that a copy of the Prosecutor’sExplanation of Dismissal or Reduction, commonly known as the longformdismissal, be sent to the head of the law enforcement agency employingthe charging officer. Representatives of Greensboro police Chief TimBellamy, High Point police Chief Jim Fealy and Guilford County SheriffBJ Barnes said their agencies have never received documentation of anydismissals. An example of the incomplete documentation DWIcharge dismissed for Joseph Bryan Mabe, a 22-year-old Greensbororesident. The long-form dismissal notes that Mabe blew a 0.11 — wellabove the 0.08 blood alcohol content threshold — during a traffic stopconducted by Greensboro police Officer BM Graves, and duly notes thatGraves was not available to testify. The form is unsigned and undated. Internalcourt records indicate the case was dismissed in May 2008. Graves wasterminated from the department several months later, according toinformation provided by the Greensboro Human Resources Department. Theprosecutor’s initials on sleeve of the case file are illegible. “That’smy handwriting,” Assistant District Attorney William S. Reavis sad.“That was my dismissal…. My initials are on the shuck. Myinitials are rather notorious. Judges know them because my handwritingis rather bad.” Reavis initially downplayed the omission, arguing thatthe central purpose of the law is to document the reason for thedismissal. “DAs have big caseloads,” he said. “I makemistakes. Did that mistake circumvent the law? Does the law requirestrict adherence all the time? It’s a little redundant to write whatelements of the charge I can prove when I’ve already said the reasonthe case was dismissed was the officer didn’t appear in court. At whatpoint can we bring common sense into play? My name is on the shuck.Does that not comply with the spirit of the law?” District AttorneyDoug Henderson did not take the opportunity to comment on the findingsof missing and incomplete documentation, leaving it to Reavis and twoother assistant district attorneys to explain the omissions. “Thisshould be a reminder to all DAs that it’s a statutory requirement tofill out dismissal forms,” Reavis ultimately said, after reviewing thedeficiencies uncovered. “And it’s best practice to fill outthe form completely. Take the time to fill it out.” Reavis indicated hewas uncertain of which entity bears responsibility for ensuring thatlaw enforcement agencies receive a copy of the long-form dismissal. “Thisoffice will have to consult with the clerk’s office, and see how thatwill be handled,” he said. “I imagine that will happen.

Idon’t know where the breakdown is. That will require an examination.”Guilford County’s dismissal rate for DWIs is below the state average.Of the 2,899 impaired driving and implied consent cases disposed inGuilford County in Fiscal Year 2007-2008, data kept by the NCAdministrative Office of the Courts indicates that 559 — or 19.3percent — were dismissed. Dismissal rates across the Piedmont Triadrange from a low of 10.6 percent in Rockingham County to a high of 26.6percent in Randolph County.

In the majority of cases thedismissals appear to be legitimate and well documented. For example,charges are typically dismissed when blood reports come back showingthe defendant’s blood alcohol concentration to be below the legalthreshold, the defendant dies before trial, the defendant agrees to aplead to more serious charge such as involuntary manslaughter and thedefendant can show that the officer did not have reasonable suspicionto make the stop. A review of about 100 voluntary dismissals from DWIcharges filed in 2007 found that in 16 cases in whichthe defendants’ blood alcohol content either registered above the legallimit or they refused to submit to a Breathalyzer test, the long-formdismissals were incomplete or missing altogether. The AdministrativeOffice of Courts provided YES! Weekly with case file numbersfor DWI cases dismissed in Guilford County Courts from July 1, 2006through June 30, 2008. Because of time constraints YES! Weekly wasunable to review more recent information from cases dismissed betweenJuly 1, 2008 and June 30, 2009. “I’d wager that a large number of DWIcases were handled by this office,” Reavis said. “You’re talking aboutan office that’s ahead of the curve on DWI dismissals.” Theassistant district attorney added that the Guilford County office’srate for completing required documentation appears to be “pretty good.”Assistant District Attorney Tom Carruthers said that given the demandsof the job the omissions are understandable. “You’re in themiddle of a motion to continue,” he said. “You’re both filling out thelong form and calling the next case. You’re taking ten to twentyseconds to furiously fill it in while the judge is waiting. If youdon’t have a record of convictions in front of you, you don’t have timeto run upstairs and get it.”

