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Hard to convict

| Tuesday, July 31, 2007

In the days after her son was killed by a drunk driver, Rosellen Moller said she was warned by then-Butler County District Attorney Tim McCune that the woman responsible might avoid jail time.

Jennifer Langston, 30, of Winfield, Butler County eventually received a one-month jail term for the head-on collision in June 2002 that killed Glenn Clark, of Saxonburg. Clark's wife, Annette, delivered their son by Caesarian section and was in a coma for five years before she died in June, closing a chapter in Moller's life that still leaves her shaken.

"We knew we were getting nowhere (with McCune)," Moller said recently, her voice trembling. "And they wonder why there are so many drunk drivers. They don't do anything to them."

State law calls for a three-year mandatory minimum jail sentence for drivers convicted of homicide by vehicle while driving under the influence. But some critics argue the law carries too high a burden for prosecutors, enabling drunk drivers to get off with lesser sentences.

It's not enough to prove someone was drinking and caused a fatal accident, said Mark Bergstrom, director of the state Commission on Sentencing. Prosecutors must show that the alcohol caused driving that led to the death.

"There are many instances where (people) are convicted of DUI and separately of homicide, but prosecutors can't prove that the homicide was because of the DUI," Bergstrom said.

Two recent cases have shined a spotlight again on drunk-driving fatalities.

* Brian Stone, 32, of Cheat Lake, W.Va., is accused of killing five people and injuring seven others in a crash earlier this month on Interstate 68 near Morgantown. Authorities said Stone was driving drunk.

* Moon Jong Kim, 20, of Shadyside, is accused of driving drunk and causing an accident in East Liberty that killed a South Side woman in November. He is charged with homicide by vehicle while driving under the influence, among other offenses.

According to the National Highway Transportation Safety Administration, more than 1,600 people died in alcohol-related crashes in Pennsylvania in 2005. That was up from 1,490 deaths in 2004 and 1,577 deaths in 2003.

Thirty-five percent of the fatalities in the 2005 crashes involved blood-alcohol contents of .08 or more, according to NHTSA.

The state Commission on Sentencing does not track how many people each year are charged with homicide by vehicle while driving under the influence.

But Mothers Against Drunk Driving reported that 1.4 million Americans -- 1 in 135 licensed drivers -- were arrested for DUI in 2003.

"It's the most commonly committed crime," said Mavis Nimoh, MADD Pennsylvania's victim services manager. "Every half hour someone dies from a DUI crash."

Often, defendants and district attorneys reach plea bargains in those cases, sparing victims' families a trial but also allowing defendants to get off with lesser sentences.

Langston, for one, came to a plea agreement with McCune's office. McCune did not return phone messages seeking comment for this story.

The problem, said Dan Fitzsimmons, chief trial deputy in the Allegheny County District Attorney's office, is proving that drinking caused the accident, which caused the death. Factors such as road conditions, weather, time of day and improper road signs can work against prosecutors.

"Could a sober person acting unknowingly or recklessly caused the same accident?" Fitzsimmons said.

If the answer is yes, the chances of successfully prosecuting a case are small.

"That's the difficulty in those cases, having the ability to prove that causal connection between that impaired driving and the accident," Fitzsimmons said. "It's often the subject of opinion."

The burden of proof can be too much at times.

"The commonwealth has to prove beyond a reasonable doubt all the facts in a case," said George Heym, who was an Allegheny County assistant district attorney for seven years before starting his own practice as a DUI defense attorney two years ago. "If the accident was the victim's fault, even though the person was driving under influence, it's not homicide by vehicle while driving under the influence."

In some cases, said DUI attorney Michael Steven Sherman, charges shouldn't have been filed.

"A lot of these cases are simply accidents," said Sherman, who defended Langston. "You not only have to prove the person was drinking, you have to prove the death was a result of the person being drunk, not just the result of an accident. Say it was a snow-covered road and someone slid. Would they have slid anyway?"

Every case is different, and changing one element of a case, one fact, can change the outcome, said Mary-Jo Mullen, executive director of the state's District Attorney's Association.

