Child dies in DUI accident, authorities say, and misdemeanor DUI is only charge.

 Jon Silman – Times Staff Writer

HUDSON — Last year, Cathy Jo Ivancsits was drunk when she ran over her 4-year-old daughter in front of the family’s townhouse, authorities say.

The girl was dragged 16 feet underneath the SUV and died.

Ivancsits won’t face a felony charge — not vehicular homicide, not manslaughter.

Why? “The fault was on the 4-year-old child, Michelle,” Assistant State Attorney Mike Halkitis said Thursday. “The child walked into the path of the vehicle.”

The Pasco County case illustrates a somewhat perplexing tenet of the law: Sometimes a car accident is just that — an accident, even when the driver is drunk. Ivancsits, 38, was charged with driving under the influence, a misdemeanor.

Investigative reports begin with Ivancsits walking out of her townhouse on Flowers Drive around 4 p.m. on Oct. 9, 2013.

She got in her tan Pontiac Aztek. She was going to the store, she said. Her husband walked out to talk to her. The couple’s son played on the grass, and both parents thought 4-year-old Michelle was inside.

But she had wandered out, and she jumped, unseen, in front of the right side of the SUV as it began to drive away. Ivancsits kept going, dragging the girl along the road. She stopped when she saw her husband flailing in the rearview.

Later, police tape surrounded the SUV about a block from where the little girl went down. Her blood was still on the street.

“It was a traffic accident. It was nobody’s fault,” Ivancsits said in an interview with the Tampa Bay Times. “I don’t blame myself.” The Florida Highway Patrol and Pinellas-Pasco State Attorney’s Office spent nine months investigating. Among the key findings:
• Ivancsits had a blood-alcohol level of 0.158, nearly double the legal limit for drivers in Florida. She also had marijuana in her system.

• From the ground to the base of the SUV’s windshield was 46 inches. Michelle Ivancsits stood 40 inches tall. It was unlikely Ivancsits could have seen her daughter after she stepped off the curb.

• Pedestrians, according to Florida law, must stay on sidewalks and not stand in roadways paved for traffic.

“Thus, it is concluded that Michelle Ivancsits committed the offense as indicated … and contributed to her own untimely death,” FHP’s report states.

The notion that a 4-year-old child is responsible for her own death in a drunken driving crash challenges common thinking — but conforms with Florida law.

“The fact that you say it’s the kid’s fault makes it sound terrible,” said criminal defense lawyer Michael Kenny, who is a former prosecutor. “But that’s based upon the evidence. And if they don’t have any evidence stating otherwise, then all we have are the rumblings in our stomach that this is wrong, and we can’t bring charges on that.”

Recent changes in DUI laws have made it easier for prosecutors to get convictions for DUI manslaughter, said Clearwater defense attorney Roger Futerman. Before, prosecutors had to prove intoxication caused a death. Now they only have to prove that alcohol was a contributing factor.

But Halkitis noted that under the old law, prosecutors didn’t have to prove that the drunken driver was at fault. They do now.

In Ivancsits’ case, investigators couldn’t show that she caused the accident.

“She had marijuana in her system too, and a 0.15 blood-alcohol level,” Halkitis said. “She’s clearly impaired, but the second element, that she was at fault, that’s not there.”

Futerman added that in cases when the victim and defendant are strangers, the victim’s family will often call for more severe charges. But prosecutors ultimately get to decide the charges.

“Pasco has a tough State Attorney’s Office,” he said. “If they felt that (a higher charge wasn’t warranted), I’m sure they made the right decision.”

The penalty for a misdemeanor DUI is up to nine months in jail or probation and traffic school. A six-month driver’s license suspension is mandatory. It’s not very often that people go to jail for a first-time DUI, Kenny said.

Michelle’s paternal grandmother, Pamela Ivancsits, simply doesn’t understand.

How could the drugs and booze in her system not be a factor? she wonders.

“I guess you can’t fight city hall,” she said.

“If someone is incapacitated, they shouldn’t be behind the wheel,” she said. “I feel it was manslaughter. So, I don’t know. It’s a shame.”

Times staffers Alex Orlando and Natalie Watson contributed to this report. Contact Jon Silman at (727) 869-6229, or @Jonsilman1 on Twitter.

Child dies in DUI accident, authorities say, and misdemeanor DUI is only charge 07/25/14 [Last modified: Friday, July 25, 2014 10:45pm]