Prosecutors seeking stiffer penalties for drivers who cause deadly crashes


AUSTIN (KXAN) — Last year in Austin, there were 25 fatal drunk-driving-related crashes. In an effort to hold more drivers accountable for their deadly behavior on the streets, the Travis County District Attorney’s Office recently created a new team to aggressively work on prosecuting vehicular crimes.

“Basically everyone in our community is a potential victim of one of these cases. So, the threat to everyone is very real. It’s very concerning,” said Matthew Foye, an assistant district attorney who prosecutes vehicular crimes as part of the Vehicular Crimes Special Prosecutions Unit. “This type of crime is entirely preventable.”

From 2013 to 2017, there have been 158 felony fatality cases resolved in Travis County. However, only 67 cases – a little more than 40 percent – have been prosecuted to a verdict or a plea. A bulk of those prosecutions took place just last year when the new administration took office.

Foye heads up the revamped unit, alongside a second recently designated assistant district attorney, Allison Tisdale. The two are on call 24 hours a day, seven days a week as liaisons for any vehicular crime that takes place in Travis County. The message they want to send to drivers?

“If you commit a vehicular crime in this county, and your conduct fits under a felony statute we will prosecute you. We will hold you accountable before the community,” said Foye. “Drunk driving and fatalities are an epidemic and we need to take these more seriously,” added Tisdale. “We need to make sure that more people are held accountable.”

Foye says his team’s work begins on the scene of a crash, where they lay the groundwork for cases that make it to court.

“You have the scene itself an accident reconstruction and anything physical form the vehicle. You have possible chemical evidence, blood alcohol samples that have intoxication, you have witnesses to talk to,” he said. “If we can create more thorough investigations with stronger evidence, then when we present these cases to the jurors, they would be maybe more likely to give a harsher sentence.”

Charges the unit handles include failure to stop and render aid involving death, criminally negligent homicide and intoxication manslaughter. The punishments for these crimes, however, have long been under scrutiny in Travis County.

Travis Co. Felony Vehicular Fatality Cases Resolved  
2013 1 7

“Travis County does not have a good track record when it comes to sentencing drunk drivers who kill people,” Greg Van Court told KXAN in 2014. The pastor at Dayspring Fellowship Church spoke to the media the day Terri Elmore was sentenced to eight years in prison for intoxication manslaughter in a crash that killed Jackson and Barbara Boyett. The couple led that congregation before the crash that took their lives.

Elmore was sentenced to four years in prison on each count and a $10,000 fine, with recommended probation on each of the fines. During closing arguments, prosecutors told the jury the moral compass in the Travis County community is broken when it comes to drunk driving and their decision would have an impact. Elmore’s attorneys, however, called the punishment “harsh,” saying the former paramedic and mother of five should have been sentenced to probation.

Critics of punishment for fatal vehicular crimes often point to the 2013 sentencing of Gabrielle Nestande, a former legislative staffer. In a 2011 hit-and-run crash, Nestande killed Courtney Griffin, 30, a nanny out for an early morning walk in west Austin.

Nestande was found guilty of criminally negligent homicide, but not guilty of the more serious charge of intoxication manslaughter. She was also found not guilty of failure to stop and render aid. A jury sentenced Nestande to probation.

The 2012 crash by drunk driver, Madeline Rackley, has a similar case history that also received harsh criticism. Rackley served 10 days in jail after pleading guilty to aggravated assault with a deadly weapon.

Gabrielle Nestande. (Austin Police Department)

Police determined Rackley was intoxicated and had left Lustre Pearl on Rainey Street before driving into Lady Bird Lake. Rackley and one of her passengers were able to get out of the car, but Rackley’s other passenger, Jarrett Whittington – who was sitting in the backseat of her car – drowned. Dramatic video from police showed the scene that night.

Foye says the community is trending toward stricter prosecution and harsher punishments for deadly felony vehicular crimes.

