Bollea punishment not a sure thing

If he is convicted, his age, lack of criminal history and driving record could be considered.

By TAMARA EL-KHOURY, Times Staff Writer
Published November 9, 2007

A variety of legal factors will determine if 17-year-old Nick Bollea faces jail time or avoids punishment for his role in a traffic crash that left his passenger in a coma.

Bollea's age and lack of criminal record will likely be considered, as will his spotty driving history. Was he racing? How much of a role did alcohol play?

And how significant was it that passenger John Graziano was not wearing a seat belt when Bollea's Toyota Supra slammed into a palm tree on Aug. 26?

Bollea's attorney, Morris "Sandy" Weinberg Jr., said Thursday his client plans to plead not guilty to the charge of reckless driving with serious bodily injury. The felony is punishable by up to five years in prison.

Bollea also faces two misdemeanors -- using a motor vehicle in the commission of a felony and being a driver under 21 operating a vehicle with a breath-alcohol content of 0.02 percent or higher -- and a traffic infraction for illegal window tinting.

Bollea, the son of wrestling star Hulk Hogan, was charged as an adult. Weinberg said it may be up to a year or longer before the case is resolved.

Attention on seat belt deflecting blame?

Weinberg and colleague Kevin Hayslett have already tried to focus public attention on the role seat belts played in the crash. They gave a statement saying his family will work to increase public awareness about the importance of wearing a seat belt.

"The tragedy to both families is compounded by the fact that unfortunately John was not wearing his seat belt," the statement read. "Thankfully, Nick was wearing his."

Kimberly Kohn, the attorney representing Graziano's father, Edward Graziano, said she was stunned at the statement, which she described as a deflection of blame.

"If they're going to be doing a campaign, I think they should do a campaign on excessive speed, a campaign on underage drinking and a campaign on underage drinking and driving," Kohn said.

George Tragos, the attorney representing John Graziano's mother, Debra Graziano, said the statement was "misdirection to focus attention where it shouldn't be."

But Weinberg said he was stating facts, not attempting to shift blame.

"The reality of the situation is this is an accident, and John was injured because he didn't have his seat belt on," he said.

The seat belt issue is an argument for civil court, not criminal court, said Joe McDermott, a criminal defense attorney in St. Pete Beach who is not involved in the case.

"It makes a difference on the civil side because if you're not wearing a seat belt you can't claim damages to the extent that your seat belt may have prevented injury," he said.

Attorneys for Graziano's parents have said a civil suit against the Bolleas is likely.

Assistant State Attorney Bruce Bartlett agreed the seat belt issue is for a civil jury to decide. In the criminal case, "whether Graziano has his seat belt on or not doesn't change the fact that (Bollea) was driving recklessly and caused a crash which led to the injuries of John Graziano," he said.

According to state law, it is the responsibility of an adult sitting in the front passenger seat of a moving vehicle to put on a seat belt.

Bollea racing before crash, witnesses said

Several witnesses told investigators that they saw Bollea racing another car before the crash. And a blood test revealed that Bollea had alcohol in his system, though it was lower than the level at which Florida law considers a driver impaired.

The questions about racing and alcohol likely contributed to the decision to charge Bollea as an adult, said Joe Episcopo, a local criminal defense attorney with no connection to the case.

Just weeks before the accident, Pinellas Park police pulled Bollea over for driving 82 mph in a 45-mph zone. He was cited for speeding in a construction zone with workers present and not wearing a seat belt.

In April, he was cited for going 106 mph in a 70-mph zone in Osceola County, according to state driving records.

If Bollea is sentenced, the punishment could range from probation to prison time, depending on whether the judge sentences him as a juvenile; a youthful offender, who must be younger than 21; or an adult.

In Bollea's situation, the adult sentencing guidelines call for a year in jail if he is convicted, Episcopo said. However, Episcopo said probation is a more likely punishment because Graziano's mother has shown support for the Bollea family.

If Graziano dies as a result of injuries from the accident either before or after the criminal charges against Bollea are resolved, charges could be upgraded, Bartlett said.

Jail not always in the cards for first-timers

It's not uncommon for young, first-time offenders facing felony charges to avoid jail time.

In July 2004, the teenage son of Tampa lawyer C. Steven Yerrid was not charged with a crime for his part in a traffic accident that killed a 33-year-old nurse.

A device in Charles Gable Yerrid's car put his speed at 78 mph seven seconds before he hit Nancy Christine White Bradley's car in August on Bayshore Boulevard. But prosecutors said that under the law, speed alone is not enough to charge someone with a crime.

Instead, the 17-year-old was issued a civil traffic citation: unlawful speed involving death.

In November 2005, Jennifer Porter, now 31, was allowed to avoid jail time after pleading guilty to leaving the scene of an accident.

Porter drove away after a collision with four siblings, ages 2 to 13, who were crossing a dark street near North Tampa's Muller Elementary, where Porter worked as a dance teacher.

The impact killed 13-year-old Bryant Wilkins and his 3-year-old brother, Durontae Caldwell, and left the two others seriously injured.

Porter was sentenced to two years of house arrest and three years of probation.