Fox16 Investigates: DWI Dismissals

LITTLE ROCK, Ark. — Drunk driving arrest numbers have continued to fall across the state over the past few years, and some say that’s because people are choosing alternatives to driving when they drink. But some believe judge’s dismissing DWI cases at trial could be leading police to make fewer arrests.

 

Fox 16 Investigates taking a look at one court after concerns about dismiss, to see if the numbers are out of whack or why it might be impossible to tell. 

 

 

“I just wonder what was going on when he decided to get in the car and be intoxicated,” she said, swiping through photos of her demolished car from three years ago. 

 

Rodshelle Cole can’t recall the accident that left her in a coma for nearly a week, but she’s lived through the process of trying to find justice in the court system. 

 

“I didn’t ever get any of that,” she said. 

 

“You didn’t get those answers?” this reporter asked. 

 

“No,” she said. 

 

The driver, who police suspected of driving drunk, died before her case could ever be tried. He was facing felony battery charges and his case was labeled “dismissed” by the system. 

 

“I asked what does that mean about the case? Oh, that means it’s closed,” Cole said. 

 

Complaints in the Second District Court

 

Mothers Against Drunk Driving pays attention to the outcome of cases, and now it’s watching Little Rock’s traffic court in particular after complaints about DWI dismissals at large. 

 

“Concerns have been brought by individual officers in terms of patterns in the courts — the Little Rock traffic court in particular,” said state program director Pamela Sell.

 

Fox16 heard similar complaints, so we pulled the numbers on DWI cases inside judge Vic Fleming’s courtroom. From 2010-2015, 37 percent of all DWI cases were dismissed or acquitted by the court. That translates to 194 of 514 cases recorded. 

 

“We can see a certain percentage of cases being dismissed, but we don’t understand the reasoning behind it,” Sell said. 

 

Data from all Arkansas district courts on DWI cases is non-existent, or at least not readily available. The Administrative Office of the Courts could only provide us two others to compare. In Hot Springs, just shy of four percent of cases were dismissed, while Fort Smith hovered around 16 percent. 

 

“There’s just not enough information to know why you have higher numbers in certain jurisdictions than others,” Sell said. 

 

Judge Vic Fleming said he doesn’t focus on the numbers. 

 

“Each case is a brand new experience. I don’t pay attention to the statistics,” he said. 

 

Defense attorney and former police officer John Collins lost a family member to a drunk driver, but he still cautions against using percentages to draw conclusions on prosecutions. 

 

“No one wants drunk drivers on the road, but these are individual cases, they’re not statistics,” he said. “These are individual cases, and they have to be treated that way.” 

 

But if police are arresting all these drivers, how could so many cases fall through in the court system? 

 

DWI Cases: Discretion Needed?

 

“If prosecutors had the same authority they could get rid of what I like to call the ridiculous cases,” Collins said. 

 

According to Collins, one problem might be a lack of discretion on the part of prosecutors. Every DWI arrest either has to have a guilty plea or head to trial, whether the state can prove a person guilty beyond a reasonable doubt or not.

 

“They can dismiss charges on murder, and on rape. theft, drugs, but a DWI they can’t,” Collins said. “The judge becomes the gatekeeper. And I think that’s where many judges get a bad wrap. It used to be prosecutors had discretion to dismiss the ridiculous cases, now judges have to make that decision. “

 

In 2015, State Representative Marshall Wright, D-Forrest City, attempted to change the law to once again give prosecutors discretion for DWI cases, but it was pulled after it passed committee. MADD spoke out against the law change at the time, and remains opposed to that idea today. 

 

“It would essentially be gutting our DWI law,” Sell said. “We would have a lot of folks who were not feeling the full consequences of their choices and behavior.”

 

 

But Collins believes the way officers are forced to patrol for drinking while driving, and the tools they have on hand to make a judgment on scene, set them up to have a hard time proving a case the defense and prosecutors can pour over for months. 

 

Collins said he often demonstrates how breathalyzers can be misleading. He demonstrated how using a mouth spray, to perhaps try to hide any detection of alcohol, can give a misleading result of triple the legal limit on the machine. 

