Bill to toughen drunken-driving loophole stalled in Albany

ALBANY -- A bill passed overwhelmingly by the State Legislature five months ago to close a loophole that prosecutors say encourages drunken drivers to flee serious accidents is languishing in Albany.

Those backing the measure say it must be signed into law by Dec. 31 to end an "incentive to flee." They say drivers impaired by alcohol or drugs increasingly speed from serious accidents because the penalty for leaving the scene of an accident -- even if they are caught -- is less than they would face if they stayed at the scene and reported the crash immediately. Traffic safety advocates say the loophole has created an epidemic statewide that delays medical treatment to seriously injured drivers and passengers because the accidents are not reported quickly.

"As is frequently the case, everything in Albany comes to deadlines, and that happened here," said Assemb. Fred Thiele Jr. (I-Sag Harbor), the Assembly sponsor of the bill that won final legislative approval on June 16. "Hopefully, that will focus everyone's attention."

Would it make a difference?

The problem is that the key group the bill was supposed to help -- prosecutors -- say the bill is so narrowly written it would be nearly useless. The chances of a stronger bill being signed into law, however, are diminishing, because Thiele said there still is no agreement on how to word any amendments. Gov. Andrew M. Cuomo also could sign or veto the existing bill. If he takes no action, it would still go into effect.

The bill's sponsors blame 13 deaths in 2002 in Suffolk County alone on this "incentive to flee." In some cases, the drivers fled the scene of the accident and its injured victims to set up alibis, they say.

Currently, a driver impaired by alcohol or drugs who leaves the scene of a serious accident avoids a blood-alcohol test that could result in a Class C felony, which carries a sentence of up to 15 years in prison.

Even if the fleeing driver is later caught, or turns him- or herself in to police hours or days later, the driver in a fatal crash would face no more than a Class D felony for fleeing, punishable by up to seven years in prison. If the crash resulted in serious injury rather than death, the driver would face a Class E felony for leaving the scene, punishable by no more than four years in prison.

The current loophole was created over the last several years as the Legislature increased penalties for drunken driving but didn't update charges for leaving the scene, said Maureen McCormick, an assistant district attorney in Nassau County and an authority on traffic law prosecution.

The pending bill, however, would create a new crime of "aggravated leaving the scene of an incident without reporting." The new law would be a Class C felony, with the same 15-year maximum sentence that would be faced by a driver who stays at the scene and is convicted of drunken driving.

But McCormick, along with the state District Attorneys Association and traffic safety advocates, including Families for Safe Streets, which is composed of relatives of people killed or seriously injured in crashes, say the bill is flawed because it requires too many factors to be in place before the new charge could be made.

The new crime would require that more than one person was killed or seriously injured and the death or injuries were caused by reckless driving as defined by law. In addition, the driver who fled had to be operating with a suspended or invalid license because of a prior conviction of driving while impaired or intoxicated; or the driver had to have a prior conviction of leaving the scene of an accident that caused death or serious injury, or a prior conviction of driving while impaired or intoxicated in the previous 10 years.

"It's extremely narrow," McCormick said. She said she circulated the bill among prosecutors statewide and found no previous cases in which all those requirements were met.

"It won't prove to be a deterrent," she said. "The amendments will have to be substantial."

Discussions progressing

Thiele and advocates said private negotiations last week with the Senate and Cuomo to amend the bill were progressing. The bill's sponsors even agree to the amendments.

"There are active discussions going on," Thiele said. "All three parties are talking about this . . . it's on the radar screen, so I am cautiously optimistic."

The Senate's Republican majority and Cuomo, however, insisted there are no negotiations underway.

Albany's politics and practices make forecasting difficult when public policy is shaped in private negotiations.

The Assembly led by liberal Democrats has a track record of opposing bills that increase the prison sentences of crimes.

The Senate's Republican majority is closely allied with the state District Attorneys Association and has a record of supporting get-tough-on-crime initiatives. The chamber's sponsor, Sen. Rich Funke (R-Fairport), wouldn't comment.

Cuomo's aides said that although they are aware of the bill, they haven't received it yet and have nothing to say publicly. But in Albany, the Legislature sends bills to the governor when the governor asks for them. The governor's deadline to sign or veto a bill -- 10 days -- doesn't start until the governor formally receives the bill.

Prosecutors and traffic safety advocates are pushing for the amendments before Dec. 31. In Albany, where thousands of bills are passed each year, the Legislature rarely returns to an issue after it is passed.

State District Attorneys Association President Gerald Mollen, the Broome County prosecutor, said the bill as drafted "would not provide any effective tools to prosecute impaired drivers who flee the scene of a crash."

"The families of hit-and-run victims have sought the change represented by the suggested chapter amendment for many years without success and are seeking your leadership," Mollen wrote Cuomo in August. Without it, the group "recommends that you veto the bill."

By Michael Gormley

michael.gormley@newsday.com@GormleyAlbany

Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.