Anti-drunk driving advocates are upset by a NBC 4 New York report that found drunk drivers charged with a felony under Leandra’s Law are being allowed to plead to misdemeanors, or less, at an increasing rate.
“It baffles me and angers me at the same time,” said Richard Mallow, director of Mothers Against Drunk Driving New York. “If you make a rule and then you don't enforce it, people don't care,” he said.
Leandra’s Law, named for 11-year-old Leandra Rosado who died in a 2009 car accident with a drunk mother behind the wheel, was passed in 2009.
It was hailed in the state senate as “the toughest in the nation” as it allowed a felony charge for drunk drivers transporting passengers age 15 and under. But prosecutors have leeway in court and data obtained from the state show they’re increasingly using it.
According to data provided by the New York State Division of Criminal Justice Services, 69.5 percent of drivers statewide charged under Leandra’s Law were convicted of a felony in 2011, the first full year of cases in court. But the felony conviction rate has steadily declined – to 52 percent in 2016.
During the same period of time, convictions on misdemeanors and non-criminal offenses have soared to 48 percent of drivers in 2016.
“I’m shocked,” said Lenny Rosado, who fought for passage of the law in his daughter’s memory. “That's not what I pushed for. That’s not what it’s supposed to be. It’s a felony.”
In New York City only 39.5 percent of drivers charged under Leandra’s Law are convicted of felonies.
While Kings County (Brooklyn) beats the state average with a 64.8 percent felony conviction rate and New York County (Manhattan) is right at 50 percent, the others are far below: Queens (35.5 percent), Bronx (18.6 percent) and Richmond (9.3 percent).
“We take the crime of drunk driving very seriously, especially in these instances when a child is present in the vehicle. Each case that comes into this office receives individual attention, and our prosecutors strive to hold DWI defendants accountable for their actions,” said a spokesman for the Richmond District Attorney in a statement to the I-Team.
The Bronx District Attorney went further, explaining there’s a good reason for a lower felony conviction rate.
“In some cases we give first-time defendants a chance to enter a treatment program and if they successfully complete it, they plead to a misdemeanor and the felony is dismissed,” the Bronx DA’s Office said in a statement.
The Queens District Attorney had a similar explanation, also in a statement.
“The reason why we have a higher number of misdemeanor convictions as opposed to felony convictions is because we view our primary goal in prosecuting DWI cases as modifying drivers’ behavior so they won’t repeat their mistake.
“As such, we offer rehabilitative treatment through the Queens DWI Court for defendants who are arrested for the first time – including Leandra’s Law violators provided there were no associated physical injury to anyone in the vehicle at the time of arrest.”
Rockland County Judge Charles Apotheker said authorities have had success with a similar program that allows people charged with a felony under Leandra’s Law to go through intense rehabilitation and supervision in exchange for a misdemeanor.
“It is a very tough program. Much tougher than putting people on probation or putting them in jail. And the success rate is incredible,” he said. “Once we started treating the underlying causes, which is alcoholism … we were able to get people sober and stay sober.”
Attorney Brendan Ahern, a former Nassau County prosecutor who handled drunk driving cases, said there are many factors in plea agreements.
"What they are inevitably striking is a balance between how they will handle a first time offender charged with a felony and whether they will allow them to get a reduction to a misdemeanor," he said.
But that doesn’t satisfy Mallow.
"It's really how hard is the district attorney or its staff going to push the envelope to make sure these laws are abided by," he said.
As evidence he pointed to nearby counties with Leandra’s Law conviction rates that are among the highest in the state: Nassau (87.4 percent), Suffolk (81.9 percent) and Westchester (79.8 percent).
“We're depending on the DA's that if you get arrested for a DWI with children in the car, there are going to be consequences," he said, vowing to now go after counties will low felony conviction rates. “All of the DA's below 50 percent are going to get a call from MADD."
Lenny Rosado will be working with him.
“I feel the court system is not doing their job, period,” he said.
“Now I got another mission. [Leandra] didn't die in vain, we created a law to protect other children in vehicles, Rosado said. “I didn't want another family to lose a child in this way.”