Press-Republican

September 14, 2013

Video shows Smith's DWAI arrest

Franklin County legislator charged by Sheriff's deputy

By DENISE A. RAYMO
Press-Republican

---- — MALONE — The identity of the man that a Franklin County deputy stopped last month for alleged erratic driving is not mentioned until 19 minutes into a video of the incident.

“Guy Smith. Legislator Smith up at the courthouse,” is the driver’s reply to a question posed by State Police Trooper James Gwinn.

Gwinn was assisting Deputy Luke Cromp at a traffic stop about 6 p.m. Thursday, Aug. 15, near the Westville/Malone town line.

It ended in Franklin County Legislator Guy “Tim” Smith’s arrest on charges of driving while ability was impaired by alcohol and failure to stay in his driving lane.

Smith, 71, of Fort Covington, pleaded not guilty to the charges in Malone Town Court and is due back there at 9:30 a.m. Oct. 1.

TWO-HOUR VIDEO

Sheriff’s Department cars are not equipped with dashboard cameras, but Cromp, wearing a pair of glasses specially equipped with a camera, recorded two hours of video footage during the stop.

On Thursday, the Press-Republican viewed the video.

The footage begins as Cromp leaves his vehicle to speak with Smith, who is standing next to his car in his sister’s driveway on Robinson Circle in Malone.

One minute into the recording, the deputy asks Smith if he is willing to take a sobriety test.

“I don’t especially care to, no,” he says, but he does submit.

SOBRIETY TEST

First, Smith is asked to follow a pen with his eyes as it is repeatedly passed before his face, to take the heel-to-toe walking test and to stand on one leg and count while holding the other leg off the ground.

Cromp then tries more than 10 times to instruct Smith on how to correctly blow into the straw of the hand-held alcohol sensor. He changes straws and tries two more times before he stops, tells Smith to stay in his car and calls the State Police for backup 11 minutes into the video.

While waiting for the State Police in his own vehicle, the deputy receives a cellphone call from an unidentified person who apparently asks him about the traffic stop.

“He’s drunk, but I need backup,” Cromp says, adding that “either the breathalyzer’s not working or this guy is just being a d--k and not blowing through it.”

‘WEAVING ON HIGHWAY’

In the meantime, Smith apparently gets out of his car, and Cromp steps out to tell him to get back in it.

“This is the third (expletive) time I’ve had to tell him to get back in his (expletive) car,” Cromp tells the caller. “When I pulled him over, he didn’t even let me get out of my car. 

“He came running right up to my (expletive) window.”

Gwinn arrives about 15 minutes into the traffic stop, and Cromp fills him in on what’s going on.

“I got this guy here. He’s drunk,” the deputy says, adding that Smith failed the roadside sobriety tests.

Cromp said he made the stop because “he was weaving on the highway back there. He was touching the yellow line and touching the white line two or three times.

“He’s definitely been drinking and, in my opinion, he’s intoxicated.”

DENIES DRINKING

Gwinn approaches the vehicle and tells Smith he’s going to test him for alcohol and that they may have to take him to the State Police barracks to take another test to “see if you’re intoxicated.”

“Well, I hope not,” Smith said. “I just got out of a meeting at the courthouse.”

The trooper asks him his name and if he has been drinking.

“No. Yesterday I had some, but I haven’t had any today,” Smith said about 21 minutes into the video.

Cromp asks Smith for his license and returns to his car to call Sheriff’s Department Deputy Sgt. Barry Cartier for the proper police code to write on the traffic summons, and Cartier eventually asks him the name of the driver he stopped.

“Guy, uh, Legislator Smith,” the deputy said.

“Oh, my God,” Cartier says, then chuckles and asks what infraction Smith allegedly committed.

After being told it was for failure to stay in his lane, Cartier asks, “Wow. He been drinking?”

“Yah. Oh, yah. He’s drunk,” the deputy says.

“You’re going to get assistance, right?” the sergeant asks, and when Cromp tells him the trooper is already there, Cartier says, “Oh, OK. Wow. Like I said, better you than me.”

SENSOR READS .055

As Cromp continues to fill out the ticket 27 minutes into the video, Gwinn reaches in the window with a sensor in his hand that reads .055.

“It should be an AI (ability impaired) … are you comfortable with just leaving him here?” the trooper asks.

“I don’t know. What do you think?” Cromp asks, then says, “My boss ain’t going to be too happy if I went through all of this and went and cut him loose.”