Inother cases, prosecutors’ reasons for dismissal were contradicted bythe recollections of charging officers, a dismissal was made because ofdocumented fraud and officers apparently dropped the ball. Thomasvilleresident Daphine Letisha Bluett, 33, refused to take a Breathalyzertest after being stopped by Guilford County Sheriff Deputy EM League inMay 2007. Prosecutor Caroline Pemberton dismissed the case later thatyear, indicating as her reason that League was not present on hisregularly designated court date and the case had already been continuedfour times. League said he does not recall ever beingsubpoenaed or contacted by telephone and called to testify in the case,and court records back up his story. “We didn’t receive anysubpoenas or serve any subpoenas on League,” said Major Tom Sheppard ofthe Guilford County Sheriff’s Office. “I suppose there’s a chance thatthey have been filed, but they’re not in our system, and it would bevery unusual if they had been served and we didn’t have a record ofit.” League said earlier this month that he was surprised to learn thatthe case had been dismissed, having assumed that Bluett had pledguilty. He could think of no reason a representative of the court would not have been able to reach him. “Wecan be contacted very easily,” he said. Pemberton did not return aphone call seeking comment.

EvelioPerez-Perez, 29, of High Point, is recorded as having blown a 0.22 on aBreathalyzer — more than twice the legal limit — during a traffic stopby High Point police Officer CB O’Toole on March 26, 2007. The citationlists three witnesses, but the only subpoenas included in the file arefor Officer O’Toole.  At the time YES! Weekly reviewed the case file, it included no long-form dismissal explaining why the charge was dropped. AssistantChief Derek Stafford, who reviewed the case, said the case wasdismissed almost a year after the stop because civilian witnesses whosetestimony was needed to win a conviction were not subpoenaed by theclerk’s office. A second review of the case by YES! Weekly following Stafford’s investigation revealed a Post-It note attached to the citation stating, “Give to LMH to do long form.” YES! Weekly’s reviewuncovered eight separate DWI charges dismissed by Leah M. Howell fordefendants who either recorded blood alcohol levels higher than thelegal limit or refused to submit to Breathalyzer tests that were notdocumented by a long-form dismissal. “If it turns out it wasnot done, it would be done,” Assistant District Attorney Howard Neumannsaid. “I’ll give her the opportunity to rectify all this.” In one case— that of Miguel Garcia, 23, of Thomasville — the long-form could notbe located during YES! Weekly’s initial review, butmaterialized after the matter was brought to Chief Stafford’sattention. Howell’s statement explains that Garcia’s DWI charge wasdismissed because the defendant was in federal custody awaitingdeportation — an assertion that checks out with records maintained bythe sheriff’s office.

Ina ninth case dismissed by Howell, the long-form dismissal was unsignedand undated, but the sleeve of the case file bears Howell’s initials.Guilford County Deputy JS Shaver stopped 32-year-old Jack William NanceJr. of Thomasville on Jan. 28, 2007 and charged him with DWI anddriving while license revoked. Nance, whose record includes twoprevious DWI convictions in 1992 and 2005, refused to submit to aBreathalyzer test. Howell’s explanation attests that the state “couldnot prove any of the elements, as the charging officer was not presenton his court date, and the state’s motion to continue was denied.” DeputyShaver said in an interview conducted in the presence of Col. RandyPowers and Major Tom Sheppard that he didn’t recall receiving anysubpoenas. The major later reviewed the case and contradicted hisdeputy. “We did receive a subpoena on Sept. 20, 2007,” hesaid. “It was served on Shaver by Officer GL Faust on Oct. 2 andreturned to court on Oct. 3. Officer Shaver has obviously forgottenabout that. He was incorrect when he said he was not served asubpoena.” Confronted with the evidence, Shaver conceded,“Evidently, if Faust served it on me, then it was served on me. Nodispute there.” A phone message from the deputy about an hourlater would only serve to cloud the circumstances of the case further.Shaver said he ran a search on Nance’s driver’s license, and theresults indicated that the defendant was dead.

