ONONDAGA COUNTY, N.Y. (WSYR-TV) — This week’s Fugitive of the Week is wanted on two felony county court bench warrants for driving while impaied by drugs.
Carrie Phalen, also known as Carrie Riccardi and Carrie Mayhoefer, was arrested twice in 2017 on charges of driving while impaired by drugs.
Her first arrest in July 2017 was by the Onondaga County Sheriff’s office after a volunteer fireman observed her swerving all over the road. When Phalen pulled into a gas station, the volunteer fireman pinned her vehicle in until authorities arrived.
Phalen’s second arrest came in October 2017 by the New York State Police on the same charges.
Phalen was placed on probation, which was violated in January of 2018.
Phalen is described at 5’3” and 103 pounds with blond hair and green eyes.
Ethyn Buotte was driving drunk and under the influence of drugs when his car hit a tree May 31, 2018, in Weld – resulting in the death of a Dixfield man.
Ethyn Buotte, right, is comforted by his attorney, Jeffrey Wilson on Friday morning in Franklin County Superior Court in Farmington as Buotte reacts to Justice Robert Muller reading the obituary of Griffyn Smith, who was killed in a crash exactly a year ago in a car Buotte was driving. Sun Journal photo by Russ Dillingham
FARMINGTON — A Franklin County justice sentenced a Rumford man Friday to serve three years of a 10-year sentence for driving drunk and under the influence of drugs when his car crashed in Weld on May 31, 2018, and a Dixfield man was killed.
Upon his release from prison, Ethyn Eric Buotte, 19, who pleaded guilty to manslaughter Friday in Franklin County Superior Court, will serve four years probation in connection to the death of his best friend and neighbor, 19-year-old Griffyn Smith.
Smith was well liked and was a four-time state champion wrestler when he attended Dirigo High School in Dixfield. He earned an associate’s degree at college as a precision machinist and had planned to enter the U.S. Navy. He had studied precision machining in college and graduated with an associates degree.
Buotte’s guilty plea was part of a partially negotiated agreement with the sentence being 10 years with the suspended portion of it capped at three years, Deputy District Attorney James Andrews said.
Ethyn Buotte enters Franklin County Superior Court in Farmington Friday morning for his sentencing. Sun Journal photo by Russ Dillingham
The state dismissed a charge of operating under the influence resulting in death.
Andrews read a summary of the facts before Buotte was sentenced.
If the case went to trial, the court would have heard from several witnesses including a front-seat passenger Alysa St. Cyr, police and experts.
According to Andrews, Buotte was 18 and driving a 2008 Toyota Corolla at 71 mph in a 35 mph zone when he lost control of the car at about 11:30 p.m. on the West Side Road in Weld. Smith was a passenger in the back seat of the car. The car started to spin, rolled over several times. The car hit a tree and the roof imploded and came down on Smith. The car continued to spin and Smith was ejected. The cause of Smith’s death was blunt force trauma, Andrews said.
Evidence shows that Buotte had been drinking alcohol and there was a presence of marijuana and had snorted an opioid painkiller — hydrocodone and had taken a prescription medicine in his system.
According to St. Cyr, Buotte moved the car in an attempt to leave the scene. She called 911, according to Andrews. Buotte moved Smith’s body and tried to resuscitate him. Buotte also burned some evidence — a pair of pants to before first responders arrived, St. Cyr told police. He had a blood-alcohol level 0.138% about two hours after the crash, Andrews said.
Defense attorney Jeffrey Wilson said Buotte disagrees with some of the state’s evidence, including that he attempted to leave the scene and burned evidence. Wilson had motions to suppress evidence filed with the court but Buotte told him not to go through with them because he wants to take responsibility for his actions, Wilson said. He withdrew those motions.
There were lots of tears in the courtroom from both side, even after the sentencing was over.Advertisement
This was a fatal crash that resulted in layer after layer of reckless conduct, Andrews said. Buotte also had two contacts with police within two months of the crash, one of those resulted in a conviction on a misdemeanor charge of terrorizing, he said.
