Click here to subscribe today or Login.
NANTICOKE — Stephen Miller had his day in court Thursday on DUI charges from June, but Miller himself was nowhere to be found.
Instead, Miller was represented by his attorney, Joe Nocito, of Kingston, at a preliminary hearing held in front of District Judge Donald Whittaker.
One of Miller’s two counts of driving under the influence, stemming from a June 12 traffic stop, was withdrawn by prosecutors because of a recent U.S. Supreme Court ruling that requires officers to obtain a search warrant in order to draw the blood of motorists arrested on suspicion of drunk driving. At the time Miller was pulled over, the law was not in effect.
“That charge is invalid,” Luzerne County District Attorney Stefanie Salavantis said of the blood alcohol content charge. “We are required to proceed on the non-BAC count.”
Miller, who was with his wife, Caroline, and two young children at the time of the traffic stop, was pulled over at the intersection of state Routes 29 and 11 in Plymouth Township.
According to a state trooper’s affidavit, Miller, of Dallas, whose son become the namesake for Kevin’s Law — a portion of a Transportation Bill that included increasing to three years the minimum penalty for leaving the scene of an accident involving death — had a blood alcohol level more than three times the legal limit. He was initially pulled over because the vehicle he was driving did not have its headlights turned on.
In memory of their 5-year-old son, Kevin, who died after being struck by a car driven by Thomas Letteer Jr. in December 2012, Miller and his wife pushed for an increase in the minimum prison sentence for hit-and-run fatalities. The family was crossing North Street in Wilkes-Barre and Letteer struck the younger Miller, then fled the scene.
Had Letteer stopped, he could have faced homicide by vehicle while driving under the influence which carries a minimum three-year sentence. Since he fled the scene and his BAC level was unable to be determined, Letteer faced a minimum one-year sentence.
Under Kevin’s Law, the penalty for those who flee fatal crashes has increased to a minimum of three years in prison.
The affidavit says Miller’s eyes were bloodshot and glassy at the time of the traffic stop, and that he smelled of alcohol. The trooper wrote that after Miller failed a field sobriety test, the trooper asked Caroline Miller to take a portable breathalyzer test to see if she could drive the car, but she refused, saying she would get a ride from someone else.
A blood test later showed Stephen Miller had a blood alcohol concentration (BAC) of 0.273 percent at the time, the affidavit says, more than three times the maximum legal BAC of 0.08 percent.
During the hearing, ADA Brian Coleman said he was confident in the evidence to prosecute Miller on the misdemeanor charge not based on his BAC level.
Whittaker left the docket open because Miller’s defense counsel submitted a brief as to why the misdemeanor child endangerment charge — as well as summary charges of careless driving and no headlights — should be dismissed.
Nocito argues that driving under the influence alone is not sufficient to sustain a charge of endangering the welfare of a child, citing a 2008 ruling in which the state Superior Court held that “driving under the influence does not create legal recklessness per se but must be accompanied with other tangible indicia of unsafe driving.”
Nocito’s brief claims the only other evidence of legal recklessness is Miller’s failure to turn on the headlights of his vehicle while driving “for a very short distance in a well-lighted area.”
Coleman has 24 hours to submit a rebuttal brief to Whittaker, who will then make a decision regarding all charges.
Efforts to reach Miller at his dental practice and his home Thursday were unsuccessful.