Wrist Slap for DWI Killer After Brooklyn DAs Decline to Charge Homicide

A convicted drunk driver was sentenced this week to probation, a nominal fine, and a six-month license suspension for killing a Brooklyn pedestrian.

Shortly after midnight on July 5, 2013, 27-year-old Roxana Gomez was walking at Flatbush Avenue and St. Marks Avenue when Eric Nesmith hit her with a BMW sedan, according to witness accounts and the Post. Gomez, a Columbia grad student who worked for the human rights group MADRE, suffered massive head injuries and was administered CPR by an emergency room nurse who lived near the scene. She died on July 10.

The Post reported that Nesmith, then 25, of Newark, had a BAC of .126 -- far above the .08 legal limit for driving -- and "admitted to cops he had consumed up to six Coronas" while celebrating Independence Day before the crash. FDNY first responders said he was speeding. Yet Nesmith was not charged with homicide by former Brooklyn District Attorney Charles Hynes or his successor Ken Thompson.

"An accident reconstruction expert concluded that alcohol was not a contributing factor in the death of the pedestrian in this case," a spokesperson for Thompson's office told Streetsblog in January.

Through a legal aid attorney, Nesmith pled guilty to operating a motor vehicle while intoxicated, an unclassified misdemeanor that carries a maximum sentence of a year in jail, three years probation, and a $1,000 fine. On Tuesday, Judge Raymond Rodriguez sentenced him to three years probation and fined him $500, with no jail time, according to court records.

For killing Roxana Gomez while driving drunk, Eric Nesmith had his license suspended for six months, the default penalty mandated by state law, and six months with an interlock ignition device installed on his car.

Outrageous as it is, the outcome of this case is not at all unusual. New York State law and the courts effectively favor DWI killers. To get a vehicular homicide conviction, prosecutors must prove that impairment caused a motorist to operate a vehicle in a manner that caused death. Due to the vagaries of state code, this burden of proof is often insurmountable, and it is therefore common for NYC prosecutors to decline to bring homicide charges against drunk drivers who kill pedestrians.

Nesmith is due back in court in June.