When Amherst police last Sunday charged David A. Smith with driving while intoxicated after his motorcycle plowed into a group of pedestrians, killing two, they apparently were unaware that he had been convicted of drunken driving in Ohio seven years ago.
In the days since the fatal crash, however, investigators have continued looking into the Niagara Falls man’s driving record and, if it turns out Smith has any prior convictions relevant to the current case against him, additional charges – possibly felony drunken driving – could be filed. Such a charge could result in harsher punishment if convicted.
“We will, as we do in all cases, search computer databases … and contact particular states and counties to follow up,” Erie County District Attorney Frank A. Sedita III said Friday.
Already, it appears the 53-year-old Smith has a 15-year history of drunken driving arrests that span three states.
Smith was driving drunk, police said, when he veered off Tonawanda Creek Road at about 3:20 p.m. last Sunday and ended up on the Amherst bike path. Jocelyn B. Elberson, 25, of the Town of Tonawanda, and Sheila Pelton, 81, of East Amherst, were killed. Pelton’s husband, Foster, 79, was taken to Erie County Medical Center with serious injuries.
Smith was sent to ECMC and released Tuesday. He is now being held in Erie County Holding Center without bail.
Shortly after the crash occurred, The Buffalo News reported that Smith was convicted of driving while intoxicated in a 1997 incident on Grand Island and also pleaded guilty to felony DWI in October 2000 in North Tonawanda, according to court records.
Sentenced to five years’ probation and fined $2,500, he later was sent to jail for 30 days for violating his probation.
The News has since learned that Smith also was convicted of drunken driving in September 2005, in Belmont County, Ohio, where he had attended a country music jamboree a few months earlier. A sheriff’s deputy noticed Smith driving erratically on Route 40, not far from the West Virginia border, on July 17, 2005, according to police and court documents.
When Smith’s motorcycle was pulled over, his breath smelled of alcohol, and he could not walk a straight line or maintain his balance, police said. But Smith refused to take a Breathalyzer test.
Ohio police at the time checked their computers and learned of Smith’s two prior drunken driving convictions in New York. But under the Ohio laws in effect at that time, the priors didn’t meet the threshold required to charge Smith as a repeat offender. Smith was therefore charged as a first offender, police said.
When convicted of misdemeanor drunken driving, Smith spent three days in jail, was ordered to complete an alcohol treatment class and pay a $75 fine. He also was placed on unsupervised probation for a year, and forbidden from driving in Ohio for six months, court records show.
Ohio laws have since changed, said Sgt. Glenn Moore, with the Belmont County Sheriff’s Office.
Under current laws, Smith’s prior convictions would have been considered, and he would have faced felony drunken driving charges as well as stiffer penalties for refusing to take a Breathalyzer test.
After Smith’s 2005 Ohio arrest and conviction, the information would have been forwarded to a state office in Ohio, then to a nationwide criminal database. Moore said that just as Ohio learned of Smith’s drunken driving convictions in New York State, New York could get information on the charges filed against Smith in Ohio, Moore said.
But for whatever reason – whether because of a mistake or malfunction at the Ohio end, the New York end, or with the databases themselves – local officials in New York apparently were unaware of Smith’s Ohio conviction when Smith was arrested in Amherst last Sunday.
In fact, the New York State Department of Motor Vehicles, as of Wednesday, said Smith had a clean driving record, with no drunken driving offenses over the past decade. A DMV spokesman on Friday was looking into the matter. Amherst police did not respond to calls for comment.
In New York State, a drunken driving charge is elevated to a felony if it occurs within 10 years of another misdemeanor drunken driving conviction.
Smith was charged last Sunday with misdemeanor drunken driving and criminally negligent homicide, a felony. Depending on the details of Smith’s Ohio conviction, it’s possible he could end up also facing a felony drunken driving charge.
Without addressing the Smith case, Sedita said that in general, an additional felony charge could result in a harsher sentence. However, Sedita also said that, for a conviction in another state to be relevant in New York, the laws involved must be very similar. The similarity isn’t always readily apparent without researching details of the laws in both states, he said.
The Ohio arrest, nonetheless, wasn’t the end of Smith’s string of drunken-driving arrests prior to the Amherst crash.
Smith was charged in 2010 with drunken driving while in Florida. He again refused to take a Breathalyzer test. The drunken driving charge, however, was dropped after a related charge that led to the arrest – careless driving – was dismissed because the arresting officer used an incorrect statute when filing the charges, according to court officials.