Skip to content
Link copied to clipboard

Despite tougher Pa. DUI laws, many repeat offenders stay on the road

Joseph Lawless was slumped over the wheel of his black Mercedes SUV when the Radnor patrolman rapped hard on the window.

Investigators look over the remains of the March crash on Route 202 that killed Nicole Bereshny-Ott and Yan Zou. Bereshny-Ott had pleaded guilty 15 days earlier to driving under the influence, but her license was not suspended.
Investigators look over the remains of the March crash on Route 202 that killed Nicole Bereshny-Ott and Yan Zou. Bereshny-Ott had pleaded guilty 15 days earlier to driving under the influence, but her license was not suspended.Read moreART GENTILE / The Intelligencer

Joseph Lawless was slumped over the wheel of his black Mercedes SUV when the Radnor patrolman rapped hard on the window.

It was 12:47 on a steaming Friday afternoon in July 2011. Eleven minutes before, the Villanova lawyer had bought a bottle of Seagram's VO in a State Store on Lancaster Avenue, and witnesses reported seeing Lawless' car rolling slowly out of the parking lot, crossing the street, and bumping the curb.

When Officer Kenneth Piree smashed a back window and unlocked the door, he could not stir Lawless or even find his pulse.

Beside the frothing driver lay the nearly drained bottle, wrapped in a brown paper bag, as well as two airline-size Seagram's empties. At Bryn Mawr Hospital, Lawless would record a blood-alcohol level of .30 - more than three times the legal limit.

That was one of five times in less than a year that he was popped for drunken driving, and each time his blood-alcohol level exceeded .16 percent, Pennsylvania's highest grade of intoxication.

State law mandates 90-day sentences for anyone convicted twice of driving that drunk. Every conviction after that is supposed to trigger at least one more year behind bars.

But Lawless, who appeared regularly on CNN as a courts commentator, did not spend years in prison. Or even 90 days.

He didn't need to be a legal expert to benefit from a little-known state court ruling that has rendered Pennsylvania's toughened 2003 DUI laws gap-toothed.

In each of the five cases, he was able to plead guilty to being only a first-time offender.

As a result, he never got more than 10 days in jail for any of his convictions.

And during that entire yearlong stretch, he continued to drive on a valid license.

Why? Because Pennsylvania is one of the few states that require a conviction before yanking a license for DUI.

You might think the state toughened its approach to drunken driving a decade ago. Supported by MADD, Pennsylvania lowered the level of blood alcohol required for a driver to be considered impaired. It increased jail time - in particular for people who repeatedly drive under the influence.

Yet across Pennsylvania - where someone dies every day on average from a DUI accident - police, prosecutors, and judges are failing to curb repeat drunk drivers like Lawless.

Get arrested for DUI in Pennsylvania, and you're more likely to wind up back on the road drunk than in most other states. A March study by the National Highway Traffic Safety Administration found that across the country, about one in every four people who were convicted for drunken driving was a repeat offender.

In Pennsylvania, that rate is nearly half, based on an Inquirer analysis of figures PennDot provided, making it one of the worst rates of the 22 states the feds compared.

One reason for Pennsylvania's failure is that unlike 41 other states, it does not immediately suspend the licenses of drivers who fail sobriety tests. New Jersey does not pull licenses on the spot either, but its laws give courts and law enforcement more tools to deal with repeat drunk drivers.

Nor is Pennsylvania aggressive about the use of "interlock" devices, which block offenders from starting their cars if they are drunk. Thirty-one states require judges to order use of the devices after a first conviction, but not Pennsylvania. The federal Centers for Disease Control and Prevention say studies show that DUI rearrests fall two-thirds once the devices are mandated.

"There isn't any question that not only is the time ripe, we are overdue for putting some new laws on the books," said Lancaster County District Attorney Craig W. Stedman, who brought murder charges against a repeat drunk driver who killed Meredith Demko, 18, in July while intoxicated and high on heroin.

Stedman is scheduled to be the first witness at legislative hearings Monday to strengthen DUI laws. Patrick Crowley, of Chester County, is also scheduled to testify. His son Liam, 24, was killed last year by a repeatedly convicted drunk driver.

Without changes in Pennsylvania's laws, the father said, "more people will die needlessly.

