Wednesday, March 12, 2008

Judge Dismisses Major Charge Against Davis

A Scotch Plains judge tossed out a charge Wednesday (March 12, 2008) that Plainfield Third Ward Councilman Don Davis refused to take a Breathalyzer test after a March 28, 2007 DUI stop.

Judge Antonio Inacio based the dismissal in part on Plainfield’s failure to submit records requested by Davis’ attorney James Trabilsy, who also sought proof from Fanwood that the testing equipment there was in working order and that all officers involved were properly certified to administer the test.

According to state motor vehicle laws, obtaining a driver’s license carries “implied consent” to take the test if arrested on DUI charges. Refusal carries very heavy penalties, including loss of the license for up to one year, multiple stiff fines and attendance at an Intoxicated Driver Resource Center.

When Davis was stopped in Plainfield nearly a year ago, he was taken to Fanwood for the test because the city’s equipment wasn’t working, Trabilsy said. The attorney said he asked Plainfield authorities on April 10 to preserve dispatch tapes from March 28. In early December, Trabilsy asked Inacio to sign an order giving the two municipalities 45 days to come up with 34 other items related to the case. Scotch Plains Prosecutor Thomas Russo issued reminders to both Jan. 16 that the deadline was approaching.

But Trabilsy said he only got some documents from Fanwood and none from Plainfield. The request apparently “fell through the cracks,” he said.

Russo said he knew Trabilsy made the April request to save the tapes, but he said the case was first listed on the docket “many months after that.” (As is common practice with charges involving elected or appointed officials, the case was moved out of the councilman’s hometown.) Russo said he had no knowledge of the existence of the case until last fall.

“I don’t know what happened to the tapes or whether they were preserved,” Russo said.

The attenuated timeline was due in part to Trabilsy’s three-month hospitalization for a kidney transplant after he was hired to defend Davis.

Trabilsy said Wednesday the information he requested, but did not get, was necessary “to
show everything was proper” had Davis agreed to take the test. He also cited a 1992 case that resulted in the Appellate Court outlining “a procedure for everyone to follow” to rule out judges’ arbitrary decisions in such situations.

In one testy moment, Inacio asked what if a defendant refused to take the test and the equipment wasn’t working properly, but Russo said, “That’s not the case.”

Inacio then reviewed the timeline of the case, saying the duration actually worked in favor of the municipalities by giving them more than 45 days after he issued the December order.
“What is it that Mr. Trabilsy is supposed to do, cartwheels? Stand on his head? What is Mr. Russo supposed to do, beg for it?” Inacio said.

He then dismissed the charge of refusal to take the test, based on failure to comply with the Dec. 5 order.

Davis must return to court on three other charges arising from the incident, including driving under the influence and failure to show proof of insurance. He was accompanied in court by his wife, Rose. Three top officials of the Plainfield Municipal Utilities Authority, to which Davis is council liaison, also attended.

Davis is completing a four-year term on the council and must file for the June primary by April 7 to seek re-election as a Democrat.

--Bernice Paglia


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