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Judge tosses out DUI-wheelchair case

A Hernando judge Monday threw out the case against a 46-year-old woman accused of driving drunk while operating her wheelchair.

Judge Peyton Hyslop said the case raised numerous questions about fairness.

"While sitting at home in a wheelchair taking prescribed medication, a person could be charged and convicted of DUI," said Hyslop. "A wheelchair-bound person overindulging in alcohol at a wedding, in a restaurant, at a professional football game or in the sanctity of her own home would also be subject to arrest for DUI."

Under the same logic, Hyslop said, an abled-bodied intoxicated person sitting next to the impaired disabled person "would not be subject to such arrest, and only to arrest if disorderly."

Hyslop's ruling came on his final day as a county judge, the end of a colorful and controversial 15 years on the bench. Defeated last fall by Assistant State Attorney Don Scaglione, Hyslop was often viewed as too lenient.

But his ruling Monday made Cynthia Christensen's day.

"Hallelujah," said Christensen. "It is such a relief for me because I did not deserve that. You are allowed to have a party in our yard and have a drink, you know."

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On Sept. 21, 2003, after cooking out and drinking beer with her fiance, Christensen rolled to the front yard of her home on Sealawn Drive, where her wheelchair got stuck in the fine sand.

Christensen fiddled with the joystick and, in an instant, her wheelchair hopped a 4-inch lip at the edge of her yard in Spring Hill and collided with a passing Ford minivan.

Although not seriously injured, Christensen was cited months later on the DUI charge after results of a blood test she had taken at Oak Hill Hospital showed a blood-alcohol level of 0.102 percent. State law presumes impairment at 0.08.

Christensen acknowledged having a few beers and taking her prescription medication. She suffers from degenerative disc disease, osteoarthritis and scoliosis, according to court documents.

For the next year, Christensen wheeled in and out of a cramped courtroom nine times.

DUI-wheelchair cases are rare and usually tough to prosecute.

In May 1993, a Kentucky judge ruled that a drunken man who rolled into the roadway on his motorized wheelchair to avoid a blocked sidewalk could be charged with DUI. But prosecutors acknowledged it would have been difficult to convict him. The man eventually entered a pretrial intervention program.

Five months later, a New Jersey Superior Court judge overturned a DUI conviction saying the state's drunken driving laws did not apply to wheelchairs.

In January 2004, a disabled Pennsylvania man pleaded guilty to public drunkenness and disorderly conduct after prosecutors withdrew a charge that he was driving his motorized wheelchair while drunk.

Christensen's case got a boost in August when her attorney, Louis Brunoforte, working for free, filed a motion to dismiss the charges.

The case boiled down to how both sides defined a wheelchair.

Brunoforte argued that Christensen could not be charged with DUI because the Hoveround did not meet the definition of a vehicle. The battery-operated device that travels up to 5 mph provided transportation and gave her the ability to walk, he contended.

The State Attorney's Office argued that the wheelchair met the legal definition of a vehicle. Prosecutors further argued that the wheelchair provides Christensen with transportation and does not give her the ability to walk.

In the end, Hyslop determined that allowing the definition of a vehicle to include a wheelchair would violate her constitutional rights to move freely because it would treat disabled people differently from others.

"People could have a drink if they want to," Hyslop said. "You and I don't have to do special maneuvers if we want to drink. A person in a wheelchair could never tie one back because they would always be stuck in a wheelchair."

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Hyslop's ruling was the latest in a judicial career notable for bucking prosecutors in favor of the little guy.

Hyslop long has argued, for example, that setting unreasonably high bail imposes a sentence without a trial _ a contention upheld by the Florida Supreme Court in a 2000 ruling.

In October 2003, the circuit's chief judge, Victor Musleh, revoked Hyslop's authority to preside over felony first appearances.

Hyslop's view that first appearance judges are within their rights to lower bails, based on an evaluation of the case, irked circuit judges, prosecutors and law enforcement officers.

In 2000, Reader's Digest magazine named Hyslop to the worst judge list, citing criticism from law enforcement officials.

In 1999, Hyslop ruled that the eight-hour detention of DUI suspects _ on top of community service and fines _ constituted double jeopardy. Those rulings were later overturned by the appeals court.

Assistant State Attorney Lisa Herndon said her office has not decided whether it will appeal the ruling in Christensen's case.

Hyslop, who spent Monday hearing about 300 cases of misdemeanors and traffic offenses, will not be around to hear Christensen's other pending case.

She was charged with animal cruelty after she was accused of biting the head off a 1{-foot python last May. Christensen denied the charge and isn't looking forward to returning to court. But Monday, she just wanted to celebrate.

"I am so happy," she said.

Duane Bourne can be reached at (352) 754-6114 or