"I don't want anyone to go through what I've gone through."

Across the state, drunk drivers and their attorneys have exploited weaknesses in the wording of the state law and the way it is enforced. Nowhere are those loopholes bigger than in Philadelphia.

In the surrounding suburbs, people arrested for drunken driving have a one in 10 chance of beating the case. In the city, it's one in four.

That is partly because many Philadelphia defendants don't show up for court. Though the system has cracked down on fugitives the last two years, in 2011, nearly one of every five people charged with DUI at one point failed to appear.

In Philadelphia, prosecutors and the courts have been particularly lenient with repeat offenders.

Under Pennsylvania law, motorists who get back behind the wheel once their licenses have been suspended for DUI must serve two months in jail if convicted. That's the penalty if they are sober when caught. If drunk, they face a three-month term.

In reality, though, hundreds of Philadelphia motorists never face such punishments - because, again, they simply ignore their court cases with little or no consequences. While judges issue fugitive warrants, the court system's overwhelmed Warrant Unit views them as a low priority.

Some city drivers have been ticketed as many as 10 times for the offense, court records show, without ever doing jail time.

The Philadelphia District Attorney's Office concedes that it shares blame for the leniency.

John Delaney, a top prosecutor, said that in some cases involving repeat drunk drivers, the office had failed to add the charge of driving on a suspended license when it prosecuted DUI cases. He said the office had been working in recent months to make sure staffers always check DUI defendants' license status.

But as John Lawless demonstrated again and again, repeat offenders are not exclusive to Philadelphia. He is one of thousands of people in Pennsylvania convicted of drunken driving four or more times over the last two decades. The actual number is somewhere between 2,000 and 6,000 - the state does not know for sure.

Living two lives

Today, Lawless, 63, is a changed man, says his attorney, J. David Farrell. Lawless has been attending Alcoholics Anonymous and is no longer driving. A member of Actors' Equity, he is concentrating on his stage career. He declined to comment for this article.

None of his accidents injured anyone. But that was not because Pennsylvania put the brakes on his behavior.

In court, he testified that he became an alcoholic more than three decades ago, starting a few years after he finished law school in 1976.

By 2011, Lawless was living two lives. Professionally, he appeared on CNN 10 times that year as a legal commentator. The former Chester County assistant district attorney was the author of a well-regarded book on prosecutorial misconduct.

Privately, alcohol addiction was unraveling his life.

In February of that year he drove his Mercedes into a fire hydrant in Lower Merion Township. His blood-alcohol level was more than three times the legal limit.

Two months later, he crashed the SUV in Villanova, plowing into a tree. Again, his alcohol level was triple the legal limit. Then came the Radnor crash.

And one month later, he was found semiconscious in his SUV on the side of the turnpike. He was three times drunker than the limit.

His fifth DUI came that November, in Haverford Township. Police said he was so drunk when they arrived that he could not open his car door.

Nearly a year later, Lawless appeared before William J. Furber, the president judge in Montgomery County, for sentencing on his three DUI arrests in that county.

But first Furber had to deal with a complication.

Standing before him in the courtroom, Lawless was drunk. Furber ordered him locked up immediately.

After Lawless had dried out in jail for two weeks, he again appeared before Furber for sentencing.

Lawless apologized for his courtroom drunkenness.

"I'm a criminal defense trial lawyer, and I have come to consider a courtroom almost a sacred place, because of what happens here. And over the years, it's been a place where I've felt most vital and alive," he said.

"I debased that concept and insulted everyone in this room."

Because Lawless had amassed his arrests before any conviction, Furber was bound by state law to treat each case as a first offense.

Furber sentenced Lawless to 10 days in jail on each of the three arrests in his jurisdiction. He received the same punishment for two arrests in Delaware County.

A huge ruling

Lawless and many other repeat offenders benefit from a 2009 state Supreme Court opinion that requires a motorist be convicted of DUI before being charged as a repeat offender on a subsequent drunken-driving arrest.

For that they can thank Patrick A. Haag Sr.

Late one night in 2006, the York County man was arrested for driving drunk. He was released in his wife's custody. Driving home, he was picked up again - still drunk.

A York County judge sentenced him to three days in jail for the first arrest, 30 days for the second, because he was a repeat offender.

