• State willing to pursue murder charges against impaired drivers
     | April 01,2013

    Charges of murder brought against drunk or impaired drivers have been extremely rare in Vermont, but that may be changing, according to prosecutors and defense attorneys.

    To date, only one person has been convicted of murder in a case where a drunk or impaired driver claimed the life of another. That case, involving Timothy Dowd, ended last year when the 54-year-old Hinesburg man accepted a plea deal that sent him to jail for 10 years for causing the death of a Burlington woman on Dec. 26, 2010.

    A year after Dowd pleaded guilty to the murder of Kaye Borneman, whose car he struck while trying to elude police during a high-speed chase in downtown Burlington, prosecutors in Rutland charged Alex W. Spanos with murdering 17-year-old Rutland High School student Carly Ferro.

    Ferro died in a crash on Cleveland Avenue in September. Police say Spanos, 23, was huffing from a can of Dust-Off to get high when his Toyota Camry crashed at high speed into a row of parked cars outside Rutland Discount Foods.

    Dowd and Spanos are the only two drunk or impaired drivers to be charged with murder in the state, according to prosecutors and defense attorneys, and there is only one case where a sober driver was charged with murder in a crash.

    There are several reasons why murder charges haven’t been brought against drunk or impaired drivers in the past, starting with the fact that other criminal charges have been used in vehicular killings in the past.

    Charges such as gross negligent operation with death resulting and involuntary manslaughter don’t require an intent to kill on the part of the driver — a condition always required for first-degree murder and often required for second-degree murder — and the 15-year maximum jail sentence for convictions represents a substantial penalty.

    “In just about every case in the past those charges have fit better,” said Robert Sands, the former Windsor County state’s attorney.

    What’s changed in recent years, not only in Vermont but nationwide, is a willingness on the part of prosecutors to pursue second-degree murder cases that don’t require an intention to kill, Sands said.

    While first-degree murder cases always require premeditated and deliberate acts, the second-degree charge allows for juries to convict in cases where a defendant acted with “wanton disregard of the likelihood that death or great bodily harm would result.”

    The bar for proof in those cases remains high, Sands said, with prosecutors required to show that the defendant’s actions were extremely dangerous and that the person knew it.

    “We’re not talking about just ordinary recklessness — it’s extreme reckless conduct with total disregard for human life,” he said. “The textbook example is someone shooting or driving into a crowd.”

    Sands said he judged the conduct of a New Hampshire man, Eric Daley, to meet that threshold when he charged him with second-degree murder in the death of Vermont State Police Sgt. Michael Johnson.

    Johnson was killed on June 15, 2003 ,after he laid spikes along Interstate 91 in Norwich. The spikes were supposed to stop Daley’s car. Instead Daley, who police said was sober as he drove at speeds of nearly 120 mph in an attempt to flee police, drove into the median and struck Johnson.

    “He was weaving in and out of traffic on the interstate while attempting to elude police,” Sands said. “It wasn’t quite like driving into a crowd but it was close.”

    Daley later accepted a deal and pleaded guilty to involuntary manslaughter and a number of other charges and was sentenced to serve 26 to 33 years behind bars.

    In Dowd’s case, prosecutors pointed to a history of drunken-driving arrests to show that he knew his conduct was reckless. In Spanos’ case, prosecutors have been tight-lipped, although a key witness deposed last week told police he saw Spanos almost knocked unconscious while inhaling from a can of Dust-Off just days before the crash.

    The legal avenues available to prosecutors only partly explain why murder charges are beginning to appear in Vermont and have been increasing for years in other states, prosecutors and defense attorneys said.

    From the perspective of David Sleigh, a St. Johnsbury attorney with a broad background in homicide and drunken-driving defense cases, the change in the law has more to do with changes in the way society views drinking and driving.

    “It’s a change in societal attitudes,” he said. “Society was quasi-tolerant of it years ago. Now, it’s fairly aberrant behavior. I think the prosecution perceives that the citizenry is alarmed …. Any (DUI fatality) case could be charged as murder.”

    But whether charges should reflect public views is another matter, according to state Public Defender Matthew Valerio.

    “The bottom line is that most of these cases are at worst negligent homicides,” he said. “They’re not going out looking to kill anyone. To charge them with murder is more a reaction to the result than the intent to kill.”

    Valerio added, “From the victim’s perspective I understand completely — the result is the same whether a driver meant to kill someone or not. The difference is that the law defines culpability differently based on intent. When you start arguing emotionally, it gets very difficult to determine a threshold in these cases that the law allows.”



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