John Boyle

jboyle@citizen-times.com

If I told you somebody was on the road in Western North Carolina who just got a DWI charge — and had five other recent DWIs pending — you probably wouldn't believe me.

Believe me.

This case boggles the mind, and not just because someone keeps gets charged with driving while impaired and remains free to do it again, but also because the state can't seem to put a stop to it.

Barbara Burleson Anderson, a 61 year-old Marion woman, was arrested Tuesday on Interstate 40 in Buncombe County and charged with DWI, according to an arrest warrant. In going through it, I noticed the attached pages detailed five other pending DWI cases against her — four in McDowell County and one in Burke County.

The oldest, in McDowell, dates to Oct. 10, 2014; the most recent, also in McDowell, to Oct. 31, 2015. That last one just barely beat the previous DWI she got, which came a day earlier — yes, she got one Oct. 30 and the next one on Oct. 31.

She also was charged last year with DWIs on Nov. 25 in McDowell County and June 20 in Burke County.

Not one has been prosecuted yet, and that obviously begs the question, "For the love of god, why not?" What I untangled in this case last week was a knot of state officials pointing fingers at one another, amid intertwining threads of miscommunication, confusion and inaction.

Still waiting on labs

First of all, the McDowell County District Attorney's office is waiting to get drug testing results back from the North Carolina Crime Lab in Raleigh on the 2014 case.

"Her very first court date was April 6, 2015," said Kent Brown, the assistant district attorney in McDowell who is handling the Anderson cases. "At that time, the lab handling it asked for it to be continued until Aug. 24, 2015. The lab wasn’t back then, so it was continued to this coming Monday. But the labs are not back."

So, yes, her case will be postponed again, to mid-March. Brown points out that their hands are tied, because here in America defendants are presumed innocent until proven guilty in a court of law. So, until they can secure a conviction, with that all-important lab work, Anderson has been able to keep driving and not tagged as a habitual offender.

When you get charged with a DWI, you automatically lose your license for 30 days, but defendants also can get a provisional license for exceptions such as getting to and from work. Obviously, she has been able to stay on the roads, piling up more DWI charges and endangering other drivers.

"That’s what so frustrating," Brown said. "To the extent that part of our role in the DA's office is to take into consideration the protection of the public, we are frustrated in our abilities to handle that issue."

The Buncombe County Magistrate did slap Anderson with a $30,000 secured bond, a high amount for a misdemeanor DWI charge. A Buncombe County District Court judge raised that to $60,000, secured, so that may hold her in jail for a while.

She remained in jail Friday when I checked. For the public's safety, that's good news.

North Carolina Highway Patrol Trooper Kelly Rhodes, a spokesman for the Highway Patrol's western office, said the most recent DWI case, in Buncombe, could have ended tragically for the arresting trooper. The trooper was on the side of I-40, dealing with a car that needed to be towed, when Anderson's vehicle approached.

"She dropped off the shoulder and hit the rumble strips, and barely avoided him," Rhodes said, adding that the impairment charge stemmed from the painkiller Percocet. "She was very cooperative and made a statement that she had just lost her mother, and her husband is in bad health and she is having to take care of him. She also complained about a leg problem and said that's why she's taking pain medication."

Rhodes said the scenario obviously was frightening for the trooper, but it's also terrifying for the general traveling public.

"This is becoming more and more commonplace," Rhodes said. "It's not that people who are impaired are doing heroin and marijuana and other illegal drugs, it's the abuse of prescription medications. And then you've got the backlog of (lab cases) and the blood analysis. All these cases are pending, waiting on the lab."

Confusion over 'habitual' status?

North Carolina Crime Lab Director John Byrd told me several factors are at play here, and possibly some confusion among law enforcement officials about the "habitual offender" notification process, which he says should address cases like Anderson's. All six cases involve prescription drugs.

