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‘I hope you rot in jail,’ judge says to drunk driver in fatal accident case

Reforms create a loophole for some drivers

Antwonne McGinnis

Contributed photo The Sales family: DaQuan, his mother Janelle, little brother DaJuan and sister DaZiah. Antwonne McGinnis was convicted of drunk driving and driving without a license after striking and killing DaQuan Sales, 12, on his bicycle on June 13, 2009 in Dayton.

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Was McGinnis's sentence fair?

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By Lou Grieco and Laura A. Bischoff
Staff writers Updated 8:33 AM Monday, March 15, 2010

DAYTON — After Antwonne McGinnis was sentenced, Janell Sales entered Miami Valley Hospital, again.

“Stress is one of the main reasons I end up in here,” Sales said Wednesday, March 10.

McGinnis, 25, was driving drunk when he struck and killed Sales’ son DaQuan. McGinnis pleaded no contest to two misdemeanor counts, neither of which dealt with DaQuan’s death: drunken driving and driving without a license.

Sales, 32, who has suffered from sickle cell anemia since age 2, gave an impact statement at the sentencing. She said she was dismayed to learn that McGinnis was convicted only of misdemeanors, that he received only a year in jail, and that the sentence will be served simultaneously with a prison term he is already serving.

“I can’t explain how I feel,” Sales said last week. “I’m just angry about it. I don’t understand.”

Sales said she does not blame police, prosecutors or the judge. All of them told her that their hands were tied.

During an emotional sentencing hearing March 3, acting Dayton Municipal Judge Colette Moorman told DaQuan’s relatives, “I’m sorry, but I’m bound by what I have. There’s nothing I can do.”

Moorman then told McGinnis that she did believe he would pay a higher price later on.

“What goes around comes around and I hope somewhere down the line you get some pain inflicted upon you that’s a hundred times worse than what this poor lady is going through,” Moorman said. “You will get yours even though I can’t do it to you.”

Son was “all-around good boy”

Sales remembers her 12-year-old son as a respectful, helpful boy who avoided trouble.

“He was just an all-around good boy,” she said.

DaQuan and another friend were riding bikes northbound on Elmhurst Road on June 13. A Tahoe was behind them, driving slowly, because of the boys, said assistant Dayton prosecutor Andy Sexton.

McGinnis, driving a girlfriend’s car behind the Tahoe, apparently could not see the boys. He decided to pass the Tahoe and crossed into the other lane.

At the same time, the boys decided to split and go to the sides of the street to get out of the way of the Tahoe. The friend went to the right. DaQuan drifted toward the left and was struck by McGinnis’ car, Sexton said.

“It really was, in some respects, a freak accident,” Sexton said.

DaQuan flew up onto the hood, then hit the ground. He died at the scene. McGinnis initially fled, but came back.

Sexton said McGinnis was a “functional alcoholic” who showed no signs of intoxication after the accident and was able to perform field sobriety tests. McGinnis was asked for a blood sample, gave consent, and authorities learned that his blood alcohol level was 0.17, more than twice the legal limit, Sexton said.

Investigation took months

McGinnis was on probation for disrupting public services and being a felon in possession of a weapon. Montgomery County Common Pleas Judge Mary Wiseman revoked his probation and sentenced McGinnis in August to two years in prison.

The crash investigation took months. The Montgomery County Prosecutor’s Office decided not to file any charges, but to take the evidence directly to a grand jury.

In December, the grand jury declined to indict McGinnis on felony charges.

“Over two days in December 2009, the Montgomery County grand jury heard evidence and testimony from approximately 18 witnesses, including police investigators, lab personnel and witnesses who were at the scene of the crash,” said Greg Flannagan, spokesman for the Montgomery County Prosecutor’s Office. “The grand jury ultimately determined the facts did not support any felony charge. There was no evidence to support a conclusion that drugs or alcohol caused the collision.”

Dayton police Lt. Larry Faulkner, who supervises the traffic investigators, called that “unfortunate, but those are the facts.”

Police then decided to look at misdemeanor charges. Sexton said they were hindered by how the vehicular homicide laws are written.

Some vehicular homicide offenses are felonies, while others are misdemeanors. The problem prosecutors had was that McGinnis did not commit any moving violations at the time of the accident, Sexton said.

The law requires that the death be a “proximate result” of driving drunk, or of another violation. You can also get charges if the driver is found to have driven recklessly or negligently. Sexton said none of those sections would apply in this case.

“Because he’s a functional alcoholic, he gets a pass,” Sexton said. “Since you can handle your alcohol, you get a pass. That seems to be an unfair result.”

Ohio Public Defender Tim Young disagreed, and said that it sounds like the prosecutors did not charge McGinnis properly if he drove under the influence and was responsible for a child’s death.

“Drunk and running over a child — there are tons of laws on our books that we have to deal with that,” Young said. “It seems like a try-able case to me.”

State Sen. Bill Seitz, R-Cincinnati, a leading advocate for criminal justice reforms in the face of dwindling public resources, also disagreed.

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