 

“There are many cases where a person might have one or two drinks with dinner. They get pulled over for speeding and they’re afraid the officer will smell alcohol, so they might use a mouth spray to hide that smell. By doing that, they’ve introduced alcohol in their mouth and the officer would have no idea to ask or think the reading was inaccurate,” Collins said. 

 

Collins also pointing to the accuracy rate of field sobriety testing, which ranges from roughly 60 percent to 80 percent even if the officers’ conduct the tests perfectly. 

 

“I just can’t see a judge’s dismissal rate being lower than the very margin of error of tests being presented as evidence,” Collins said. “And that’s not the fault of police. They have to err on the side of caution and they usually have 15-20 minutes to make a decision of whether or not to take this person off the street.” 

 

Collins said that is what sets up an uneven playing field. Police have a limited amount of time on scene, without the benefit of time to review medical records or other factors. When the case goes to trial, the evidence that supported an arrest based on probable cause can fail to secure a conviction based on evidence beyond a reasonable doubt. 

 

“There’s a lot of people arrested who should have been arrested because of the circumstances and the need to keep people safe,” he said. “But once they’re fully vetted they simply weren’t guilty.”

 

 

According to Sell, there’s been no data they can find to show that individuals being arrested for DWI are having a high number of cases dismissed because BAC’s or other factors are below the legal limit. But they do note that a lack of data leaves blanks in drawing conclusions. 

 

“There just isn’t enough information to know what’s going on,” Sell said. “We don’t know the reasons behind dismissals because we haven’t been able to effectively track cases. So, there may be an issue of officers following procedures or other issues when it comes time for trial. We want to look and see what’s needed for the police, prosecutors and judges at that level.”

 

Officers must have probable cause to arrest a person, but when it reaches Judge Fleming, prosecutors have to prove guilt beyond a reasonable doubt. And Judge Fleming must be the finder of fact in cases when DWI’s do head to trial, because a jury trial can only come on appeal to the circuit court level.

 

“You weigh the facts and you determine whether the admissible evidence rises to that or doesn’t. If it doesn’t you have to dismiss,” he said. “The fact that you did the right thing at the time, doesn’t mean all the proof is going to come together in court. It doesn’t always.”

 

Data provided by Fleming’s court administrator shows that from 2010-2015, 85 percent of the cases that went to trial resulted in a dismissal from Fleming. That’s roughly 60 of nearly 400 cases dismissed once they reached trial stage. 

 

“Sometimes you think you have it locked and you don’t. That’s the judicial system. and you have to have faith in it,” said Sgt. Roger Snook of the Little Rock DWI Unit. 

 

When we spoke with the unit back in February, Snook said safety comes first and the chips must simply fall where they may when it reaches the courtroom. 

 

“I would much rather pull someone over, arrest them and know I did the right thing — go to court and lose than do a death notification,” he said. 

 

MADD has applied for grant funding for a court monitoring system that might allow the organization to see patterns and trends in dismissed cases. According to the organization, it would begin by analyzing courts that have a high number of DWI cases and also those who have higher dismissal rates. The idea is to identify possible gaps in training or procedure that make it tougher to get convictions in some cases. 

 

“The question we want to answer is why are cases being dismissed? We would actually be putting strong numbers on that and see the patterns by tracking individual cases through the system,” Sell said. 

 

Collins has suggested bringing the state into a jury system for DWI cases, where six-person juries would be seated for every trial. 

 

“If we’re concerned about individuals, that is prosecutors or judges, being too easy on drunk drivers then let’s put it to a jury system. The people who are going to complain will complain. That way, they can complain that juries of normal people are taking it too easy on drunk drivers.” 

 

Sell, saying MADD would be opposed to a jury system, believing individuals who don’t have a background in the law would have a harder time distinguishing the facts in these cases. 

 

Despite their various perspectives, everyone we spoke with agree that no one wants to see a drunk driver do irreparable damage like what Rodshelle Cole experienced. But finding the right balance to ensure justice for all can be a collision course where lives hand in the balance. 

 

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Fox16 Investigates is committed to uncovering truth and problems people face across Arkansas. If you have a story that needs to be investigated, call Investigative Reporter Marci Manley on the Investigations Tipline at (501) 340-4448 or email at investigations@fox16.com