Andrews argued for Buotte to serve three years while Wilson argued for nine months and a day. The latter means it would be a sentence to the Department of Corrections and would allow Buotte could continue to better himself.
Ethyn Buotte, right, listens as his attorney, Jeffrey Wilson addresses Justice Robert Muller in Franklin County Superior Court in Farmington Friday morning. Sun Journal photo by Russ Dillingham
“Ethyn has the rest of his life to live and my son has none,” Smith’s mother Cheryl Smith said. She said her family has been very compassionate with Buotte.
“It is only fair he get the full amount,” Smith said, meaning the plea agreement’s three-year cap.
Other family members also asked for him to serve the three years.
Cindy Smith Prakash and Allison Smith Daley, Griffyn’s aunts, both addressed the court. Prakash read from a prepared statement. She told the court her nephew was killed by Buotte’s intentional, selfish and senseless actions. In a cruel twist of fate, it was on his parents wedding anniversary, she said. The car Buotte was driving was unsafe and had two spare donut tires on it, she said.Advertisement
“I can’t imagine the terror that Griffyn experienced,” Prakash said, right before his death. “Griffyn actually cared about you, Ethyn, when others didn’t,” she said.
When she started to cry harder, Daley took over reading the statement.
In part, she said, “A bright shining light of a young man is now gone.”
A case worker for Buotte said for the past six to nine months he has not only worked hard to better himself, he has set some goals with one of them being to speak youth to help them not make the mistakes he made.
Buotte has started to take control of his life, Wilson said, and even went back and finished high school. Buotte was just 18 at the time, barely an adult, and is very remorseful of what happened. Buotte wanted the Smiths kept informed of what was going on in the case. Buotte requested a day be added to the nine months so that he would serve his sentence in the Department of Corrections facility and not a county jail.
Buotte spoke directly to Errin and Cheryl Smith, Griffyn’s parents, and apologized more than once to the family, and he recognized that was not enough. He thinks of Griffyn constantly and wishes he could undo that night. He also apologized to his family and the community.Advertisement
“I will never be able to make this right,” he said.”I want to reach out to young adults to keep them from doing the same things I did.”
Once Buotte was sentenced and before he was taken into custody, he spoke to the family personally. It ended with a handshake from Smith’s father and a hug from Smith’s mother.
WASHINGTON (Reuters) – U.S. Supreme Court justices on Tuesday wrestled with whether police need a court-issued warrant to draw an unconscious suspect’s blood in a case involving a Wisconsin man convicted of drunken driving based on blood obtained without his consent.
The nine justices appeared divided over the case as they heard about an hour of arguments in an appeal by the man, Gerald Mitchell, of state court rulings that endorsed the ability of police to test blood drawn from an unconscious person.
Mitchell appealed a ruling by Wisconsin’s highest court that the blood draw did not violate the U.S. Constitution’s Fourth Amendment protections against unreasonable searches. Police drew the blood, which showed his blood-alcohol concentration far above the state’s legal limit, after finding Mitchell shirtless, wet and covered in sand near the shores of Lake Michigan.
At issue is a Wisconsin law that assumes motorists automatically give consent to tests of their breath or blood simply by driving on the state’s roads, even if they are unconscious. More than half the 50 U.S. states have similar laws.
Chief Justice John Roberts and Justice Samuel Alito, both conservatives, appeared sympathetic to Wisconsin.
“Ignorance of the law is no excuse,” Roberts said, invoking a old legal maxim. “Why do you need them to sign a piece of paper?”
Alito noted that agreeing to a blood draw could be viewed as “a condition to the privilege of driving” on Wisconsin’s roads.
Liberal justices appeared to sympathize with Mitchell. Justice Sonia Sotomayor said although motorists generally know that driving under the influence is illegal, whether they are aware blood can be drawn without consent is a different issue.
“This is not quite ignorance of the law. This is something substantially different because you’re talking about … knowledge that your body can be invaded by police to secure evidence to prove you drove intoxicated,” Sotomayor said.
