Wednesday, Jan. 9, 2008

Hit-and-run driver attended happy hour before fatal collision

Columbia man will serve one year for fleeing scene after hitting Esai Lopez

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Twenty minutes before the collision that killed a 17-year-old Magruder High School student last July, the driver who pleaded guilty to leaving the scene attended a happy hour at which he and three others consumed 26 alcoholic drinks in less than four hours, according to a police report.

Brian L. Schwartz, 43, of Columbia will spend a year in jail for the misdemeanor hit-and-run.

In a courtroom overflowing with supporters of both Schwartz and the victim, Esai Lopez of Gaithersburg, Montgomery County Circuit Court Judge DeLawrence Beard sentenced Schwartz to two years in jail with one year suspended. He also ordered 18 months probation after Schwartz’s release from the Montgomery County Correctional Facility.

Schwartz pleaded guilty in December to ‘‘leaving the scene of an accident resulting in death,” which carries a maximum of five years in jail and a $5,000 fine. A reduced sentence was recommended as part of his plea agreement.

‘‘I’m embarrassed by my decision,” Schwartz said to the Lopez family in court Monday. ‘‘For months, I’ve waited for this moment in trying to face you and say I’m sorry to you. I don’t know where to begin to express my sympathy. ... My words seem to trivialize Esai’s life, your loss, my sorrow and the incomprehensible hurt that you guys must be going through. I wish I could have met Esai in life, and not through this horrible tragedy. With all my being, I am sorry.”

Lopez was attempting to cross Redland Road in Derwood at about 9:30 p.m. on July 31 when he was struck by Schwartz, who was driving his silver BMW. Witnesses told police the car stopped briefly a short way from the impact, but took off.

Police issued an area-wide alert for the car and Schwartz’s 2005 BMW 530I was found, with a new windshield, in a parking garage in Greenbelt three days after the incident, following calls from Schwartz’s lawyer and the auto body shop that replaced the window.

A supplemental police report dated Dec.13 — two days after Schwartz entered his guilty plea — states that one of Schwartz’s co-workers paid the tab for two glasses of wine, four beers and 20 hard-liquor drinks at about 9:15 p.m. at Thai Farm Restaurant in King Farm in Rockville.

‘‘The collision occurred at 9:34 p.m., a few miles down the road from the restaurant,” the report states.

Schwartz’s companions that evening told police that everyone, including Schwartz, ‘‘was drinking alcoholic beverages,” according to the report.

Given that Schwartz fled the scene and was not immediately questioned by police, there was no opportunity to give him a blood alcohol test to determine if he was intoxicated.

In an Oct. 30 interview with police, Schwartz told investigators that he attended the happy hour and provided the colleagues’ names, according to the police report.

Seth Zucker, spokesman for Montgomery County State’s Attorney John McCarthy, said in an interview that Schwartz did not admit to consuming alcohol.

‘‘We have, and had, no way of proving that he was or was not intoxicated,” Zucker said. ‘‘We’re talking about proving he was drinking anything, let alone anything anywhere near the legal limit. ... There’s really not much evidence at all — much less, evidence beyond a reasonable doubt.”

Although they had reservations, Esai’s family accepted the plea agreement that recommended Schwartz serve one day less than 18 months in jail plus two years of probation. An 18-month sentence would have sent him to state prison rather than the county jail.

But after learning last week about the happy hour, the Lopez family called for a stiffer sentence plus three-and-a-half years of probation, that his drivers license be suspended or revoked and that he be required to give 10 speeches about responsible driving at local high schools.

‘‘We are not satisfied. How can you snuff out a life and then get one year?” said Roy Epps, Esai’s grandfather.

Bruce Marcus, Schwartz’s lawyer, told the judge Monday that Schwartz has led and ‘‘exemplary life” with his wife Maria and their two children. Since the crash, Schwartz has lost his job as a mortgage banker in Rockville and has needed psychiatric treatment, he said.

According to Marcus, detectives determined that that Lopez was crossing the northbound lanes of Redland Road about 200 feet south of its intersection with Muncaster Mill Road and that Schwartz was not at fault.

Esai’s mother Leslie Lopez was surrounded by family as she sat in the front row during the sentencing. Esai’s older brother Jose — a 2007 Magruder graduate and freshman at Towson State University — stood next to her when she addressed the court. She told the judge that she finds herself talking to Esai in her car, that she smells his comforter several times every day and dreads the day when his scent will be gone.

‘‘I cannot explain to you the pain of losing a child,” she said. ‘‘Esai was more of a man at 17 than some are at 43. ... This world would be a better place with Esai in it.”