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DANGEROUS AND DEADLY LOOPHOLES

How long will County Legislator Michael A. Fitzpatrick -- and others like him -- be allowed to careen down the highway before they are finally convicted of a drunk driving charge? Or before someone gets seriously injured or killed?

The answer seems to be hidden in a legal system that allows offenders to skirt justice. State legislators need to implement change in a system that provides enough loopholes for a savvy drunk to stumble through.

Many lawyers will tell you this: If you're stopped by police who suspect you of driving while intoxicated -- and you're drunk -- don't take a Breathalyzer test. However, if you're stone-cold sober, sure, go ahead.

The reasons for not taking a Breathalyzer test lie in the potential consequences. If a judge has quantitative evidence that you were drunk, meaning if you blew the nozzle off the machine, he or she has a lot more room to convict. But if you did not take that test, the judge has only qualitative evidence from the officers who stopped you to rely on. In other words, it's your word against theirs.

Sure, if you don't take the Breathalyzer test, you will automatically have your license suspended for six months and get a possible fine. But for some people that's a small price to pay against the possibility of a felony drunk driving charge.

And in most cases, according to Erie County District Attorney Frank J. Clark, judges will not convict solely on common-law evidence unless it's obvious the person was drunk. Clark uses the example of the person being near comatose, vomiting, driving the wrong way down a one-way street or causing an accident.

That's what happened in Evans Town Court when Town Justice Anthony M. Barone convicted Fitzpatrick of driving while impaired instead of driving while intoxicated. That witnesseses observed Fitzpatrick driving erratically and saw his car swerving, that he couldn't complete the alphabet and that his breath smelled of alcohol and his speech was slurred were not enough to persuade Barone that Fitzpatrick was drunk.

To be fair, Barone is not alone in his reluctance to find people guilty of drunk driving. Most judges, Clark said, would have ruled the same way.

And one of the reasons for that judicial reticence is that prior bad acts don't count. Neither a judge nor jury can take into account any prior convictions when considering the case in front of them. This is the third time, for instance, that Fitzpatrick has been charged with driving under the influence of alcohol. But judges can only take that into account when considering the penalty if a person is convicted of driving while intoxicated. Some people go to trial with eight prior arrests for driving while intoxicated, Clark said, but the jury doesn't know that beforehand and a judge can't consider it.

They should be allowed to.

It's painfully obvious that the law surrounding driving while intoxicated needs to be readdressed. But, as a people, we tend to be ambivalent about providing information that will be used against us in court -- especially if we're compelled to do so, according to Lee Albert, professor of constitutional law at the University at Buffalo.

"It's felt requiring people to give evidence against themselves, they ought to have a chance to say no," Albert said.

While no one wants to give rights away, what about the rights of innocent people on the road? The Legislature needs to re-examine the complicated laws surrounding drunk driving.

At the least, the penalty for refusing to take a Breathalyzer test should be increased. How about a revocation of your license, with a stipulation that you must wait two years before reapplying for a new one. Clark has an even better suggestion: Let the refusal to take the test become evidence of intoxication. The only reason to refuse is because you're drunk. The law should recognize that.

The Legislature has a responsibility to act. Drunk drivers have to be taken off the road, and if judges are unwilling to use the tools at their disposal to protect this community, give them ones they will have to use.

As it stands, the loopholes through which the guilty can slip through are too big.

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