Fellow liberal Justice Elena Kagan said a law like Wisconsin’s works fine when drivers are conscious because they can withdraw consent when police ask for a blood draw.
“But that falls apart in this situation of the unconscious driver,” Kagan added.
The Supreme Court in recent years has limited police ability to draw blood without a warrant and without a motorist’s consent, and frowned upon criminal penalties against people who refuse to consent to a blood draw.
The case dates to 2013 in Wisconsin’s Sheboygan County when Mitchell’s neighbor called police to report that Mitchell had driven away in a van, apparently drunk, and may have been suicidal. He had taken about 40 pills along with vodka mixed with the soft drink Mountain Dew, according to court filings. Mitchell later testified he had been depressed and suicidal.
After police found him, Mitchell fell unconscious as authorities drove him to a hospital, where they ordered staff to draw his blood for an alcohol concentration test despite not having a warrant. Police charged him with operating a vehicle while intoxicated.
Greg Willis, Willis Law Firm, Atlanta (Courtesy photo)
The Georgia Supreme Court’s unanimous opinion Monday barring a drunken-driving defendant’s refusal to take a blood test from being used as evidence at trial is being portrayed as a bombshell ruling threatening to undermine law enforcement’s ability to keep impaired drivers off the road.
In fact, as Justice Keith Blackwell noted during oral arguments last year, an array of amicus briefs filed by the Office of the Attorney General, Prosecuting Attorneys’ Council of Georgia and district attorneys from Cherokee, Gwinnett and Athens-Clarke counties weighing in to support the state’s implied consent law presented a “sky is falling” scenario if the justices ruled exactly as they did.
But the lawyer who argued and won the case said he believed the outcome was likely all along.
“I would like to say that this was some magnificent legal work, but it’s really just straight black-letter law,” said Willis Law Group principal Gregory Willis. “My entire argument was that the Georgia Constitution has been interpreted this way since 1879. Every one of our constitutions has used the same language.”
Willis’ client, Andrea Elliott, was stopped by Athens police in 2015 and charged with driving under the influence of alcohol and other offenses. She was read the Georgia “Implied Consent Notice,” which notifies drivers they are required to submit to blood, breath or urine tests. Drivers also are told that refusal to comply can result in their license being suspended and that refusal can be offered as evidence at a criminal trial.
Elliott refused to take a breath test and was arrested and jailed.
Her lawyer filed a motion to suppress the evidence, which the trial court denied.
During oral arguments last April, Willis argued that the use of Elliott’s breath test at trial was a violation of her constitutional protections against self-incrimination under the U.S. Constitution’s Fifth Amendment and the Paragraph XVI of the Georgia Constitution.
Athens-Clarke County Chief Assistant Solicitor William Fleenor argued the requirement to take a test is not a “coerced action” but is instead part of the agreement between a driver and state laying out the duties and obligations necessary to drive in Georgia.
If the justices did feel there might be constitutional concerns, he said, the state has a compelling interest in keeping impaired drivers off the road. The statute is narrowly tailored to meet that interest and thus meets the “strict scrutiny” necessary to pass constitutional muster, he said.
Fleenor’s arguments were met with skepticism, particularly an assertion that his office could find no case law asserting the Fifth Amendment is a “fundamental right” that can be subjected to strict scrutiny.
Monday’s 94-page opinion overruling the lower courts harkened back to a 2017 ruling inOlevik v. State, S17A0738, that said forcing someone to take a breath test was unconstitutional.
Monday’s opinion, penned by Justice Nels Petersen, said Georgia’s Constitution actually goes beyond the U.S. Constitution’s guarantee against being forced to testify against oneself.
“Based on the well-established meaning given to the constitutional right against compelled self-incrimination and carried forward into subsequent state constitutions, we concluded that a breath test is an act incriminating in nature and, therefore, Paragraph XVI prohibits the State from compelling such a test,” according to the opinion.
