St. Louis, MO
"Repeat drunken drivers avoid felony DWI charges"
Michael O'Fallon is the kind of guy Missouri lawmakers meant to target when they passed a get-tough law on DWI.
Under the decades-old law, any arrest after two DWIs is supposed to be a felony, carrying a potential prison term.
But the Eureka man escaped felony charges on his third arrest.
And his fourth.
His fifth arrest came Aug. 3, after police said he swerved head-on into an SUV carrying a family on the way home from getting snow cones.
The crash sent a mother and daughter to the hospital, gave two kids nightmares and enraged a husband and stepfather. He learned that the man who nearly wiped out his family had evaded serious punishment for years.
"He should have never been on the road," said Andy Colombini. "Something's gotta be done. And it's not just us this has happened to."
A Post-Dispatch investigation has found that chronic offenders such as O'Fallon routinely avoid felony charges because of arcane laws, poor record-keeping, confused police, complicated court rulings and a justice system that is slow even when all its players do their jobs.
A computer analysis of Missouri data found that last year alone, authorities in the St. Louis area failed to file felony charges on at least a third of all drunken drivers who qualified for them. (Illinois would not provide complete data for analysis.)
The problem is particularly severe in St. Louis County, where in 2008, nearly half of the arrests reviewed have not resulted in felony charges.
The result: The most dangerous drunken drivers are getting breaks before they even get to court. The failures ensure they'll never face the penalties lawmakers have authorized.
Some chronic offenders get charged with misdemeanors or municipal ordinance violations
That's what happened to O'Fallon after his third and fourth arrests.
At least O'Fallon was charged with something. Sometimes, because of bureaucratic bungling, chronic drunken drivers are not charged at all.
Newton Keene had already been to prison for a fifth DWI, but police forgot to seek charges for two later arrests. Afterward, he slammed head-on into a subcompact car, killing three people.
The failures infuriate the loved ones left behind, including Karen Jackson, grandmother of one of the victims of Keene's crash in February.
"The judicial system is letting all these people just slip through like that, as if it's not serious," Jackson said. "But it is serious. … People are dying."
FAILING TO CHARGE
In nearly all DWI arrests — even for people with long arrest records — drivers are released from jail in a matter of hours.
For the first or second arrest, they are handed a ticket, much like a speeding ticket.
Usually, they are ordered to report in several weeks to one of the more than 100 municipal courts dotting the area. There they face municipal ordinance violations, which almost always lead to fines but no jail time.
Some first- or second-timers are directed to face misdemeanor DWI charges at county courthouses. Although considered a bit harsher than municipal cases, misdemeanor DWIs also rarely lead to jail time.
The third DWI is supposed to be handled differently — with a felony charge and potential prison time.
That's what the law says, anyway.
The reality is far different.
The newspaper analysis of Missouri data found that in St. Louis and six area counties, authorities failed to issue felony charges on 105 of the 275 arrests that qualified.
MANY PROBLEMS
The newspaper reviewed the 105 arrests that did not result in felony charges, and it found the biggest problem came in the first step of the charging process.
In nearly two-thirds of the cases, county prosecutors say, police didn't ask them to file felony charges.
To seek a felony, arresting officers must first figure out if the suspect has two prior DWI offenses that would qualify a new offense as a felony.
That's no easy task. It could involve an entire shift — or longer — trying to decipher sometimes incomplete computer records. For example, the state drivers license data omit a DWI plea agreement used routinely by the courts.
Even when officers can get a true list of all past convictions, not every conviction counts, such as cases tried by a municipal judge who isn't a licensed attorney.
Sometimes, because of new laws and court rulings, a case will count, then it won't, and then it will.
The state Supreme Court ruled in March 2008 that the Legislature did such a poor job of writing the DWI law that some types of DWI convictions couldn't count toward a felony charge. It took a year for the Legislature to fix the law.
Police, prosecutors and defense lawyers have had trouble keeping straight which past DWIs count.
When police or prosecutors do find two qualifying prior offenses, they need to prove it to a judge. That means getting courts to send certified copies of past convictions.
Sometimes the courts provide the paperwork but not the specific kind needed for a prior DWI to be usable.
Other times, the requests for copies are ignored, lost or never received — with little accountability.
In one case, St. Louis County prosecutors complained that they had waited for months for records from the county's municipal court. But the municipal court said it never got the request.
Nobody has pushed the issue, even though the offices of the court clerk are just across the street from prosecutors'.
