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In March 2013, David Manwaring was driving by the Fingerlakes Mall when New York State Police spotted him spinning his tires and veering onto the shoulder of Clark Street Road. At the time, troopers said he was pulled over and registered a blood alcohol content of .08 percent, and he was charged with his fifth drunk driving offense in less than 10 years. 

Manwaring ultimately pleaded guilty to driving while intoxicated, a class D felony, and first-degree aggravated unlicensed operation of a motor vehicle, a class E felony, and was sentenced to 1 1/3 to four years in prison plus five years post-release supervision.

After serving the full four years in prison, Manwaring returned to Cayuga County where he was supposed to start his post-incarceration probation. But the county probation department said the 51-year-old never showed. 

On Tuesday, Manwaring appeared in Cayuga County Court for violating the terms and conditions of his probation. District Attorney Jon Budelmann said Manwaring had failed to report to his probation officer and continued to consume alcohol. 

"He refused to sign the orders of conditions and told (the probation department) flat out that he refused to stop drinking, he had been drinking alcohol since he got out ... and if he wanted to have a beer, he would," Budelmann said. 

However, the district attorney's office said there was not much the court could do about it. 

In 2010, New York State enacted Leandra's Law, which requires all convicted drunk drivers to install ignition interlock devices on vehicles they own or operate. It also added a period of probation or conditional discharge upon their release from jail or prison, and made it a felony to drive drunk with a child passenger in the vehicle. 

But Cayuga County Assistant District Attorney Diane Adsit said there was something missing, as the law did not address punishment for those who violated their post-incarceration supervision. 

"The bottom line is that we have a mandatory sentencing law in place ... but we have no legal means to enforce that supervision sentence with incarceration," Adsit said. 

In one case, Budelmann said the court tried to impose the maximum incarceration on a repeat offender who'd twice violated his probation in the county. But the state Supreme Court's Appellate Division said they did not have that authority. 

In 2016, Claude Zirbel was resentenced to prison after his second violation of probation in Cayuga County. Like Manwaring, Zirbel was previously sentenced to 1 1/3 to four years in prison — the minimum prison sentence for felony DWI and driving without a license — for his fifth drunk driving offense. He has since been convicted of another DWI in Cortland County. 

Budelmann said the intent was to sentence repeat DWI offenders like Manwaring and Zirbel to the minimum assuming they could be resentenced to the maximum if they "screwed up" on probation; the maximum for a D felony DWI is 2 1/3 to seven years in prison. 

"There are already statutes enacted that ... authorize punishment for violating the terms of a conditional discharge and probation," Budelmann said. "I think we assumed the normal provisions would apply — up to the maximum exposure." 

But the appellate division disagreed.

On Tuesday, Zirbel was restored to probation following an appeal by assigned defense attorney David Elkovitch. Elkovitch successfully argued that Zirbel "maxed out his underlying time" and could not be sentenced to additional prison time for the violation. 

"We agree with defendant that the court lacked the authority to sentence him to more prison time after his initial term of imprisonment was completed," the Appellate Division said in its decision

Knowing this, Adsit said the courts now have two options when a DWI offender violates their post-release supervision: they can restore the defendant to probation or conditional discharge or they can terminate the probation or conditional discharge. If terminated, the offender would no longer need an ignition interlock device or supervision. 

In Manwaring's case, the probation department asked the court to revoke the defendant's probation as Manwaring made it clear he would not comply with the terms. However, Judge Mark Fandrich said he was inclined to restore Manwaring to keep the ignition interlock device on his vehicle. Driving a vehicle without an interlock device is a class A misdemeanor punishable by up to one year in jail. 

"Probation feels it is a waste of their valuable and limited time to even supervise these people ... since the court cannot even put them in jail (for a violation)," Adsit said. "Other than personal integrity, there is no reason such DWI defendants who already served jail or prison time to comply with probation. That becomes a personal safety issue for probation officers and a public safety issue for everyone." 

Budelmann said his office has reached out to the state district attorney's association and Mother's Against Drunk Driving to push for changes in the law. At this point, he said, the Legislature has two options: to get rid of post-release supervision and ignition interlock devices — which would be a "horrible idea" — or to make it so courts can impose incarceration for those who violate their conditions. 

"They've made this good, groundbreaking law (Leandra's Law) ... and if they don't fix it, it's as if it never happened," Budelmann said. 

Richard Mallow, New York's Executive Director of MADD, agreed. 

"Mothers Against Drunk Driving firmly believes that the courts should be able to extend the terms of punishment if a defendant violates the conditions of his or her probation, even if the defendant has served their full prison sentence," he said. "The Assembly and Senate should reintroduce ... legislation to fix this horrific loophole and create stronger penalties." 

Staff writer Megan Blarr can be reached at (315) 282-2282 or megan.blarr@lee.net. Follow her on Twitter @CitizenBlarr. 

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Crime and Courts Reporter