Trial Illustrates D.W.I.-Test Glitch

A Greenwich Village man who was arrested on a misdemeanor driving while intoxicated charge in Montauk during the July Fourth weekend walked away from East Hampton Town Justice Court on Jan. 15 with a jury having convicted him of a reduced charge of driving with ability impaired, a violation. It was the third time he had been arrested on the same charges, and he had obtained the same result the other times.

The three-day trial of Christopher George, 32, illustrated the difficulty of prosecuting defendants on drunken driving charges if they refused to take a breath test at police headquarters. His attorney was Colin Astarita.

Mr. George had been convicted in 2003, and again in 2006, on D.W.A.I. charges. From court records, it appears that in the first case he had submitted to the breath test and the drunken driving charge was plea-bargained down.

In the second instance, however, like the third, with Mr. George represented both times by Mr. Astarita, the record shows that he refused to take the field breath test and the breath test at police headquarters. Mr. George’s 2006 case also went to trial and resulted in a conviction for violations rather than a misdemeanor. Those in the legal profession interviewed for this story said such a verdict is common in trials involving alleged drunken driving where there is no chemical reading.

Suffolk County District Attorney Thomas Spota has placed strong emphasis on enforcement of drunken driving laws, with organized drives, including STOP D.W.I., which allows local departments to bring in officers from other jurisdictions on so-called sweeps. The program is self-sustaining, funded exclusively by fines and fees collected as the result of D.W.I. convictions.

Mr. George was arrested early Sunday, July 6, by a Southampton Town officer during one of those sweeps in East Hampton. Five others also were arrested that day. The officer, Keith Phillips, was in downtown Montauk, north of the plaza, when Mr. George, driving south on Edgemere Street, failed to signal for a turn.

He failed field sobriety tests and refused to take the roadside breath test. He also refused to take the Intoxilyzer 9000 breath test at town police headquarters.

 Mr. George’s attorney is a former Suffolk County prosecutor who was in the county’s special crimes division before going into private practice. He has handled thousands of criminal cases, both as a prosecutor and for the defense.

 “To be successful,” his website states, “an attorney must be completely aware of the environment in which they are working. It is my experience and knowledge of how these courts function that give my clients an advantage in mounting a successful defense for any given case.”

 Attorneys at Mr. Astarita’s level cost anywhere from $5,000 to $10,000 to handle a D.W.I. case that does not go to trial, with various factors affecting the ultimate cost. The price of a case that goes to trial can easily double those amounts.

The prosecutor at Mr. George’s trial was  Adriana Mora, a recent graduate of St. John’s University School of Law who has been assigned to East Hampton Town Justice Court about six months ago. She had been the prosecuting attorney in three previous trials in county court, and  obtained guilty verdicts in two of them.

“You literally are thrown into the fire. You have to think on your feet. There is no better training,” Melissa Aguanno said last week. Ms. Aguanno was an assistant attorney in the D.A.’s office for three years, prosecuting cases in East Hampton and Southampton Town Justice Courts. She said young, inexperienced assistant district attorneys are assigned to prosecute misdemeanor cases in local courts. Those who prove themselves at that level are eventually promoted to handle felony cases in county court.

The double-edged sword is that attorneys who act as prosecutors in local courts are at the same time in training as future defense attorneys.

Ms. Aguanno said she had made a difficult decision to leave the D.A.’s office after weighing her love for the work there versus her family’s financial needs. She is now associated with Edward Burke Jr. and Associates, a Sag Harbor firm.

As a prosecutor, she had obtained a guilty verdict in East Hampton in a case where the defendant had refused the breath test, and, in her first trial as a defense attorney, garnered a not-guilty verdict in the same court for a client who also had refused to take the breath test. In her opinion, the balance of power is clearly on the side of the defendant in such cases. “I think it would be almost impossible to get a guilty verdict if a defendant made no statement,” she said.

The record in Mr. George’s case shows that he gave police only measured and brief statements. Officer Phillips told the jury that he had asked Mr. George three times if he would consent to the breath test at headquarters and that Mr. George said, “I’m not going to say yes, and I’m not going to say no” three times.

Another factor skewing the balance in the defendant’s favor is the state manual covering arrests on drunken driving charges. According to one East Hampton Town officer, who spoke with the understanding that he would not be identified, the complexity of the National Highway Traffic Safety D.W.I. Detection manual, about 500 pages long, is a problem.

“You get an attorney making $15,000,” he said. “He opens the book to page 445, points to the second paragraph, and says, ‘Aha. You missed this.’ ”

Mr. Astarita may not have had an “Aha” moment during the trial, but he attacked the process at every step, planting enough doubt in the minds of the jurors that they could not convict. The trial down into three afternoon sessions, a factor Mr. Astorita used to his client’s advantage.

Officer Phillips initially testified on Jan. 14. During cross-examination, Mr. Astarita delayed the proceedings. He first demanded an original copy of a document placed into evidence, which the Police Department was asked to produce. Then he asked to see the officer’s memo pad from the day of the arrest. Officer Phillips did not have it with him, and Justice Stephen Tekulsky ruled that the officer would have to return with it the next day.

When the cross-examination resumed on Jan. 15, however, Mr. Astarita did not ask for the pad. Instead, using the transcript of the preceding day’s testimony, which he had received from the court stenographer, he pressed on what he saw as inconsistencies in the officer’s testimony.

The officer was the only witness called by Ms. Mora. After he finished testifying, Mr. Astarita called Mr. George, his only witness.

Mr. George told the jury he had refused to take the breath test because he was a diabetic on insulin. “In my mind, they were asking me to take a chemical test. I said, ‘I’m happy to take the test, but I am afraid.’ ”

When it came time for Ms. Mora to cross-examine the defendant, the two attorneys and Justice Tekulsky huddled. After their conference, it was clear that Justice Tekulsky had decided that Mr. George’s previous arrests could not be brought up during cross-examination. His ruling was based on a 1974 decision from the New York State Court of Appeals (New York v Sandoval). In order not to prejudice a jury, evidence should only be admitted, the Court of Appeals held, “if it will have material probative value on the issue of defendant’s credibility, veracity, or honesty on the witness stand.”

In the end, the jurors decided that the prosecution had not met its burden of proof on the D.W.I. charge, convicting him of the lesser charge of driving while ability impaired as well as failing to signal a turn, and refusing to take a breath test in the field.

“We agreed pretty quick that he wasn’t intoxicated,” said Dan Murphy, one of the three men and three women on the panel, after the trial was over. Mr. Murphy, who is from Montauk, was asked if knowing Mr. George had been arrested twice before on the same charge would have changed his perception of the case. “Probably not,” he said. “In the sense that this was pretty cut and dried.”

Mr. George will be sentenced at a future date.