“I don’t know when hepassed away or exactly what happened to him,” Shaver said. “Obviously,it happened in the city because we don’t have any record of it withinthe county as far as a dead body investigation or anything like that.This guy definitely passed away. I don’t know if he passed away priorto the court date or whatever, but a possibility exists that that mighthave been the situation.” No other evidence of the defendant’sdeath could be found, and some was unearthed suggesting he is, in fact,alive. Prior to the interview with Shaver a woman identifying herselfas Nance’s mother, who was reached by telephone, promised to pass alonga request for an interview to her son. And Marge Howell, acommunication officer with the Division of Motor Vehicles in Raleigh,said Nance’s license shows up as active.

Greensboropolice Officer TL Eastridge noted in court records that in early 2007he observed a vehicle spinning its tires near the intersection ofRandleman and Meadowood roads in south Greensboro, adding that when hecaught up with the vehicle, the driver had red, glassy eyes and reekedof alcohol. According to Eastridge, the driver admitted tohaving drank four beers, and had given the passenger beer to pour out.The driver was 18-year-old Bradley A. Thomas of Greensboro, and herefused to submit to a Breathalyzer test, so Eastridge took him beforeOfficer CE Leonard to have a blood sample drawn for analysis.

OnJune 12, 2007, the State Bureau of Investigation signed off on aLaboratory Report for Thomas, copies of which were provided to the theDistrict Attorney’s office, the office of the Clerk of Court, the NCDepartment of Health and Human Services and the NC Division of MotorVehicles. A copy of the lab report declaring that Thomas’blood alcohol concentration was 0.03 was stamped as received by theclerk’s office on June 18. A second, almost identical form declaringthat Thomas’ blood alcohol concentration was 0.08 was stamped asreceived by the clerk’s office on June 20. Two months later, prosecutorEmily C. Faucher dismissed the charge, stating that there was “noevidence of impairment. Blood was drawn — alcohol concentration 0.03.Defendant refused all tests.” There is no record of Thomasretaining a defense attorney. In late 2008, Assistant District AttorneyHoward Neumann filed a memo for posterity in the case shuck. It states,“The SBI lab report in this file (showing BAC of 0.03) is fraudulent.The true report is in the civil revocation file under this file numberand shows a 0.08.” Neumann later explained, “The SBI got a bloodsample. They analyzed it, sent the report in. Somebody got a copy ofthe report from the clerk’s office, altered it and got the altered copyback in the file.” Neumann’s memo concludes by saying that the SBIconducted an investigation into the matter at his request, and wasunable to determine who altered the report.

No criminal chargeswere filed, and the investigation was closed. “It’s a felony to changeor alter a court document,” said Guilford County Clerk of Court DavidChurchill, who also said he had not been previously aware of theincident. Carruthers added, “People get disbarred, prosecutedand put in prison for that type of thing.” Churchill noted that courtdocuments are public reccords. As such, any member of the public cancome to the counter in the file section, and a clerk will retrieve afile upon request. The clerks get busy and don’t always have time tomonitor every file being reviewed. “Normally speaking, it’s mypolicy to allow assistant DAs and probation officers to go back there,”Churchill said. “They don’t need to stand at the counter because theyknow what they’re looking for.” Private defense attorneys are alsoallowed to go behind the counter because they often talk to clerksabout cases that have been recently closed, but most of the time theydon’t go back to the vault to pull files. Churchill suggestedit would have been difficult to pin down exactly where the file wascorrupted. “It sits on the prosecutor’s desk,” he said. “It might havehappened in the courtroom. Every once in awhile someone mightwalk out with a court file. Most of the time it’s inadvertent. We callthem up, and they bring it back.” Neither the defendant nor thearresting officer could be reached for comment. “I haveabsolutely no knowledge about how that document was forged,” prosecutorEmily C. Faucher said. “I left shoftly after that case was dismissed tobe a stay-at-home mom.” Faucher added, “In my almost three and a halfyears I never saw anybody at the DA’s office that was anything lessthan professional, hardworking and ethical. They were great people and hardworking prosecutors.”