Such evidence may not be introduced in a criminal trial, Petersen wrote, although he observed that the General Assembly may want to “revise the provisions of the implied consent law, particularly the content of the implied consent notice.”
Willis said he was encouraged by the justices’ strong reaction during oral arguments to the state’s suggestion that the Fifth Amendment may not be a fundamental right but also by the fact that it has no case law supporting its position.
“The argument really comes down to self-incrimination,” Willis said. “If you look at what the Fifth Amendment and Paragraph XVI protect, the rights are very similar. The state could not provide a single case under the Fifth Amendment or state Constitution where someone invoked their right prior to trial, and it was still submitted as evidence.”
“Whether it’s the right to not to blow into a machine, give a handwriting sample … they could not provide a single example,” he said. “They asked the court to reverse an unbroken line of cases back to 1879 and prior to that.”
The opinion noted that a blood or urine test can still be obtained if an officer gets a warrant, which happens “every day,” Willis said.
“I’m of the opinion that this implied consent warning should have been changed years ago,” Willis said.
“They need to take out that section about Georgia law ‘requiring’ you to submit,” he said. “You have a constitutional right to refuse testing.”
“I’m just proud of our Supreme Court for empowering the law as required,” he said.
Athens-Clarke County Solicitor Carroll Chisholm said officers there will adjust their procedure for DUI arrests accordingly.
“Our local law enforcement will continue to enforce the DUI laws here in Athens-Clarke County,” said Chisholm in an email.
LAGUNA BEACH, CA —If you live in Laguna Beach and plan to go out and about over the weekend for Super Bowl LIII parties, consider yourselves warned. On Sunday, the California Highway Patrol and other law enforcement agencies plan to be out in force to look for impaired drivers.
CHP officers, along with personnel from other law enforcement agencies throughout Orange and Los Angeles County, will be conducting saturation patrols and staffing sobriety checkpoints to nab suspected drunk or drug-impaired motorists.
“Impaired driving is not only irresponsible, but it can also destroy lives,” CHP Commissioner Warren Stanley said. “Choosing to get behind the wheel while under the influence can result in arrest, injury or death. If you drink or use other impairing substances, do not drive.”
According to Stanley, CHP officers arrested 352 people statewide on suspicion of DUI during last year’s Super Bowl Sunday crackdown.
Seven people died and 134 others were injured in alcohol-fueled collisions investigated by the CHP, figures showed.
“Have a plan in place before the game,” Stanley said. “If you will be consuming alcoholic beverages or using other substances that may affect your ability to safely operate a vehicle, make the smart choice to use public transportation, a designated driver, or a ride-share service to get home.”
Anti-DUI operations are generally scheduled between 1 p.m. and 11 p.m. Sunday, covering the hours before, during and well after the conclusion of Super Bowl LIII, which is scheduled to begin about 3:30 p.m.
Officials offered the following tips to people planning to host Super Bowl parties:
ensure guests have a designated driver or can arrange for ride-sharing;
serve plenty of food and non-alcoholic beverages at the party;
stop serving alcohol before the end of the game’s third quarter
take the keys away from guests showing signs of impairment, then call them a cab or arrange for alternate transportation.
Plus, if you watch the game in Los Angeles County, Ride Share services, such as Uber, planned a campaign offering an “Unhappy Hour” for fans in the city of losing teams.
Under state law, anyone with a blood-alcohol level of .08 percent or higher is considered impaired.Penalties for anyone convicted of a DUI offense can include suspension or revocation of driving privileges, steep fines, jail time and prison if there are injuries involved.”Millions of people will be watching the Super Bowl at parties and bars across the country,” Long Beach Police Lt. Kris Klein said. “Don’t put others at risk because you chose to break the law and drive impaired.”
Klein reminded motorists that driving under the influence “doesn’t just mean booze.
DWI cases often begin with a driver being stopped at what is referred to as a DWI checkpoint. From the standpoint of defending drivers charged with Driving While Intoxicated, there are important Constitutional issues arising from a checkpoint stop that should be considered.
