He collided head-on with a Buick and killed the driver, 26-year-old Juan Garcia, Jr., who was returning home from midnight Mass.
Tunison, who did not have a valid driver’s license and was found to have a blood-alcohol level of 0.21 — nearly three times the legal limit — eventually pleaded no contest to two charges of aggravated vehicular homicide and was sentenced to eight years in prison.
But in a practice that is being promoted statewide, law enforcement and the Ohio Department of Public Safety decided that wasn’t enough. In this case, the Ohio Highway Patrol called in the Ohio Investigative Unit to conduct what’s called a trace-back investigation to determine who was at fault for serving Tunison so many drinks when he was drunk.
Since that January, the OIU has looked into 290 such referrals from the highway patrol and other law enforcement agencies and, in one case, a family, according to data analyzed by this newspaper.
Those incidents resulted in a total of 160 deaths and 242 injuries. The subsequent cases yielded 53 arrests of servers on criminal charges and 38 citations against liquor permit holders.
The trace-back investigation in the Toledo case uncovered a security video of Tunison drinking heavily and staggering around in the bar. It also yielded a Facebook confession by Tunison stating that he “killed a young man by the name of Juan Garcia Jr.,” and texts between the bartenders and servers at Chuck’s.
The following month, Ohio Investigative Unit agents cited the bar owner and one bartender for serving alcohol to an intoxicated person. On April 10 of this year, the Ohio Liquor Control Commission revoked the liquor license of Chuck’s. The owner, Walter “Bimmer” Smarszcz, appealed the revocation, but was denied by the commission in May.
The Lucas County Prosecutor decided not to prosecute charges against the bartender, according to Raymond Rodriguez of the OIU division in Toledo.
The Garcia family has sued the bar, the bartender, Tunison and a family member who owned the Ford Expedition for $25 million. A jury trial is set for Dec. 14 in Lucas County Common Pleas Court.
Following the horrific Christmas morning crash, the OIU, which includes 70 enforcement agents and a total staff of 93, put an emphasis on trace-back investigations in order to hold bartenders, servers and adults who provide alcohol to minors responsible for ensuing crashes or other incidents such as bar fights.
The OIU was made part of the Ohio Highway Patrol, and any alcohol-related crash or incident investigated by troopers is automatically referred to the OIU for a trace-back investigation, said Agent-in-Charge Eric Wolf.
“The trace-back name itself was new as of January 2013,” Wolf said. “But we’ve conducted these types of investigations for years. Prior to that, they were called reconstruction cases or source cases. They were the same types of investigations, but January 2013 was the renewed emphasis.”
The data analysis shows that local law enforcement had referred 75 cases since 2013 — about a quarter of all referrals — to the unit for possible trace-backs. The rest came from the Ohio Highway Patrol, except for one call from a family.
But the data also show that all trace-back cases are not as easy to make as the Toledo case against Tunison and Chuck’s bar.
Of the 290 referred incidents, the OIU found that almost two-thirds either didn’t include enough evidence to open a full investigation or were closed without charges being filed after an investigation.
OIU investigators found that 44 of the referrals didn’t have enough evidence to launch an investigation and 145 were investigations that ended up being closed as unfounded. Another 23 remained open as of mid-August, when the data was obtained by this newspaper.
The OIU’s trace-back investigations can result in criminal charges that are handed to local prosecutors and tried in local courts, as well as civil citations against the liquor permits that are prosecuted by a division of the Ohio Attorney General’s Office and heard by the liquor control commission.
Wolf said investigations can be difficult to document. Investigators, he said, have to recreate what happened and prove that bartenders or servers should have known they were serving someone who was too intoxicated.
“It all goes back to what kind of evidence we can get out of the scene,” Wolf said. “How many witnesses are we dealing with? Were there individuals in the vehicle that were injured that we can later interview? Were there fatalities involved?
“It’s sometimes hard to be able to establish that, yes, this bartender at this time should have known that this person was intoxicated to the point that they were not able to take of themselves. Or they were intoxicated to the point that they should not be driving. And it makes it very difficult to establish those facts that would lead to additional criminal or civil citations.”
The bar for enforcement action, in other words, is fairly high. Half of the referrals were labeled “Closed – unfounded” after an investigation. But that doesn’t mean there was no wrongdoing involved, Wolf said.
School teacher killed
On Feb. 21, 2014, 51-year-old Todd R. Shaw, a repeat drunk driver, left a Cincinnati bar after drinking four beers and three shots of liquor in 3½ hours. He got into his van, and at 6:25 p.m. hit and killed a Milford school teacher who was riding his bike.
According to Clermont County prosecutor Vince Faris, Shaw didn’t slow down and was found six hours later — too late to administer a blood-alcohol test. Nevertheless, Shaw, who had six previous drunk driving charges in Ohio, admitted hitting and killing Frederick R. Carey, a 51-year-old teacher at Cincinnati Country Day School and newly married father of two young daughters.
