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News10NBC Investigates: Toxicology delays cause judges to throw out drunk driving evidence

March 15, 2018 06:09 PM

The onslaught of drug overdose cases in Monroe County is now starting to affect how much punishment drunk drivers are getting. It's taking so long to get comprehensive blood alcohol results to the District Attorney's office and defense lawyers that some judges have started throwing out the evidence.

DWI attorney Ed Fiandach took me through a stack of cases laid out on his conference room table. He said it took six months to a year to get the complete blood alcohol evidence results in the cases. In two of the cases, the material was never provided.

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In one case, the defendant was offered a reduced charge.
In the others, the defendant was found not guilty, the blood evidence was precluded (legal term for thrown out), one case is pending and another trial was adjourned.
The reason is the back up material used to process the DWI blood alcohol test took six months to a year to get processed.
  
Ed Fiandach, DWI defense attorney:
And without that data you have no possibility of determining the reliability of the results.

Monroe County District Attorney Sandra Doorley says her office has had to offer plea deals on drunk driving cases they would rather prosecute.
  
Brean:
So you're talking about plea bargaining with alleged drunk drivers who should be getting a tougher penalty than they are getting.
Sandra Doorley, District Attorney: Absolutely. But you know what? When we have a case we know is going to get dismissed by a court because we can't produce the evidence sometimes it's better to take a Driving While Ability Impaired or if it's a felony, it's better to take a misdemeanor than have that case be dismissed.

All the blood evidence in DWI cases goes to the toxicology lab at the Monroe County Medical Examiner's office. Right now there are five toxicologists, one technician and a supervisor. 
Last fall, the county legislature approved the money for two more toxicologists.
The jobs are not filled yet.
  
Brean:
When can you fill those positions?
Cheryl Dinolfo, Monroe County Executive: So the 2018 budget funded two additional toxicology positions. We are very pleased about that. Those jobs are posted. We've had over 20 applicants who are fully qualified.

County Executive Cheryl Dinolfo says the hires will be made in the next few weeks.
   
Brean:
When next year's budget comes up, can you find the money to hire two more people?
Cheryl Dinolfo, Monroe County Executive: So as I said, when our two new toxicologists come on board which will be in the next couple of weeks we'll continue to look at what those case loads have for our county residents for our toxicology department and we'll take additional steps if that is warranted.
 
The County is also kick starting a toxicology and pathology program at the UofR.

Ed Fiandach, DWI defense attorney: The implication to the community - if you're charged, if a blood test was taken, it's going to hold your case up five, six, seven months longer than it should have been held up. The other implication for the community is that people who are legitimately guilty may very well be let go as a result of a failure to furnish the material.

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