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Barbara Kurth DUI #2 - 12/08/78

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Click here or scroll down to view the transcriptions for these documents.

Commentary:

This page shows the public documents for one of the three known Barbara Kurth DUIs that she pled guilty to. These and the other two sets of DUI documentation revealed at this website counter Barbara Kurth's statements denying DUI convictions. One example of such denial would be her statement in the May 16, 1998 Palm Beach Post where she is quoted as saying, "I wasn't convicted of any kind of driving under the influence. They won't have convictions. As usual, they don't have the documents proving anything they are saying."

While Stephen Fagan's grave concern for the children's safety was based on certain knowledge of Barbara Kurth's drinking problem, the DUI documentation was not available to him at the time of the custody case, and the court ignored the testimony of Kurth's neighbors describing her frequent inebriation. The so-called investigation ordered by Family Services did not even include speaking with the three neighbors who witnessed the abuse and called the police.

In one DUI incident Kurth's blood alcohol level was .25, over three times today's legal limit, while driving with the children, then ages one and four. Had Stephen Fagan not chosen to take extraordinary action, the children would have likely continued to be subject to such extreme danger, with the high potential for disastrous results. Kurth told the court she did not have a drinking problem in spite of these three convictions which she kept secret and which Stephen did not know about at that time. The high blood alcohol levels of the DUIs also underline the baselessness of the narcolepsy defense.

According to Kurth neighbor Helenmary Wilk's affidavit regarding neglect and intoxication, she also states that "Barbara told me that her husband, Warren Waugh, was leaving for California, that she had his ticket, and that she intended to join him there with the children." If Stephen Fagan had not acted before Kurth left with the children, he feared that the opportunity to protect the children from tragedy would have been lost.

The original DUI documents follow, with easier-to-read transcripts immediately following, or click here to skip down to the transcripts.

Source Document:

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Transcriptions:

BURLINGTON POLICE DEPARTMENT
AFFADIVIT OF PROBABLE CAUSE FOR ARREST

STATE OF VERMONT     )
COUNTY OF CHITTENDEN ) SS.

Now comes Patrick T. Foley affiant, being duly sworn and on oath deposes and says he has probable cause to believe that Barbara Ellen Fagan has committed the crime of Driving While Intoxicated, in violation of T23 V.S.A. Sec. 1201(a)(2).

(1) An investigation has been made which leads me to believe this offense has been committed because:

A. On Friday, 12/27/78, at approximately 19:11 hrs. affiant was dispatched to Buell Street, and South Winooski Avenue in regards to a motor vehicle accident being investigated by Ptl. E. Strong.

B. Affiant informed by Ptl. Strong that the Respondent (Barbara Ellen Fagan) admitted to him as being the operator of Mass. reg (redacted), 1979 Ford Ltd, which was involved in the accident.

C. Affiant, also, informed by the Respondent (Barbara Ellen Fagan) that she was the operator of the above mentioned vehicle.

D. Affiant detected an odor of intoxicants on the Respondent's (Barbara Ellen Fagan) breath. Her eyes were watery, pupils dilated. Respondent (Barbara Ellen Fagan) was unable to perform the dexterity tests satisfactory.

E. Results of the Gas chromatograph Autohaler given to the respondent (Barbara Ellen Fagan) administered by Affiant on 12/08/78, at approximately 21:40 hrs., were: 0.25%

(2) I believe Barbara Ellen Fagan committed the crime of DRIVING WHILE INTOXICATED as set forth in the above paragraphs based on the following:

A. Respondent (Barbara Ellen Fagan) was identified by a valid Massachusetts license as; Barbara Ellen Fagan.

B. Respondent (Barbara Ellen Fagan) was the operator of a 1977 Ford LTD bearing Mass. reg. (redacted), and did operate said motor vehicle while under the influence of intoxicating liquor.

Affiant (signature of Patrick T. Foley)

Subscribed and sworn to before me on December 27, 1978

 

FIELD PROCESSING FORM  OFFICER'S NAME
  Ptl Patrick T Folley
FOR SUSPECTED DWI  DEPARTMENT
  Burlington Police Dept.
  CASE NUMBER  28136
OPERATOR'S NAME (Last, First, Middle)
Fagan, Barbara Ellen
SEX
F
BIRTHDATE
09/04/4
ADDRESS (Street, Town, State, Zip)
(redacted)
TEST RESULTS
Br
DATE
12/08/76

