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FITZPATRICK CASE DEEPENS <br> 4TH INCIDENT REPORTED IN NEW ORLEANS

Erie County Legislator Michael A. Fitzpatrick was arrested on drunken-driving charges in New Orleans in February after his rental car crashed into a ditch, just two weeks before his arrest on similar charges in Evans.

The New Orleans charges mean that Fitzpatrick has a total of at least four drunken-driving arrests in five years, including two this year.

Fitzpatrick, 62, denies that he drove the rented Lincoln Town Car into the ditch.

"I wasn't driving that car," said Fitzpatrick, a Democrat who has represented South Buffalo for 23 years.

Evans Town Justice Anthony J. Barone Jr., who last week convicted Fitzpatrick on a lesser charge of driving while impaired, said he knew about the New Orleans arrest but did not let it factor into his decision because the case there is still pending. Fitzpatrick was sentenced to four weekends in jail, fined $800, and his license was suspended for six months in connection with the incident on Route 5 in Evans, near Fitzpatrick's lakeside home, on Feb. 24.

Erie County District Attorney Frank J. Clark said that his office did not know about the New Orleans arrest at the time of the trial in Evans but that it would not have made a difference.

"An out-of-state matter has no effect on what we do here," said Clark, a Democrat. "It's still what it was -- with that arrest or without it."

Elizabeth A. Obad, president of the local chapter of Mothers Against Drunk Driving, said the New Orleans arrest only adds to the outrage of MADD members about Fitzpatrick's record.

"This is extremely upsetting. How many chances is this man going to have?" asked Obad, who said her group has been deluged with phone calls since Fitzpatrick's trial. Obad said the group is questioning why Fitzpatrick has not been ordered by a judge to get treatment for his drinking.

The county legislator took a breath test after the New Orleans accident, and results showed that he had a blood-alcohol content of more than 0.20 percent, well over the legal limit.

Fitzpatrick, who is a top official in the International Iron Workers Union, said he was in New Orleans on union business and was riding with a Rochester friend when the accident took place.

Fitzpatrick said that his friend, who was driving, left the scene after the accident but that he waited with the damaged car for a tow truck to arrive.

"I told the policemen I wasn't driving," Fitzpatrick said. "I just stayed with the car because it was being towed. We were going out (to the airport) to pick up my daughter, and my friend made a wrong turn."

Police reports from the scene of the accident tell a different story. The reports include eyewitness testimony by a security guard who saw the accident and called police. Police reports gave the following account:

Fitzpatrick was found at the scene of the accident -- a ditch off of an industrial parkway -- about 11 p.m. Feb. 9. He was standing near a gold-colored Lincoln Town Car that was wedged in the ditch. The key was still in the car's ignition. The security guard told police that he had seen Fitzpatrick drive the car into the ditch and climb out of the driver's-side door.

At the scene, Fitzpatrick told police a different story than he told The Buffalo News this week. He said his daughter had been driving at the time of the accident. But according to police reports, his daughter was not there. When police questioned Fitzpatrick about where his daughter was, he said that he had called her a taxi and that she left. Police said Fitzpatrick did not have a phone with him and had no access to a phone.

According to police reports, Fitzpatrick told officers at the scene: "You didn't catch me in the car."

The charges against Fitzpatrick -- driving under the influence and careless operation of a motor vehicle -- are still pending in New Orleans.

Locally, key players in Fitzpatrick's trial last week in Evans said the New Orleans arrest would not have made a difference in the case.

Barone said that allowing the New Orleans case to have entered into his deliberations would have been unethical.

"Legally, an arrest is not a conviction," Barone said. "We have a Constitution where persons are presumed innocent until they are found guilty. It would have been a reversible error on my part to consider an arrest (when deciding Fitzpatrick's case)."

Barone said that Fitzpatrick did not mention his New Orleans arrest in court but that he was not required by law to do so.

In court, Fitzpatrick did acknowledge two other drunken-driving arrests, in 1996 in Evans and in 1997 in Florida, Barone said.

Clark said his office did not find out about the New Orleans case until after Fitzpatrick's trial had been completed last week.

Still, Clark said, the fact that Fitzpatrick was arrested in New Orleans would have no bearing on the Evans case, since out-of-state arrests and convictions for drunken driving do not usually carry over into New York State.

"If I had known about that, would it have made a difference? No," said Clark. "We didn't plead it down. We tried the case."

In his most recent arrest, on Feb. 24 in Evans, Fitzpatrick refused to take a Breathalyzer test. In his three previous arrests, he had agreed to take the tests and had registered blood-alcohol levels higher than the legal limit.

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