The Supreme Court overturned that second penalty, saying it was wrong since Haag had not been convicted of the first offense before he was arrested again.

Attorneys on both sides of the case predicted that opinion would have huge implications.

"It's something that literally will change how DUI offenders are sentenced on a daily basis across Pennsylvania," said Haag's lawyer, John Ogden.

Andrew J. Petsu, the deputy county prosecutor, warned the state Supreme Court in 2008 that its logic would reward drunk drivers whose multiple arrests are bundled into one proceeding.

"The Commonwealth would be penalized in allowing the defendant to plead to all of his charges at one time," he wrote. And permitting people to be multiple first-time offenders, he added, would create "an absurd result."

He was right.

Defense attorneys know their clients can stay on the roads as they await trial. And in jurisdictions with overburdened courts, those cases can drag on a year or two until convictions are finalized and PennDot's bureaucracy pulls a driver's license.

That delay can result in disaster, as it did in March, after Nicole Bereshny-Ott, 30, of Hatfield, pleaded guilty in Montgomery County to driving under the influence of drugs. That was her second accident while she was driving under the influence.

Fifteen days after her plea, Bereshny-Ott's license still had not been pulled. She was driving on Route 202 in Bucks County, high on cocaine and other drugs, when her speeding car crossed into oncoming traffic, the coroner's report stated. She was killed along with the other driver, Yan Zou, a 50-year-old scientist on his way to work at Bristol-Myers Squibb.

The bundling problem

If the Supreme Court's ruling in the Haag case weakened the law's ability to keep the streets safe from repeat drunk drivers, the problem is compounded by a court procedure that can be called bundling.

Bundling is a form of judicial economy - in busy court systems it allows the judge to handle a number of cases against the same defendant at once, such as a binge drinker with a string of arrests.

But since the Haag ruling, strings of DUI arrests have been routinely treated as a number of first-time offenses, negating what the lawmakers had intended when they toughened the laws in 2003 for problem drunk drivers.

The Inquirer reviewed more than 250 bundled DUI cases in Philadelphia, Bucks, Chester, Delaware, and Montgomery Counties and focused on drivers with at least three convictions over three years.

In the city, drivers with three or more bundled cases were given sentences on average only about a third as long as their suburban counterparts, the newspaper found.

Half those Philadelphia defendants received sentences of just three days. In the suburbs, only 15 percent of the drivers with similar DUI bundles had such a short sentence.

The Philadelphia way

When it comes to drunken-driving cases, Philadelphia prosecutors John Delaney and Caroline McGlynn call themselves the "away team," facing a court system stacked against them.

Indeed, court records show that about one-fourth of the 5,000 DUI cases annually in Philadelphia end in acquittal. In the four Pennsylvania suburban counties, the rate is just 10 percent.

Why are sentences so much weaker in the city? For one, Philadelphia has its own way of handling DUIs and other misdemeanors.

City DUI cases originate in Municipal Court, a level that exists nowhere else in the state. If convicted, a defendant has an automatic right to trial on appeal in Common Pleas Court.

McGlynn, who oversees DUI prosecutions, calls it a "second bite of the apple."

And in negotiations with prosecutors, defense attorneys regularly raise the threat of a loss at a second trial to extract a better deal, she said.

"There are definitely circumstances when we plead cases," McGlynn said. "In a cost-benefit analysis, it's helpful to avoid a full second trial."

Delaney and McGlynn also acknowledged that city prosecutors have failed to fully use a key tool available to them in pursuing DUI cases.

In Pennsylvania, when police catch someone driving drunk on a license suspended from a previous drinking conviction, prosecutors can charge the motorist with two offenses: DUI and driving on the pulled license.

The license infraction alone carries a three-month minimum jail sentence if a person was using drugs or alcohol. The penalty escalates with additional offenses to two years in prison.

But in Philadelphia, prosecutors were long in the dark about a huge number of the tickets for DUI-suspended licenses because of the ancient division of Philadelphia's judiciary:

Police usually sent all tickets of motorists caught driving on DUI-suspended licenses to Traffic Court, while sending the criminal DUI case to prosecutors.

Court data show that in just half the cases of motorists who could have been charged with the suspension, they did not have those infractions added to their DUI cases.

