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Alleged drunken driver's defense may depend on expert witness he can't afford

By Howard B. Owens

If it's going to take an expert witness to help Ronald J. Wendt beat the 12 felony charges against him, it's going to take money.

His attorney, Thomas Burns, says Wendt is "tapped out."

Sitting in jail, unable to earn money, Wendt cannot afford the thousands it would cost to bring in an expert in field sobriety tests and breathalyzers to help challenge the charge that he was driving drunk Aug. 12 when he was involved in an accident that took the life of Dansville teenager Katie M. Stanley.

County Attorney John Rizzo filed papers this week opposing a motion by Burns for the county to pay for the expert.

"I understand Mr. Rizzo's concern regarding the taxpayers," said Burns today, "but this is fundamentally at the heart of our defense. It is very important to us."

Wendt appeared in court today -- dressed in Genesee County Jail orange and with his head shaved -- for a hearing on motions by Burns that arresting officer Deputy Tim Wescott did not have sufficient probable cause to charge Wendt and to suppress statements made by Wendt to Wescott.

County Court Judge Robert Noonan denied both motions and set a date for a week-long trial.

Jury selection will start July 12 at 9 a.m. 

Noonan set May 24 as the plea-offer cutoff.

District Attorney Lawrence Friedman said the offer he's made to Wendt is to reduce the aggravated vehicular homicide charge -- with a maximum penalty of 8 to 25 years in state prison -- to aggravated vehicular manslaughter. The reduced charge could still result in a more than two-year prison sentence, and up to seven years.

Burns said after the hearing that he expects the case to go to trial. The bottom end of the sentence on the first count of the indictment is one to three years, if Wendt were convicted by a jury.

Today, Westcott testified at length about the field sobriety test he conducted on Wendt following the late-night accident.

An expert witness would help Burns establish doubt as to whether the test conclusively proved that Wendt was driving drunk.

Wescott testified that he started with an eye-tracking test, which is designed to find possible nystagmus, which is an involuntary eye movement. Wescott testified that Wendt passed this test, saying that in order to determine that a driver has a BAC of at least .10, he will need to show four clues in the test and Wendt showed only two.

Friedman objected to Burns asking a series of questions about the eye-tracking test, but Noonan overruled the objection.

Wescott also testified that he had Wendt walk a straight line with the requirement that he take nine steps in each direction, heel-to-toe. Wescott said in his judgement, Wendt failed this test, missing four steps by an inch or less between his heel and toe going forward and raising his hands from his side on the return.

When it came to touching his nose, Wendt missed slightly on four of six tries.

On another test, where the suspect is asked to close his eyes, tilt his head back and try to estimate when 30 seconds had passed, Wendt said stop after 37 seconds. The standard deviation, according to Wescott, is five seconds.

More than an hour after the accident, Wendt submitted to a BAC test and reportedly tested at .08.

Wendt did allegedly make at least one incriminating statement early in the interview, Wescott testified. Wendt said, according to Wescott, "You might as well have me blow and take me to jail."

Noonan ruled that statement will be admissible at trial.

For previous coverage, click here.

George Richardson

Going all the way back to the first story it looks like a distracted driver, with three young people in the car with her, slammed into his truck without touching the brakes. Was the deceased wearing a seat belt? Did they find cell phones in the car? If he had not had any beer and did the exact same thing, would he have even gotten a ticket? If he was pulling into a Church parking lot would they even have tested him? They should have asked him to blow as soon as they got there, if he was telling the truth a couple of those beers were not in his bloodsteam yet at the time of the accident. Did they do a breath test and drug test on the driver and her passengers. I'll bet they did not. I wish I was on his jury because I would acquit or sentence him to time served.

Feb 24, 2010, 4:15pm Permalink
Howard B. Owens

George's comment reminds me ... I did not include: Wendt reportedly told Wescott that he had his last beer at 10:50 p.m. The accident was just a little past 11 p.m.

I continue to find this case fascinating because it's not, to me, your typical DUI. There are a number of circumstances that make it something less than an easy case to decide either way.

Feb 24, 2010, 4:24pm Permalink
George Richardson

I missed this info on the first read, but none of these infractions call for jail time, and farm vehicles do this pretty frequently..."driving without insurance, driving an unregistered vehicle, driving an uninspected vehicle and failing to yield the right of way. His truck also allegedly did not have a front license plate."

Feb 24, 2010, 5:18pm Permalink
George Richardson

"The test Wendt passed involves a police officer holding a pen or other object in front of a suspect's eyes and asking the suspect to track the pen. The officer is looking for whether the suspect can smoothly track the pen, whether the eyes jump and whether the movements remain coordinated. Wendt passed that test."
If you watch "COPS" you have seen them say time and time again that this is the test that proves they are drunk because it is an involuntary reaction. The heel to toe BS of an inch, or less(what 1/64th of an inch, a quarter of an inch? How could that cop tell that with a flashlight in the dark?)is nonsense. You can tell this is an election year, and how do you miss touching your nose, slightly? Did he miss the tip, or did he poke himself in the cheek or eyeball? Oh, and he was two seconds outside of the standard deviation for counting down thirty seconds with his head tilted back and his eyes closed. Stand up and give it a try. One thousand and one, one thousand and two. I set my microwave timer and missed by ten seconds. Good thing I'm at home where no one could crash into me. I wish he had a better lawyer because random fate put him in the wrong place at the wrong time. The luck of the draw can be cruel and unforgiving. Of course, if it happened two hours after he got to the bar I'm sure I would feel different. I call this a near miss.

Feb 24, 2010, 5:27pm Permalink
Howard B. Owens

George, on the infractions, I haven't been able to confirm, and it's largely irrelevant since the charges are not being pursued, but I've heard somewhere along the line that the infraction chargers were, shall we say, not accurate.

I don't get your crack about "a better lawyer." From everything I observe, Mr. Burns is doing an admirable job of putting together a defense.

Feb 24, 2010, 5:28pm Permalink
George Richardson

That was unfounded, but I don't believe he needs an expert witness that he can't afford, just a vigorous defense based on the facts.

Feb 24, 2010, 5:37pm Permalink
Howard B. Owens

George, Tom Burns can't testify. He can't just say, "well, you know, it was only 1/2 an inch and that doesn't seem drunk to me." Only an expert can say that, under oath, who has been shown to be qualified to make such statements (though, far more artfully nuanced than that example).

The rules of evidence would allow nothing less. Without an expert witness, I don't know of any way that Deputy Wescott's conclusions can be challenged (fwiw, I don't think anybody is calling into question Deputy Wescott's professionalism in this matter, just that as part of a vigorous defense, this might be a line of reasoning to pursue.)

The important thing to understand about court is, there are rules that very tightly restrict what attorneys and witnesses can say. That's why an expert witness is potentially so critical. Nobody else can say, in defense of Wendt, what an expert might be able to say.

Feb 24, 2010, 6:10pm Permalink

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