Court error allowed driver on road

C.W. Tolbert Jr. had two drunken driving convictions on his record.

According to Massachusetts' tough new drunken driving laws, that should have meant he was allowed to drive only cars equipped with a device that wouldn't let them start when he'd been drinking.

But the requirement never affected Tolbert. And the car he was driving Saturday night, when he allegedly hit 44-year-old Antonio Pickens, a Milton firefighter, had no such device.

Officials said yesterday that a paperwork problem was the reason.

"We learned [yesterday] that there was an outstanding conviction that had never been sent to the Registry" of Motor Vehicles, the state agency that is responsible for administering the law, said Ann Dufresne, spokeswoman for the Registry.

Dufresne said South Boston Municipal Court failed to send records detailing a 2004 drunken driving conviction against Tolbert that would have invoked tough penalties under Melanie's Law.

If the court had sent the information, she said, the Registry would have required Tolbert to drive a car equipped with a device that will only let the car start when the driver breathes into a tube and registers a legal blood alcohol level. The restriction would have been in force from August 2006 through August 2008, she said.

Tolbert, of Stoughton, was driving a 1994 Buick LeSabre registered to his girlfriend when he hit Pickens on Blue Hill Avenue in front of the Engine 4 station where Pickens works.

Pickens was checking on people inside two cars involved in a minor motor vehicle crash across the street at the time.

Pickens was listed in critical condition in the intensive care unit at Beth Israel Deaconess Medical Center, where his family and firefighters are keeping a 24-hour vigil.

For 25 minutes after he arrived at the hospital, Pickens did not have a pulse, said Milton Fire Lieutenant Jack Grant, who is president of the firefighters union and who is speaking for Pickens's family, which includes his wife and two teenage children.

"He's an amazingly strong person," Grant said. "It's miraculous."

Yesterday as he was arraigned in Quincy District Court, Tolbert wiped tears from his eyes as a prosecutor described Pickens's injuries.

Tolbert pleaded not guilty to drunken driving third offense, driving drunk and causing serious bodily injury, and driving drunk negligently. He was ordered held on $7,500 cash bail.

Yesterday, the Registry suspended Tolbert's license for seven years.

In addition to the 2004 conviction, Tolbert was convicted in Quincy District Court in 1999 of drunken driving.

In court papers, Tolbert said he did not see Pickens crossing Blue Hill Avenue. He said that traffic was moving routinely and that he thought someone had thrown something at his car when the windshield was smashed.

He also said he had only "three or four" beers at his mother's house in Roxbury. But his girlfriend told Milton police she thought he was sleeping in her car parked outside their Stoughton apartment, according to court papers.

Tolbert is slated to donate one of his kidneys to his 44-year-old brother, David, who is on dialysis after a chronic disease destroyed his kidneys, said their mother, Viola Tolbert, who was in court. "If he doesn't get it [the transplant], my son will die," she said.

She expressed sympathy for Pickens's family. "I am really, really upset about what happened," and I know that he is, too," she said. "I am totally, totally sorry for the family and our family."