“Well, it’s not a DWI,” Gwinn says referring to the sensor. “These are pretty accurate.” 

Then he says Smith “did fairly well” on the field-sobriety tests the trooper administered.

“He did horrible when I did ‘em,” Cromp says. “He started too soon. He stepped out of line and couldn’t keep his balance.”

‘BECAUSE I’M A POLITICIAN?’

Cromp is heard making a call and telling the person on the other end that he’s at a DWI stop with a driver having a blood-alcohol reading of .055.

“The minimum is .05. He’s over that,” the deputy says and is apparently told to take Smith to the barracks for the additional test.

When he’s told that he’s being arrested for DWAI, Smith is read his Miranda rights and informed he is to be tested on a different machine.

“These are not accurate?” Smith asks, indicating the deputy’s alcohol sensor.

He then asks the trooper, “Are you arresting me because I’m a politician?”

HANDCUFFED 

As he’s being led to the deputy’s vehicle, Smith says, “I didn’t know you had road patrols,” to which Cromp answers, “Well, we actually are police officers in the state of New York. I was out doing sex-offender checks …”

“I’m not one of those,” Smith said with a laugh.

“No, this is true. I just happened to notice you were weaving,” Cromp said.

Smith is handcuffed in front of his body and loaded into the back seat of the deputy’s car, which follows the State Police cruiser to the Malone barracks about 47 minutes into the video.

“I hope I do well,” Smith says after he arrives and the breathalyzer is being prepared. “I’m perfectly fine. I had one beer. I hope it don’t register more than that.”

‘I MAKE YOUR BUDGET OUT’

An hour and 11 minutes into the video, Smith is given the breathalyzer test by Gwinn, but it takes another four tries before Smith breathes hard enough and long enough to get a reading.

Routine paperwork and waiting for details to write into the report take up most of the final hour of the video until Cromp prepares to take Smith back to his sister’s house.

He is again handcuffed and is told it is policy to have any passenger wear handcuffs.

“I understand. Look, I make your budget out,” Smith says with a laugh.

He sits in the front seat for the return trip, and Cromp explains on the way when Smith is to appear in court, then points to the building as they drive past the Malone Dufort Airport, which houses the Malone Town Offices.

“So, you work up in the courthouse?” Cromp asks.

“Yes, I do. I make your budget up,” Smith tells the deputy.

“Oh, yeah? What office do you work in up there?” he asks.

“I’m a legislator,” Smith replies.

‘ONLY HAD ONE BEER’

After another minute where the audio of the discussion is unclear, Cromp says, “It’s not a huge deal, but there’s a big push on in New York against drunk driving. I’m glad you weren’t over the limit.”

“No, I’m glad I wasn’t either,” Smith said. “I only had one beer.”

“Unfortunately, we can’t let anybody go without checking because if you were to go down the road and hurt yourself or someone else …”  

“I understand. I know all about it,” Smith said.

“There’s a lot of liability there for us,” Cromp said. “I hate to have to go through this with anybody.”

“Yah. I don’t want to go through this, either,” Smith said. “But what are you going to do?”

In a recent interview, defense attorney Kevin Nichols said in defense of his client that a BAC reading of .055 isn’t a legally accepted number since percentages are not rounded up, and only numbers higher than .05 constitute a charge of impaired driving.

Smith did not return a call made to him by the Press-Republican on Friday asking him for comment.

Email Denise A. Raymo:draymo@pressrepublican.com

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OFFICIALS QUESTION ROAD PATROL

Last week, Franklin County legislators confronted Sheriff Kevin Mulverhill about the arrest of Legislator Guy "Tim" Smith and asked if the department was operating a road patrol. 

The sheriff explained that the arresting officer, Deputy Luke Cromp, is one of eight deputies on staff fully trained at the police academy, whose main jobs are to serve summonses, conduct evictions and check on registered sex offenders. But they also have the obligation and power to make arrests if they see a violation or crime committed, the sheriff said. 

One legislator demanded written proof that Cromp was checking on sex offenders that night and not targeting Smith. 

And the lawmakers strongly suggested the Sheriff's Department 2014 budget may be cut and the trained deputies reclassified as corrections officers so they can no longer make arrests. 

According to department records, deputies made 33 arrests across Franklin County between January and last week, ranging from driving while intoxicated to cellphone violations.