"The Police Department was so used to the mind-set that traffic tickets go to Traffic Court, Traffic Court, Traffic Court," Delaney said. "Our mantra was that we weren't interested in doing traffic tickets because they went to Traffic Court."

That began to change when the District Attorney's Office shook up its prosecution of DUI cases last year. It took those steps as Traffic Court was being dissolved after nine of its current or former judges were indicted on ticket-fixing charges.

But that is still a work in progress, Delaney and McGlynn said.

The District Attorney's Office just this summer began staffing traffic cases with prosecutors, who are supposed to ensure that charges of DUI and driving on a DUI-suspended license are joined.

The prosecutors also said city police officers are not as prepared as state troopers for trial. State police come to court backed up with dashboard video of their DUI arrests. Philadelphia police lack that technology. To improve the testimony, the District Attorney's Office is conducting training courses for police.

A .358 reading

The case of Robert F. Taylor shows just about everything that can go wrong in Philadelphia when trying to stop a repeatedly drunken driver.

In the words of his prison caseworker, the 61-year-old Liberian immigrant who lives in Yeadon showed "nonchalant attitudes towards his reckless behavior" of drinking and driving.

In less than a year, Taylor was arrested for drunken driving five times. He had four arrests in Philadelphia and one in Delaware County.

Taylor declined comment for this article other than to say he had complied with all court requirements and was glad to be done with the case.

The following account is drawn from court records and interviews with authorities involved in his charges.

His first DUI arrest came in February 2010 in Yeadon after he smashed his Dodge Ram pickup into a parked car outside a nursery school.

He was arrested for DUI a month later in West Philadelphia, and again in Philadelphia in July 2010, October 2010, and February 2011.

Even though he pleaded guilty to the Yeadon offense early on, Philadelphia prosecutors did not notice that he was a repeat offender. Nor did they charge him with driving on a license that was revoked because of the Yeadon DUI.

If convicted of either of those charges, Taylor would have landed in jail with a mandatory three-month sentence.

In March 2012, two years after his first city arrest, Taylor appeared before Municipal Court Judge Joseph J. O'Neill.

The judge recited Taylor's sky-high alcohol levels in the cases, which topped out with the February 2011 arrest at .358 - more than four times the legal limit. Experts liken that degree of intoxication to the effects of surgical anesthesia.

Because prosecutors never told the judge of Taylor's suburban record, he was treated as a first-time offender.

O'Neill then handed down a three-day sentence for the package of four DUIs - the minimum term for an initial conviction. And he did not order that an interlock device be installed on Taylor's car - that's only for someone's second conviction.

He warned Taylor that he should not come back to his courtroom.

"If I see you, you're going away," the judge vowed.

That turned out to be little deterrent. In August 2012, six months later, police stopped Taylor in South Philadelphia. He stumbled from his car and "almost fell in the middle of the street," the arresting officer reported. His alcohol level was nearly twice the legal limit.

Taylor pleaded guilty again, this time before a new Municipal Court judge, T. Francis Shields.

Shields finally sentenced him to jail as a repeat offender. Taylor would serve a year in prison.

But prosecutors missed something in that case, too.

Taylor had an outstanding warrant for driving on a DUI-suspended license from his 2012 arrest.

That warrant is still outstanding.

The Difference In New Jersey

In key ways, New Jersey law is tougher on drunken driving than Pennsylvania's is.

Unlike Pennsylvania, New Jersey gives judges the authority to make first-time offenders use "interlock devices" to drive. Under New Jersey law, drivers arrested with a high rate of intoxication - a blood level greater than .15 - must use the system, even when the case is their first drunken-driving conviction.

New Jersey judges may jail offenders on a first conviction even if their blood-alcohol level is at .08, the lowest possible score to be deemed drunk. In Pennsylvania, drivers must be highly intoxicated before they can be imprisoned.

And unlike in Pennsyvlania, New Jersey does not permit drivers to be labeled as multiple first-time offenders for DUI trials.

New Jersey also yanks the license of people convicted a third time of DUI for a full decade. In Pennsylvania, such drivers can get back behind the wheel in 18 months.

However, New Jersey, like Pennsylvania, does not suspend licenses immediately upon a DUI arrest.