That was the case in December 2017 when a jury sentenced Shawn Amende to 28 years in prison for killing Maleeca Smith, 20, in 2015 after he got behind the wheel drunk in north Austin.

“Today’s verdict is one that we’re pleased with – just the simple fact of him going off in handcuffs is a beautiful thing to me,” said Gregory Harrington, Smith’s uncle, that day in court. “We hope that he’s behind bars for a long time just so he can’t impact the lives of anybody else negatively like this.”

“We try to be responsive to what we think the community standards are and the way that that is best communicated in our criminal justice system is when juries have opportunities to hear cases and to render verdicts,” said Foye. “We look at past jury trials and past jury verdicts on punishment in different types of cases to see what do juries tend to do historically, and then we will kind of use that as a starting point for when we have to make a punishment recommendation on our own.”

Because every case is different and dependent on a variety of factors such as a suspect’s criminal history or the victim’s family’s request, Foye says plea deals are necessary in some cases. “One of the primary roles of the prosecutor is to assess the likelihood at trial of getting a conviction in the first place,” he said.

Some of those factors are what prosecutors considered in Michelle Orduna’s case. After accepting a plea deal, earlier this month, Orduna, 25, was sentenced to nine years in prison for driving drunk and killing two people on Aug. 29, 2015. Clayton Keller, 26, and Orduna’s best friend, Megan Mendez, 23, died in the wrong-way crash. Police say Orduna’s blood alcohol content at the time of the crash was .17.

At her sentencing, Mendez’s parents addressed Orduna face-to-face, telling the woman they have forgiven her. “I wish the outcome of the sentencing would have been different. Something that required you to do some community service with public speaking rather than prison time,” said Linda Mendez, Megan’s mother.

“There was no malice, no intent, no premeditation to commit this act, as it was an accident. I know Michelle made a mistake and our system of justice requires accountability. Should Michelle have been driving that night? Probably not. Did she make a bad decision? I think we know the answer,” said Joseph Mendez, Megan’s father.

‘Even one life lost because of someone’s recklessness is absolutely unacceptable.’

While one family thought the sentence was too harsh, the other victim’s family didn’t think the sentence was harsh enough.

“You are living with a nine-year sentence while we are stuck here living a life sentence,” said Keller’s wife, Sarah Keller, at Orduna’s sentencing. “How drunk you must have been to be driving on the wrong side of the highway. I hope you know that you’re getting off extremely easy. There are people that are serving a lot longer sentences than you that have done the exact same thing.”

Keller’s mother Ali Gonsalves called Orduna’s decision to drive drunk a “foolish tragedy.” “Please do not let this case or any other cases be treated lightly,” said Gonsalves.

As part of the deal, Orduna pleaded guilty to one count of intoxication manslaughter – a second-degree felony. The charge carries a range of 2-20 years in prison or 2-10 years probation. Orduna could be eligible for parole in four-and-a-half years.

Foye says the goal of this unit, as it progresses, is to realize the desires of the community when it comes to punishment and to prevent more tragedies for other families in the future.

“A lot of the efforts that we’ve been working on in vehicular crimes special prosecution have been to kind of raise those initial punishment recommendations,” he said. “Even one life lost because of someone’s recklessness is absolutely unacceptable. It’s not worth it. It’s entirely preventable. This type of crime is entirely preventable.”

Because of Courtney Griffin’s death, Texas lawmakers changed the laws for hit-and-run crashes in 2013. Lawmakers increased the penalties for those crashes when someone dies.

SB 275 increased a failture to stop and render aid charge to a second degree felony in cases where a death occurs, similar to that of an intoxication manslaughter charge. The maximum penalty for the felony is 20 years. Prior to the change, the charge only carried a maximum penalty of 10 years in prison.

The hope behind the legislation was to offer an incentive for drivers involved in such crashes to stay on scene of a crash.

When the legislation was being drafted, Griffin’s father, Bart Griffin, told KXAN he believed leaving the scene of the accident turned out to be beneficial to Nestande’s cause because no breathalyzer or blood test could be conducted.

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