"In this case, this person was arrested six times — at one point three times within 25 days, in two different counties," Byrd said. "Each DA knew it for their respective cases, and the arresting officers knew it, but there was no communication with us, by phone, email or otherwise, letting us know this was a habitual issue. There was no rush request made on this."

That is true. Brown said he did not put in an expedited request, in part because they use that designation judiciously.

His boss, McDowell District Attorney Ted Bell, said another problem is in the mix, though, and it's sort of a Catch-22: Because Anderson has not been convicted on any of the six charges, the DA's office would not regard her as a "habitual offender." But they have not been able to pursue convictions because they haven't gotten the lab work evidence back.

Prosecutors have to extend Anderson the presumption of innocence and rely, for the time being, on the magistrate and district court judges to impose high bonds.

The Crime Lab may assume someone charged with multiple offenses qualifies for the "habitual DWI" tag, but Bell said for prosecutors to use the designation of "habitual DWI offender" the person has to have two prior convictions within the last 10 years. That can bring jail time, but obviously that's not the case with Anderson.

"She has two prior convictions, but they’re farther than that in the past," Bell said.

You heard right. Anderson has DWI convictions in McDowell dating to 1976 and 1985 and another conviction in Buncombe from 1972, according to the Highway Patrol. But those are too old to be used to establish "habitual" status.

But Byrd said the "habitual" status block on the form law enforcement or prosecutors submit with testing requests is designed to address cases "exactly" like Anderson's. Byrd said they have good relationships with law enforcement, and he wants to keep it that way, but ...

"There’s got to be some accountability on the law enforcement side and the DA's office side to say, 'Hey, crime lab, we’ve got a public safety issue here,'" Byrd said. "That’s why we’re here, and that’s why we've got the rush request set up the way it is. If somebody had told us this is a six-time offender, it would’ve been put to the front of the line."

Byrd said he put the five most recent Anderson cases to the front of line Friday morning. The one from 2014 had already been outsourced to a lab to push results so they will be back by mid-March.

"I told my team (Friday) morning, 'Pull all five of these cases. Let’s get them in the batch and work it as a rush on my authority, since we still don’t have any authority from the DA or the officers,'" Byrd said. "Those will be done about the same time as the other one — about the middle of March."

Delays have been commonplace

It's fair to note here the probable reason law enforcement wasn't requesting a rush job on the cases: for years the Crime Lab, because of high turnover, under-staffing and under-funding, hasn't been able to rush much of anything.

"I will tell you, a year ago, we were getting so many rush requests in we couldn’t handle them all in a single week," Byrd said. "Over the last five-six months, we’re able to handle every rush case that comes in, with this caveat: if somebody submits a rush case they need back tomorrow, that can’t be done."

They basically ask for 90 days. Byrd said they've have gotten average lab turnaround time down to about 205 days for all requests, and the lab got more than 25,000 cases in the 2014-15 fiscal year. They have also knocked staff turnover down to less than 10 percent, and of 214 positions, 196 are filled.

The state will open a $15-million Western Crime Lab in Henderson County in 2017, and that will help with drug cases. Also, as of December, the crime lab in Skyland can handle drug cases, although Byrd acknowledged that prosecutors and law enforcement officers might not be aware of that.

Bell says the lab's poor record with "rush" requests meant he and other prosecutors just didn't submit many.

"(Byrd) is saying a year ago they couldn’t meet (demand), and he's absolutely right," Bell said. "We’ve sent in rush requests and seen no change whatsoever, and I haven’t gotten a memo saying, 'Hey we can do it now.'"

What I'm gleaning from all this back and forth is that in these cases, everybody needs to tighten up their game — arresting officers, prosecutors and the crime lab.

They're all responsible for the public's safety, and that means keeping Anderson off the road.

This is the opinion of John Boyle. Contact him at 232-5847 or jboyle@citizen-times.com

Keeping body cam video secret is just bad policy

Boyle column: Was justice served in 2-year-old's death?