Tony Denunzio
Paul Wellman (file)

The DUI case against Tony Denunzio — who made headlines in October 2011 after his violent arrest was partially captured on video — was dismissed Thursday by prosecutor Mai Trieu after it became clear she wouldn’t be able to use blood-alcohol content test results as evidence in Denunzio’s retrial.

The decision was made the day jury selection was to begin. In a statement, the District Attorney’s Office said Judge James Rigali ruled that evidence of Denunzio’s blood-alcohol content level — his blood was drawn 48 minutes after his arrest, and registered at a 0.09 percent, above the legal limit of 0.08 percent — was irrelevant to whether he was driving under the influence of alcohol. As a result, the statement from the office said, there was insufficient evidence to retry the case. “The People cannot prove beyond a reasonable doubt that the defendant was driving under the influence of alcohol without the DOJ’s expert testimony regarding the defendant’s blood alcohol content,” Kelly Scott, the DA’s chief trial deputy, said. During the first trial, the jury was split 8-4 in favor of guilt on the DUI charge and a mistrial was declared. Darryl Genis, Denunzio’s attorney, called the DA’s statement false and misleading. He said Rigali simply told Trieu “what she already knew or should have known” from an earlier ruling.

During Denunzio’s first trial — he was originally facing two separate charges of driving with a blood-alcohol content (BAC) level of 0.08 percent or above and driving under the influence — the judge dismissed the charge of driving with a blood alcohol content level of 0.08 percent or above. Genis had argued that blood-alcohol tests are circumstantial evidence. With circumstantial evidence, if there are two or more reasonable conclusions and one suggests innocence and another guilt, the one pointing to innocence must be accepted. An expert for the prosecution admitted Denunzio could have had a 0.079 percent blood-alcohol level at the time of driving, Genis said, and the judge sided with him in his argument that it would not be appropriate to extrapolate back to the time Denunzio was driving. Because the judge made that decision in the first trial, Genis said, the issue couldn’t be re-litigated or used in the second trial.

The prosecution could’ve tried the case without the BAC evidence, but would have been hard-pressed to convince a jury of Denunzio’s guilt. In video footage of his driving the night of his arrest, Denunzio makes a few small traffic violations, but nothing that necessarily indicates he was under the influence. While the two sides might have viewed Rigali’s ruling differently, the fact remains that Genis — an outspoken attorney who has long been a pain in the sides of many deputy district attorneys — is now 2-for-2 in the biggest DUI prosecutions out of Santa Barbara in recent memory.

<b>WINNERS:</b> Outspoken DUI attorney Darryl Genis claimed victory this week after the District Attorney’s Office declined to retry his client Tony Denunzio.
Paul Wellman

In 2011, Genis successfully defended Peter Lance, a journalist who also faced DUI charges. After his arrest, Lance began investigating Officer Kasi Beutel and wrote voluminously about her in the pages of the Santa Barbara News-Press, accusing her of everything from perjury on financial documents to planting drugs on people she arrested. Police Chief Cam Sanchez strongly stood behind Beutel.

It was a result of Lance’s writing — and a subsequent Grand Jury report — that the Santa Barbara Police Department had video cameras installed in their patrol cars. Officer Aaron Tudor just so happened to be driving a vehicle with a test video unit installed when he followed Denunzio into the Loreto Plaza parking lot in October. The video showed Denunzio getting out of his car and looking back toward Tudor, who quickly jumped out of his cruiser and told Denunzio, “Stay in your car.” When Denunzio slowly turned his head away from the officer, Tudor came up behind him, grabbed his left arm, and pushed him toward Denunzio’s SUV. Tudor — then a four-year veteran of the department — performed a leg sweep, and Denunzio fell to the ground. Soon after, Tudor started striking Denunzio with his knee and his open palm. (Witnesses described closed-fist punching.) Denunzio then looked to be on his knees with the officer sort of straddling his back, but both of their faces were out of the camera’s view. Tudor could be seen using his Taser in the “drive stun” mode.

“If Aaron Tudor had beat a dog they [sic] way he beat Mr. DeNunzio, he might just now 18 months later be getting out of prison on parole,” Genis said in one email amid a deluge of emails sent over the weekend to this reporter. After reviewing the video and speaking with witnesses, District Attorney Joyce Dudley declined to press charges against Denunzio for resisting arrest or against Tudor for excessive force.

Genis questioned the amount of money spent on these two cases. (Dudley said her office doesn’t keep track of hours or staff time spent on particular cases, so it was impossible to know the total amount spent. She also said her office handled this case and all the other cases that came in during that time without additional costs). “The citizens of Santa Barbara must demand to know how much more than a half a million dollars will their DA spend to protect corrupt and violent members of law enforcement?” he emailed.

Scott, in her statement, defended her office’s actions in prosecuting Denunzio. “This office will continue to work with our esteemed colleagues in law enforcement to support public safety, uphold the law, and prosecute offenses whenever we have admissible evidence that we can present to a jury which we believe proves each charge to the standard of beyond a reasonable doubt.”


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