Illegal Drivers Claim Local Lives

Lynchburg News & Advance
Published: March 2, 2008

Sometime before 2 a.m. on Dec. 29, Herbert James Jr. took out his car keys, got behind the wheel and drove away.

His driver’s license had been suspended weeks ago, as it had been many times since 2002.

He had consumed enough alcohol for his blood-alcohol level to register at more than twice the legal limit.

James, 27, ended up on Fort Avenue. His Pontiac Grand Prix was moving at more than 70 mph when it crashed head-on into the Johnson family, who were on their way home to Evington.

The explosion set both cars on fire, casting light into nearby homes.

Ashley Johnson, 21, died at the scene; so did James. Her husband Tony, 35, died later at Lynchburg General Hospital. Their 18-month-old daughter Brihanna survived.

The wreck was a tragedy, but it is not unique. Deadly accidents caused by drivers who were under court order to not get behind the wheel have claimed the lives of at least 19 people on Lynchburg-area roads since 2002.

James had racked up at least 18 local traffic-related convictions, most for driving while his license was suspended - for drug possession, driving drunk or for habitually driving without an active license.

His crash course mirrors a nationwide problem.

One out of five fatal crashes involves a driver who is not properly licensed, according to a National Highway Traffic Safety Administration database that tracks fatal accidents.

That’s a sobering statistic in Virginia, where roughly one in seven drivers had their license suspended or revoked in 2007, according to state Department of Motor Vehicle records.

While the DMV does not track all drivers who have had their licenses taken away multiple times, anecdotal evidence from police on patrol and local court records tell of many who habitually drive unlicensed.

Because of this disregard for the law, local prosecutors say, the justice system is little deterrent for habitual drunk drivers or those who would continue to drive without a license, endangering the rest of us on the road.

* * *

Tony Johnson and Ashley Frazier met on the Internet. By the time Ashley moved from her home in Delaware in 2003 to Lynchburg to be closer to Johnson, James had twice had his license suspended.

That year, the Lynchburg man faced his first drunk-driving charge in Bedford County.

According to Bedford County Commonwealth’s Attorney Randy Krantz, the DUI charge and a felony charge of eluding police were pleaded down to a charge of reckless driving.

James was sentenced to four months in prison on the conviction, Krantz noted, as opposed to a five-day mandatory minimum sentence for a first-time DUI conviction.

But, by the time the Johnsons were married in August 2005, James had twice been convicted for DUI, once in Bedford County and once in Lynchburg.

That year, James was found guilty of drunk driving, possession of marijuana and hit-and-run as a passenger. He also had his third and fourth convictions for driving on a suspended license. He spent a total of 20 days in jail.

By the end of 2006, the year the Johnsons’ daughter Brihanna was born, James was convicted of driving suspended for the fifth time.

On the day of the fatal crash, James was a fugitive for failing to report to jail in November to serve 10 days for his seventh conviction for driving without an active license.

Police said James was headed north on Fort Avenue at more than 70 mph just before 2 a.m. when he swerved to miss a car stopped in the left lane. He lost control and rammed the Johnsons’ Grand Am near New Hampshire Avenue, between Perrymont and Memorial avenues.

The crash pushed the state’s yearly traffic fatality count to more than 1,000 for the first time in 17 years.

“The thing that irks me is this person should never have been there,” said Lynchburg Police Officer Ronnie Sitler, who was at the scene just after the crash and is in charge of the investigation.

“Now we have an 18-month-old child out there without a mother and father because (James) was doing something stupid with his driving and ended up costing three people their lives.”

* * *

These days Brihanna alternates time between her paternal grandmother’s home just outside Lynchburg and her mother’s parents’ home in Delaware.

Tony’s mother, Patricia Neighbors, said she doesn’t think Brihanna remembers the crash, but the toddler does have nightmares and yells in her sleep.

“The other night, she hollered out,” Neighbors said. “It was quite scary. I don’t know if she had a bad dream or if she remembered the crash.”

Neighbors heard the phone ring early that December morning. She let the first call go unanswered, but when it was followed by another, she picked up.

A worker at Lynchburg General Hospital said her son had been in a crash; she was needed to sign papers to transfer Brihanna to Roanoke Memorial Hospital.

Neighbors arrived to find that her daughter-in-law was dead and her son was clinging to life with multiple injuries that included crushed ribs and compound leg fractures.

“I told (my husband) that first of all, with his size, he wouldn’t want to live with his legs like that and having someone wait on him hand and foot,” Neighbors said. “And another thing, he wouldn’t have wanted to go on without her.”

Neighbors and her husband James have been packing up the Johnsons’ belongings from their Evington home. She had to send her husband to pack up her son’s things, finally, after she couldn’t bring herself to do it.

“Every day I think maybe I’m in a dream and I’m going to wake up and everything will be all right,” Neighbors said.