As a basic Constitutional principle, individuals acting on behalf of the State such as Police Officers and State Troopers, cannot stop motor vehicles unless they can justify the stop. Both the United States and New Jersey Constitutions require that the State demonstrate a reasonable and articulable suspicion that the law has been violated before an officer can intrude upon the driver’s right to travel without State interference. Simply stated, the State has to make some showing that a law has been violated before a car can be stopped. If not, the State will be prevented from having evidence acquired as a result of that stop considered by the court. In the case of a DWI prosecution, this could include evidence of the driver’s intoxication, which could be crucial to the State’s ability to prove the driver’s guilt.
Obviously, cars stopped at DWI checkpoints are not stopped because of a motor vehicle violation. Rather, they are stopped simply because a checkpoint has been mounted at a particular location, on a particular date and at a certain time. This would seem to be at odds with Constitutional requirements. An exception to the unusual standard has been provided by United States and New Jersey court decisions holding that checkpoints meet Constitutional standards if certain requirements are met.
Firstly, the checkpoint must be under control of a superior officer who has organized the checkpoint so it meets Constitutional and safety standards. The United States Supreme Court determined some time ago that cars cannot be stopped without a prior plan being approved and put into effect by superior officers.
More important is the requirement that the checkpoint be placed at a location where intoxicated drivers are expected to pass through, based upon prior police experience. This, in turn, must be based upon objective data which demonstrates occurrence of prior DWI arrests and accidents where intoxication is a factor, in the vicinity of the DWI checkpoint. In other words, the State must demonstrate a reasonable expectation that intoxicated drivers will pass through a certain location at a particular time, based upon data reflecting this experience.
Before an attorney or prosecutor reaches the question of a driver’s intoxication then, the attorney and prosecutor must consider whether the checkpoint leading to the stop, was justified the stop in the first place. This means obtaining all documentation which was created, leading to the checkpoint in question, including data which the State relied upon in choosing the date, time and location. Obviously, this information must be carefully reviewed to determine whether Constitutional standards have been met. If not, evidence of intoxication will be excluded.
The viability of the checkpoint will be the product of the effort made to justify its existence, before a single drive passes through. The quality of the underlying police work, therefore, is crucial in determining whether the checkpoint meets Constitutional muster and results in suppression of evidence. I have seen officers go to great ends to gather this data. Even when this is the case though, problems can arise for the State.
I was involved in a case not long ago where the officer, who was bright and capable, went to great efforts to ferret out the necessary data to justify the checkpoint time and place. Close analysis of the data however, suggested that the officer’s decision was questionable.
The defense attorney’s first job in this type of case is to acquire all of the data upon which the officer and State is relying. The next job is to evaluate, analyze and make sense of that data. To do so, all of the records of prior DWI and drug related investigations leading to arrests and accidents in the immediate vicinity of the proposed checkpoint site, must be evaluated to determine the frequency of these events. This is done with an eye to determine whether a correlation existed between the proposed site, date and time of the checkpoint and these previous events.
After putting this information together, some surprising results became clear. Firstly, the data showed that only four DWI related events over the prior 10 years occurred in the immediate vicinity of the proposed checkpoint location. More than that, the month chosen by the officer for the checkpoint was one of the lowest months in terms of occurrence of prior DWI events. Indeed, a review of the data suggested a low probability that the particular site, date and location selected would be efficacious, that is, drunken drivers could be reasonably expected to pass through the checkpoint. That low probability was reflected in actual results from the particular checkpoint, where one single arrest was made for DWI, after almost four hours of stopping hundreds of cars passing through the checkpoint. Hardly efficacious, it would seem. But it got worse.
Due to our quaint tradition known as cross-examination, I was able at trial to delve beyond the data provided to get to what Paul Harvey referred to as “the rest of the story.” The rest of the story was simple. Notwithstanding all of the data obtained and what that data did or did not suggest, the officer set the date of the checkpoint so it did not interfere with his scheduled move into his new house! Data be damned … a man has to move when he has to move! Checkpoints can wait!
