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They call it the "hit, run and hide" loophole in New York State law, and now it's about to close forever.

But not in time to provide a stiffer sentence for the driver who left the scene after striking and killing Donald E. Fruehauf of Amherst in 1999.

Nor will the new law help the families of dozens of other hit-and-run victims killed on New York roads the last few years.

The leaders in the Assembly and State Senate have signed off on legislation that will increase the penalties for leaving the scene of a fatal accident, instead of "rewarding" a drunken driver for leaving the scene, the way the current law does.

"The law protects someone who was intoxicated, left the scene and turned themselves in later," said Assembly Majority Leader Paul A. Tokasz, D-Cheektowaga. "That was not the intent of the law."

"Current law is advantageous to those who are reckless and cold-blooded," State Sen. Mary Lou Rath, R-Williamsville, a Senate sponsor, has said.

Under current state law, an intoxicated driver who stays at the scene of a fatal accident can face a vehicular-manslaughter charge, a Class D felony that can lead to seven years in prison.

But that same person, by leaving the scene of the fatal accident and sobering up for a few hours, can avoid a charge of driving while intoxicated. That person then may be charged with leaving the scene of a fatal accident; that's a less serious Class E felony, which can lead to a four-year sentence -- and often no more than one year.

That's exactly what happened in the case of Fruehauf, the 68-year-old car mechanic struck and killed in August 1999 while riding his bicycle on Getzville Road, near Sheridan Drive.

The driver, former local attorney Drew V. Tidwell, turned himself in a few days later. Although investigators later uncovered evidence that Tidwell had been drinking whisky at a bar not long before the collision, they could not prove he was drunk.

Tidwell, who pleaded guilty to leaving the scene of a fatal accident, was sentenced to one year in the Erie County Correctional Facility, but served only eight months. He also was disbarred.

Fruehauf's brother, Robert, welcomes the upcoming change in the law, but wonders why it took so many years.

"It seems an awfully long time since Mary Lou Rath proposed that," he said. "I don't know what took so long."

The bill had passed the State Senate for four straight years but remained bottled up in an Assembly committee; some Assembly members reportedly balked at the idea of equating, legally, two different acts: leaving the scene of a deadly accident and killing someone while drunk.

But legislative leaders in both branches worked together to hammer out the agreement.

Under that agreement, the charge for leaving the scene of a fatal accident will be raised from a Class E to a Class D felony. And the charge for leaving the scene of an injury accident would rise from a Class B misdemeanor to a Class A.

The Senate already has passed that provision, and the Assembly is expected to act soon on a similar bill.

"It's been agreed upon, and we plan on passing it within the next few weeks," said Meg Murray, Tokasz's legislative director.

Gov. George E. Pataki has agreed to sign the bill into law.


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