Judge resists push for prison for drunk driver
DEDHAM - Despite a tearful plea from the sister of a Milton firefighter nearly killed last year, a Superior Court judge refused yesterday to sentence a repeat drunk driver to state prison, saying the crime was an act of carelessness, not violence.
Judge Janet Sanders spoke from the bench as she sentenced C.W. Tolbert Jr. to a total of three years at the Norfolk County House of Correction, followed by five years of probation. Tolbert will be credited for the 347 days he awaited trial.
Tolbert admitted yesterday in Norfolk Superior Court that he was drunk on June 30 last year when he drove into Milton Firefighter Antonio Pickens as Pickens tried to help car crash victims on Route 138. Pickens, 44, had no pulse for 25 minutes, was in a coma for months, and still faces years of surgery and therapy.
Pickens's sister, Robin Hayes, urged the judge to send the 47-year-old Stoughton man, who had two prior drunken driving convictions, to state prison to send a message to anyone who drinks and drives.
People sentenced to county houses of correction are usually less violent and are given more access to state rehabilitation programs; they often remain closer to home and their loved ones. Those sent to state prisons are generally considered to be more violent, typically spend a longer time incarderated, and can be sent anywhere in the state to serve their sentences.
The judge said she did not believe Tolbert's personal and criminal history justified such a severe sanction. Tolbert's two drunk driving convictions were his only crimes during the last 20 years, she said.
"We do have the two OUIs . . . but state prison, I think, is for repeat violent offenders, and Mr. Tolbert is not that," the judge said. "This is not so much an intentional and willful act as it was an act of thoughtlessness and carelessness. . . . It was certainly serious, but not the kind of crime that warrants a state prison sentence."
Norfolk District Attorney William R. Keating's office had sought a seven-year prison sentence.
"I think if the sentences were longer, then people would probably think twice about getting behind the wheel," Hayes said outside the courthouse following the sentence. "This is his third offense. Who knows how many other times he has gotten behind the wheel and driven drunk? My brother's life is forever changed."
According to Assistant Norfolk District Attorney Gregory Connor, Pickens was working his shift along with two other firefighters in Milton at the Engine 4 firehouse on Route 138 when two cars collided in front of the station around 10 p.m.
Pickens alerted colleagues and was crossing the two-lane road toward the cars when he was struck by Tolbert, who was driving a Buick LeSabre. A State Police reconstruction team concluded that Pickens flew 84 feet through the air and that Tolbert was driving 40 in a 35-mile-per-hour zone. The judge also said that it was dark and that Tolbert had a green light.
Tolbert should not have been driving following his second OUI conviction in South Boston Municipal Court, but held a valid license at the time of the crash because of miscommunication between state agencies. The Registry of Motor Vehicles was never notified about Tolbert's second OUI conviction, officials said last year.
The registrar of motor vehicles, Rachel Kaprielian, said yesterday that she is setting up a commission with Registry staff members and court officials to close the communication gap that allows an unknown number of repeat drunk drivers to wrongly get licenses.
"I assure you, there will be action," she said in a telephone interview. "We are just not getting information from the court in enough time. This reflects on all agencies, and the court [system] is not exempt from that. I anticipate strong cooperation from them."
In a letter read in court by his lawyer, Robert M. Tutino, Tolbert apologized to Pickens, with whom he had friends in common.
"I hope that you get better and soon, so that you can go back to doing what you love," he wrote. "I hope you and your family some day can find deep in your hearts a way to forgive me. I pray every night for your speedy recovery, and God has answered our prayers."
According to Pickens's sister and Connor, the firefighter lost 80 percent of his blood at the scene before he was rushed to Beth Israel Deaconess Medical Center, where he lapsed into a coma.
Pickens, of Brockton, suffered massive fractures of his legs and nearly lost his right arm in the crash. He is at home and, despite his continuing medical challenges, is determined to resume his career as a firefighter.
"My brother is very resilient," Hayes said. "He is so strong. He fights every day. It's only a matter of time."