"Know what happened and proving what happened can be two different things," Mullen said.

The state's Mothers Against Drunk Driving chapter supports the mandatory minimum jail term and believes the penalties could be tougher, Nimoh said.

"Most of the time our victims would like to see these things go to trial and have the offender have his day in court," she said. "There's a lot of work being done beforehand to get a plea agreement."

Nimoh also blamed a perception of tolerance for drinking and driving among the public.

"A lot of Americans know someone who has had a DUI or drinking problem," she said. "The problem is there, and people can be very sympathetic to it."

Tried -- not convicted

The following people are among those in recent years who were charged with -- but not convicted of -- homicide by vehicle while driving under the influence. The offense carries a mandatory sentence of three to 10 years in prison.

* Jennifer Langston , 30, of Winfield, Butler County, pleaded guilty to vehicular homicide and reckless endangerment in connection with a June 2002 accident that killed Glenn Clark, of Saxonburg, and left his wife, Annette, in a coma for five years. Langston, whose blood-alcohol content was 0.11 percent when she was tested almost two hours after the crash, was ordered to serve a one-month sentence and six months' house arrest. Prosecutors dropped the most serious charge, vehicular homicide while drunk driving.

* Christopher A. Meyokovich , 24, of Smithfield, Fayette County, pleaded guilty to vehicular homicide and driving under the influence for the April 2005 rollover-crash-related death of Jessica Lyn Rankin, 23, of Fairchance. Meyokovich avoided the more serious crime of homicide by vehicle while DUI and was sentenced Friday to two to four years in state prison.

* Kimberly Ann Herbert , 27, of West Deer, pleaded guilty in March to vehicular homicide and other charges in connection with an accident that killed a Cheswick man in June 2005. Prosecutors withdrew a charge of vehicular homicide while driving under the influence. Herbert was accused of colliding with motorcyclist Thomas Lovic, 36. Herbert's sentence was unknown.

* Bruce Stanko , 53, of Hampton, was acquitted by a Butler County jury of homicide by vehicle while driving under the influence but convicted of drunken driving in an accident that killed Linda Jenkins, 28, of Butler, in January 2005. Stanko was sentenced in September to one to five years in jail. State police said Stanko had a blood-alcohol level of 0.21 percent.

* Darnell L. Wade , 22, of New Kensington, Westmoreland County, pleaded guilty to vehicular homicide and other charges in exchange for prosecutors dropping a charge of vehicular homicide while drunk driving. Wade was accused of causing a wreck in April 2005 that killed passenger Andrew Freeman, 21, of Arnold, Westmoreland County. He was sentenced in July 2006 to 11[1/2]-23 months in jail.

* James D. Schiavone , 43, of Irwin, Westmoreland County, was convicted of two counts of vehicular homicide, one count of drunken driving and a traffic violation in connection with a collision in Hempfield Township that killed a Greensburg couple. Schiavone, who had a blood-alcohol content of 0.11 percent about two hours after the crash in March 2004, was acquitted of the two most serious charges -- two counts of homicide by vehicle while driving under the influence. He is serving up to five years in jail.

* Isaac Franz , 26, of Harmony, Butler County, reached a plea agreement in March 2006 and was sentenced to state prison for vehicular homicide and drunken driving in connection with a September 2005 accident that killed motorcyclist Forrest R. Edmond, 58, of Beaver Falls, Beaver County. He is to serve no fewer than 30 months, but no more than 102 months, in prison, according to the Butler County Clerk of Courts office.

By the numbers: Driving under the influence
  • 116 million alcohol-impaired driving trips by Americans in 1997.
  • 159 million alcohol-impaired driving trips by Americans in 2002.
  • 3 in 10 Americans will be involved in an alcohol-related crash in their lifetime.
  • 1.4 million drivers were arrested in 2003 for DUI. That's 1 of 135 licensed drivers in the U.S.
  • 1,616 traffic deaths in Pennsylvania in 2005.
  • 636 alcohol-related traffic deaths in the state in 2005.
Source: Mothers Against Drunk Driving

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