During such waits, prosecutors often file misdemeanor charges before cases get too old to prosecute in the hope they get the records they need to eventually charge felonies.
But with prosecutors juggling cases, they can lose track of who is owed what paperwork.
"I will be the first to tell you, in some of these (cases), we sent the letters requesting the priors," said St. Louis County Prosecuting Attorney Robert McCulloch. "We didn't get any response, and we haven't followed up on them in a period of time we should have."
TWO CHANCES, ZERO FELONIES
So people such as O'Fallon slip through the cracks.
The 33-year-old college teacher pleaded guilty to two DWIs in 2003, one from Pacific Municipal Court and the other from St. Louis County Circuit Court.
Both times he was found to have double the legal limit of alcohol in his system. Both times he was given a special kind of probation to keep the DWI off his driving record.
Three years later, a drunken O'Fallon ran his car off the road in Jefferson County. He tested at 2 1/2 times the legal alcohol limit.
But his third DWI didn't result in a felony charge.
Prosecutors said state databases didn't list Pacific's DWI. Even if they had, Pacific's DWI couldn't have counted because its municipal judge wasn't a licensed attorney.
So O'Fallon's third DWI was a misdemeanor.
And so was his fourth — for a different reason.
In that arrest, O'Fallon nearly sideswiped a car in Eureka in November. He refused testing but admitted he had had "too much" to drink, according to a police report. He also said he had three past DWIs.
But the officer, in checking O'Fallon's driving record, found only O'Fallon's third DWI, the 2006 Jefferson County case. O'Fallon's other qualifying DWI — the 2003 St. Louis County case — was listed in another police database the officer did not check.
So, again, O'Fallon escaped a felony charge. He pleaded guilty in July to a municipal violation for driving with an elevated blood-alcohol level. He was fined, with no jail time.
On Aug. 3 — less than a week after his fourth guilty plea — a drunken O'Fallon rounded a curve too fast in northern Jefferson County, police said.
His right tires slid onto the shoulder. He jerked the wheel to the left, and sent his pickup skidding across the center line.
Coming in the opposite direction was the Colombini family.
Andy and wife Jamie still remember barely being able to utter "Oh, my God!"
They remember the screams. The impact. The whiplash. The smoke billowing from the hood.
She can't forget the look O'Fallon gave her after the crash.
"This guy jumped out of his truck and just looked around and started smiling," she recalled.
"I knew he was drunk just by how he got out."
A highway patrol trooper agreed, arresting O'Fallon that night for DWI No. 5. He was released a few hours later.
THE PAIN, THE WAIT
On the one-month anniversary of the crash, Jamie Colombini hobbled to her couch in Fenton. A brace stretched over most of her right leg. Another brace enveloped her ankle. She has a back brace too, but it hurts too much to wear while sitting down, she said.
Doctors can't say for sure how much damage her neck, back and leg sustained, she said. She's in constant pain and expects she'll need back surgery.
Beside her on the couch was Andy, a firefighter-paramedic by trade. He's sidelined with a wrist brace to cover a gash from the collision, which sent his arm into the dashboard console. His back hurts, too, and he also may need surgery.
They worry about their children. The 16-year-old, Amanda, had a softball-sized bruise on her shoulder. She just got her license but is now too afraid to drive.
Zachary, 12, and Tyler, 10, struggle to sleep at night. Tyler wakes up screaming, sobbing and shaking from nightmares of oncoming headlights and rolling cars.
They hear their parents talk about how O'Fallon had been caught again and again for DWI.
"You have your child ask you: 'What's it going to take?'" Jamie Colombini said. "Would they finally have done something if we would have died?"
O'Fallon, through an e-mail, declined to comment. His longtime attorney, Jim Wahl, said O'Fallon admitted himself into an inpatient addiction treatment program after the crash.
"He told me that he realizes he has a problem and that he needs to deal with it, and that's what he's doing," Wahl said.
While O'Fallon gets treatment, the highway patrol is continuing its investigation. It commonly takes five to six weeks for arrest reports to be sent to prosecutors. With a backlog of cases at the prosecutor's office, the average case takes four weeks to review before prosecutors make a decision on charges.
After that — if prosecutors agree with police — O'Fallon could face his first felony DWI charge.
St. Louis, MO DWI Criminal Defense LawyersLabels: Missouri DWI Enforcement, Missouri DWI Legislation, Missouri DWI Statistics, Missouri Felony DWI Arrests and Charges, Missouri Felony DWI Convictions, MO DWI Law, St. Louis MO DWI