Lynn Haven, Fla. – A former prosecutor was arrested for the fourth time on DUI charges.
Richard Albritton III, was arrested by Lynn Haven Police earlier this week and appeared before a judge Thursday afternoon.
Circuit Judge Michael Overstreet ordered Albritton to sign up for a pre-trial release program. Under the terms of the program, there will be zero tolerance for alcohol consumption.
Albritton has never been convicted of DUI but he has been convicted of lesser charges stemming from DUI arrests.
However, according to court records in New York City Albritton is also currently facing a felony charge for “criminal possession of a firearm.”
In 2015 his license to practice law was suspended for 60 days by the Florida Bar.
That suspension came from a 2012 arrest for driving under the influence, possession of less than 20 grams of marijuana and possession of drug paraphernalia. According to documents obtained from the Bar Albritton accepted a new driver’s license even though he knew his license had been suspended. Albritton also signed a statement saying that his driving privileges had not been revoked.
A former Cal State Fullerton police officer was charged Thursday with driving under the influence while on duty on the campus.
Thomas Henry Higgs, 59, is facing misdemeanor counts of driving under the influence of alcohol and driving with a blood alcohol content of .08 percent or higher, court records show.
Prosecutors allege that Higgs showed “objective signs of intoxication” during a briefing at the college police department at about 8 p.m. on May 7, 2018. They also allege that he drove a marked patrol car around the campus with a blood alcohol content of .09 percent.
Higgs’ fellow officers notified their command staff, according to the Orange County District Attorney’s Office. Higgs was arrested that night, cited, released and driven home by another employee, Cal State Fullerton police Capt. Scot Willey said.
Willey confirmed that Higgs is no longer employed by the department. The captain said the department supported the OCDA investigation and the decision to file charges, but declined to comment further due to the ongoing court case.
Higgs worked for the Cal State Fullerton Police Department for 27 years, rising to the rank of sergeant, Willey said.
Prosecutors on Thursday sent Higgs a letter outlining the charges he is facing and ordering him to appear in court for an arraignment on Aug. 2.
If convicted, Higgs faces up to six months in county jail.
GALION – A Crawford County corrections officer was arrested for allegedly driving while intoxicated, aggravated menacing and having weapons under disability, according to court documents.
Jason Tupps, a more-than-20-year employee with Crawford County, was arrested July 9 in Galion according to documents from the Galion Police Department.
According to the dispatch activity blotter from Galion police, Tupps reported a woman rammed his vehicle and tried to run away. He reported holding her at gun point.
According to court documents, Tupps refused to take a DUI test.
“Officer Tupps is not guilty of the charges against him,” said Tupps’ lawyer Adam Stone. “We have serious questions about the manner in which this case was handled by the Galion Police Department and are investigating those issues presently.”
Tupps will be back in court for a scheduled appearance July 24.
The airboat that crashed last year in the Everglades, killing recent University of Miami graduate Elizabeth Goldenberg. Prosecutors this week decided they could not criminally charge the craft’s skipper. Miami-Dade State Attorney’s Office
A veteran airboat captain had a high level of marijuana in his blood when his boat flipped in the Everglades, hurling tourists into the swamp and drowning a recent University of Miami graduate pinned under the craft.
But nearly a year after the crash, prosecutors this week ruled out charging Steve George Gagne with any crime, including boating under the influence.
The reason: Witnesses said Gagne showed no signs of being high before the crash that killed 22-year-old Elizabeth Goldenberg, according to a newly released report by the Miami-Dade State Attorney’s Office. But the concentration of THC, the active compound in marijuana, in his blood was nearly triple what would have gotten him arrested in states where marijuana use is legal such as Colorado or Washington.
Florida has no such law and the case underscores the unsettled standards surrounding use of marijuana. Even as more states legalize marijuana for recreational or medical use, there is no consensus — in the law, science or medicine — on how best to measure whether someone is stoned while behind the wheel of a boat or a car.