Shaw was sentenced to 9 1/2 years in prison by a Clermont County Common Pleas Court judge on five counts of aggravated vehicular homicide, driving under the influence of alcohol and leaving the scene of an accident.
OIU investigators were called in. Security video from Ethel’s Tavern showed Shaw consuming the seven drinks, and also showed a bartender selling Shaw a bag containing beer before he left.
Agents cited the bar and charged bar employee Linda Coomer, 61, with selling liquor to an intoxicated person, a misdemeanor. She had a pre-trial hearing in Hamilton County Municipal Court on Tuesday.
The bar’s case is yet to be scheduled before the Ohio Liquor Control Commission.
At Shaw’s sentencing, Faris said Shaw began drinking in the morning at a bar in New Town, then moved to Ethel’s at 2:43 that afternoon. Shaw was a regular there, Faris said.
At 6:21, Faris said, the video shows Shaw getting a six-pack to go and opening one to put in his pocket. Four minutes later he killed Carey as he was riding his bike on Round Bottom Road.
“The two witnesses saw him strike the bicyclist,” Faris said. “The bicyclist flew up into the air, hit the windshield and then went flying about 100 feet.
“(Shaw) told people various stories that night, including a friend and his parents that he thought he hit a sign, and then he thought he hit a deer. But he later admitted that he knew he hit somebody.”
Carey’s widow, Deborah Floyd, said the fatal accident and loss of her husband “changed my life forever,” but she is grateful for the OIU and its investigation.
“They have been so professional, so thoughtful,” said Floyd, who teaches at the school near Indian Hill where her husband taught. “They’ve called me. They check on me. They kept me updated.
“Their No. 1 goal was to try to do right by the case, and use anything available to them. And that’s when they described this trace-back procedure that they were going to try in this case.”
Without the trace-back investigation, she said, prosecutors might not have been able to prove Shaw was drunk.
“I am both grateful that they tried it, and they were successful,” Floyd said. “I am also very glad that Ethel’s had the kind of surveillance video that they had. Without all those things coming together, you don’t have a case. It’s all one bartender saying this, and one bartender saying that.”
Party hosts liable
Not all trace-back investigations lead to a liquor license. Party hosts and adults providing alcohol to the under-aged can also find themselves charged with crimes. The OIU investigated about a dozen such cases last year.
For example, at a New Year’s Eve party on Dec. 31, a Fairfield woman supplied beer to under-age visitors, OIU investigators say. One of those in attendance, 20-year-old Aaron Jones of Hamilton, subsequently crashed his Ford Mustang into a stone sign in the median of North Washington Boulevard and died in a hospital two days later. Jones’ blood-alcohol level was higher than .20 – 10 times the legal limit for underage drivers.
Hamilton police called in the OIU. As a result, the party host, Doreen A. Schafer, 52, was charged with furnishing alcohol to under-aged persons, a first-degree felony. Schafer has a pretrial hearing set for Nov. 12 in Fairfield Municipal Court, and a jury trial set for Dec. 12. She faces up to six months in jail.
The most recent trace-back investigation in the area resulted from a one-car crash on May 25 in Dayton that killed two attorneys.
At 2:30 a.m., a black Ford Mustang driven by Andrew Arnett, 27, of Dayton, failed to negotiate the curve on Edwin C. Moses Boulevard near UD Arena and hit a pole. Dayton police said speed appeared to be a factor in the crash.
The passenger, Glenn Shinaberry, an assistant public defender from Knoxville, Tenn., was killed in the crash. Arndt died a week later in Miami Valley Hospital from injuries suffered in the crash.
After an OIU trace-back investigation, agents cited Timothy’s on Brown Street for furnishing beer or intoxicating liquor to an intoxicated person; and also sale of beer or intoxicating liquor to an intoxicated person.
The case will be heard by the Ohio Liquor Control Commission.
Not all trace-back referrals to the OIU have to come from law enforcement.
OIU Agent-in-Charge George Pitre got a call May 27 from a family member of a man who had fallen and hit his head in a Summit County bar 10 days earlier. The man later died from the injuries, Pitre said.
After the investigation, agents issued a liquor violation notice — a civil citation that will go against the liquor permit — for serving alcohol to an intoxicated person. That case will go before the Liquor Control Commission.
Pitre said members of the public should not hesitate to call Ohio Investigative Unit offices if they have reason to believe an accident that results in death or injuries could be related to alcohol being served to someone who is intoxicated.
“Even though it was a sad situation, I was pleased to hear from the family,” Pitre said. “We’re getting the word out as much as we can. Any allegation where somebody is believed to be overserved, that door is open.”