Despite frequent calls on Long Island for tougher punishment in fatal drunken driving crashes, prosecutors rarely bring murder charges in such cases and usually are not successful when they try.
Michael Grasing, 31, of Babylon, is only the third person in Suffolk since 1980 to be charged with murder in a drunken driving case. In both of the previous cases, juries acquitted the defendants of murder and convicted them of manslaughter.
In Nassau, District Attorney Kathleen Rice has made fighting drunken driving a priority. Yet even she has brought murder charges only once against a drunken driver -- Juan Cruz, who pleaded guilty last year to second-degree manslaughter in the September 2010 death of his friend after driving 12 miles the wrong way on the Long Island Expressway.
Her office also prosecuted Martin Heidgen, who was charged with murder by her predecessor, Denis Dillon, after he drove the wrong way on the Meadowbrook Parkway and killed Katie Flynn, 7, and limo driver Stanley Rabinowitz.
Heidgen was convicted of murder in 2008.
In the most recent Suffolk case, Edwin Rodriguez Sr. drove drunk at high speed into the back of a car full of teenagers on New Year's Eve 1998 on the LIE in Medford. Their car exploded, incinerating three people inside.
The jury in that case asked several times for the definition of "depraved indifference to human life," an element prosecutors must prove in such cases, before acquitting Rodriguez of murder.
Depraved indifference is "often difficult to prove," said Rodriguez's attorney, Joey Jackson of Manhattan. "To elevate it to a murder, it's very difficult."
Another complication is that some appellate courts have ruled that extreme intoxication may prevent defendants from forming the necessary state of mind for depraved indifference, said defense attorney Brian Griffin of Garden City.
Suffolk District Attorney Thomas Spota acknowledged that such cases are difficult to prove, but he said the Grasing case is different because a bystander warned him he was going to kill someone.