“It’s hell. On Fridays, I’ve sat here and looked at the clock and thought he’d be by here in a few minutes. Then I’ll say, ‘no, he’s not going to be by here ever again.’”

Now, she said, the medical bills are coming in; her son’s are about $11,000; her granddaughter’s ambulance bill alone totaled $5,700.

She’s also in court with Ashley’s parents to decide who should have custody of Brihanna. The next hearing is on May 7, she said.

* * *

In spite of numerous run-ins with the law, court records show the most time James pulled for a local conviction was four months, for the 2003 reckless driving conviction in Bedford County that was amended from drunk driving.

For the rest of his convictions, he spent either no time in jail or received a 10-day active sentence - typically the mandatory minimum in Virginia for third or subsequent felony convictions for driving on a suspended or revoked license.

Prosecutors say his case illustrates how overworked Virginia’s judicial system can be when it comes to keeping habitual offenders off the road. The case also strikes at the heart of the debate over how to punish repeat offenders like James.

Is there a way to distinguish between those who habitually drive without a license to keep a job and those like James who are a ticking time bomb? If that’s possible, should those drivers spend more time in jail or should the commonwealth spend more money on treatment?

“I don’t know what the numbers are on any particular day, but there have to be 150 to 200 cases on the docket per day in traffic court,” said Lynchburg Commonwealth’s Attorney Michael Doucette. “A judge is looking at that, looking at the evidence and ruling, ‘guilty or not guilty, next case.’

“Basically, that leaves the rehabilitation up to the particular individual not wanting to pay fines and having his insurance go up. Then, even if we were able to identify the people that are going to go out here and hurt someone, is there something we can do to rehabilitate folks to keep them from doing that? Not given the realities of the judicial system.”

James’ seven convictions for driving without an active license don’t stand out, Doucette said.

“There are some that aren’t so bad and there are some that are a lot worse,” he said. Other than the person’s demonstrated lack of respect for traffic laws, it’s almost impossible to tell if a habitually suspended driver is going to hurt someone, he said.

However, the city’s prosecutor’s office is doing more in the wake of the James wreck to keep track of those drivers. Until this year, Doucette said, commonwealth’s attorneys here typically prosecuted these cases off the cuff. Now, Doucette said, his office will be opening files on drivers that reach felony-level offenses in order to be more informed on the person’s criminal history.

The office did the same thing in 1999 when a third DUI conviction became a felony, he said. But something else happened in 1999, he said. The question of how to punish repeat drunk drivers came to a head in the General Assembly.

Before then, a person with a third drunk-driving conviction was typically declared a habitual offender. That meant a sentence of a year in jail, and about 71 days served, Doucette said. But, when parole was revoked in 1995, those habitual offenders started serving a full 12 months.

“The law of unintended consequences was that you had all these people in jail serving that one year,” he said. “From a safety point of view, yes, they’re not committing driving offenses while they’re in jail. But, our jails started becoming overcrowded with habitual offenders.

“You have a finite number of jail cells and you have to decide if you want to build more. What do you do?”

The law changed. In 1999, courts stopped declaring repeat drunk drivers habitual offenders. A third drunk-driving conviction still is treated more harshly than a first or second offense, but now a person must be convicted of a fourth offense before he or she stands to spend a year in jail.

By spending enough time and money intervening in the life of a drunk driver while that person is in jail or on probation, it is possible to reduce the chance that person will get behind the wheel again while intoxicated, Doucette said. But the cost of locking up a repeat offender also has to be weighed against the benefits.

“I know this is going to sound cold, but whatever we decide to do, we have to do a cost-benefit analysis. It’s cold because the family that was killed by Mr. James, they’re not doing a cost-benefit analysis, they’re grieving.

“But, when we look at it from a broad perspective, we have to decide where to spend money. With the current economic climate and the political climate, I don’t have an answer.”

Krantz, the Bedford County commonwealth’s attorney, took a surer approach to the question. Pay now with the increased costs of longer jail sentences and better treatment for addiction, he said, or pay later when someone is hurt or killed.

First-time offenders, he said, need to be looking at long sentences, heavy fines and the seizure of their vehicles.

At the same time, Krantz said, it’s not as simple as picking out a drunk driver and locking that person up.

Even a first-time DUI case can involve the same level of complex evidence as a drug overdose murder case, he said.

Officers have to be specially trained to use alcohol-measuring equipment. The equipment has to be properly calibrated. And even if that all adds up, those convicted of misdemeanors often drag cases out through appeals that can take months.

So far, Krantz said, he hasn’t found anything to deter repeat drunk drivers. Jail, he said, is a reliable way to make sure that person isn’t going to drive.

“You cannot reason with unreasonable people,” he said. “The only thing that will stop them is putting them in jail.”