Unlikesome other cases tried by Guilford County prosecutors, AssistantDistrict Attorney Lisa Johnson-Tonkins left only one field out in along-form dismissal for DWI defendant Jerri Michelle Barr, a 22year-oldGreensboro resident. Prosecutors who voluntarily dismiss DWI chargesare required to state what elements of the charge that they believe canbe proved. Johnson-

Tonkinsleft that field blank. Answering the question of which elements of thecharge she believed could not be proved, she wrote, “All elements dueto officer not arriving in court.” Johnson-Tonkins said that“depending on what the answer is” the requirement to respond to bothquestions “can be redundant,” adding, “If you can’t prove any of theelements, you can’t say you could prove any of them in good faith.” Thecase should have been a slam-dunk, but the prosecutor was unable toprove it because of confusion about which officer actually handled thecase. The citation initially recorded Deputy VL Gaddy as the arrestingofficer. Deputy JR Marshall later explained that he made the arrest butrelinquished the paperwork to Gaddy because he was completing a shift. MajorSheppard said the case was calendared for Marshall’s scheduled courtdates twice in a row, but then inexplicably switched back to one ofGaddy’s scheduled court dates. Johnson-Tonkins’ characterizedthe district attorney’s office’s scheduling as “irrelevant.” “We try asan office to accommodate an officer’s schedule,” she said. “When youhave two officers on the citation, we have to schedule it for one oftheir court dates. A subpoena was issued for Deputy Marshall. Theyare bound to honor that subpoena, and he was not in court that day. Thesubpoena trumps the court scheduling.” The citation coupled with asupplemental narrative by Marshall makes a compelling case forconviction. Barr blew a 0.17 on a Breathalyzer, registering at more than twice the legal limit.Marshall’s narrative states that he heard loud, screeching tires from acar traveling in his direction. The screeching stopped abruptly,followed by a bang, and he later noticed a burgundy Isuzu Rodeo. Uponstopping the driver, Marshall noted that Barr had a blackened left eye,which she explained as an injury sustained from playing a golf game onNintendo. He reported that both here eyes were glassy, and her breathreeked of alcohol. Barr reportedly told Marshall that she had drunk two12 .oz cans of Budweiser at a friend’s house before the stop, and sheperformed poorly on a field sobriety test. Marshall acknowledged in aninterview that he received a subpoena, but said he was unable to attendthe trial because it wasn’t scheduled for one of his court dates, andhe was tending to a sick child at home. “I spoke to the DA — it was afemale — on the morning of the court date,” he recalled. “Iasked to get another court date, and they were unable to get anothercontinuance.” Faucher added, “I take DWI cases very seriously. Myposition is, even if I think it’s a close call or we might have somedeficiencies, or something’s arguable, I certainly would rather argueit and let a judge decide. Unless we just don’t have anything, wegenerally will try to proceed with it.” Lt. Robert Elliott of theGuilford County Sheriff’s Office said he believes the prosecutors inthe district attorney’s office genuinely want to obtain convictions inDWI cases to make the streets and roadways safer, but added that thevolume of cases can be overwhelming. “We all want drunkdrivers off the street,” he said. “We’ve seen the carnage that drunkdrivers cause, and we’ve dealt with the family members that have topick up the pieces. And it’s one of the hardest parts of the job,frankly.”