TIME OF CONTACT
 
  OBSERVATIONS (At time of contact):
 MOTOR VEHICLE COLLISION W/ PARKED VEHICLE -
 SOUTH WINOSKI/CHERRY -
 VEHICLE LEFT 247' (FEET) OF SKIDD MARKS.
LOCATION
BUELL STREET - EAST - SO. WINOOSKI
WHERE GOING
Robinson Pky #125
WHERE STARTED
Perl Street
Observations (vehicle):
[X] Fresh damage to car[  ] Evidence of alcohol in car[  ] Unusual conditions of vehicle
Observations (operator):
Breath: [   ] none [   ] faint [X] moderate [   ] strong
Clothing: [   ] hat [X] shirt [X] trousers [X] foot gear
Eyes: [   ] normal [   ] bloodshot [X] watery [   ] color
Pupils: [   ] normal [X] dialated (extreme) [   ] contracted (extreme)
Performance Tests given:
Speech: [   ] normal [X] slurred [   ] confused [   ] incoherent
         Methodist Episcopal, Anodized Aluminum, Aluminum   Linoleum   Around the rugged rock the ragged rascal ran.
Balance: [   ] steady [   ] falling [X] slight swaying [   ] extremely swaying
         Feet close together, stand up straight, tip head back. Close eyes. (5 seconds)
         One foot directly in front of other. Half weight on each Close eyes. (5 seconds)
         Stand on left foot. Close eyes. (5 seconds) Same on right foot.
Walking: [   ] sure [X] swaying [   ] staggering [   ] falling
Turning: [   ] sure [X] unsure [   ] staggering [   ] falling
         Walk heel to toe. Turn around. Walk back heel to toe.
Coordination:left [   ] sure [   ] slow [   ] touched bridge [X] missed
Coordination:right [   ] sure [   ] slow [   ] touched bridge [X] missed
Coordination:both [   ] sure [   ] slow [   ] touched bridge [X] missed
         Sound naturally. Raise arms straight from shoulders. Touch right forefinger to nose, then left forefinger to nose.
         Touch both forefingers together about 3 inches near toes of each foot at the same time.
Picking up coin: [   ] sure [   ] slow [   ] fumbling [   ] unable
         Stand up straight. Bend over and pick up coins near toes of each foot at the same time.
 
General Comment:

OPERATOR - VERY COOPERATIVE, - INSISTED SHE HAD NOT BEEN DRINKING - PERFORMANCE ON DEXTERITY TEST - UNSATISFACTORY - DETECTED ODOR OF INTOXICANT ON OPERATOR'S BREATH - MODERATE ACCIDENT DAMAGE - STATED TO PTL STRONE SHE WAS OPERATING.

NAME
Constance Kurth
ADDRESS
(redacted)
POSITION
RF

SEX
F
AGE
52
NAME
Rachael Fagan
ADDRESS
(redacted)
POSITION
RF

SEX
F
AGE
4-1/2
NAME
Wendy Fagan
ADDRESS
(redacted)
POSITION
REAR

SEX
F
AGE
1-1/2

 

BURLINGTON POLICE DEPARTMENT
            BURLINGTON, VERMONT            

[X]BreathJaw #   2079Subject's Name  Barbara Ellen Fagan
[   ]Blood/AlcoholKit #   Complaint No.  28136
 
Placed in Officer In Charge Room refrigerator on 12/08/78 at 19:41 hours.
 
By: Officer (signature, Ptl Patrick T. Foley)
 
 
[X]BreathJaw #   2079Subject's Name  Barbara Ellen Fagan
[   ]Blood/AlcoholKit #   Complaint No.  28136
 
Removed from Officer In Charge Room refrigerator on 12/11/78 at 08:00 hours and taken to Vermont State Health Department Laboratory.
 
By: Officer (signature, Cpl William B. LaWare)
 
[X]BreathJaw #   2079Subject's Name  Barbara Ellen Fagan
[   ]Blood/AlcoholKit #   Complaint No.  28136
 
Received at Vermont State Health Department Laboratory on 12/11/78 at 08:20 hours.
 
BY:(signature, illegible)
TITLE:Chemist
 
 
RESULTS OF CHEMICAL TEST: 0.25%

 

Miranda Warnings and Public Defender Rights Form

Name: BARBARA ELLEN FAGANOfficer's Name: PTL. Patrick T. Foley
Date: 12/08/78
Time: 19:29

Before we ask you any quesions you must understand your legal rights.

You have the right to remain silent.

Anything you say can be used against you.

Before we ask you any questions you have the right to talk to a lawyer and get his advice, and you have the right to have a lawyer here with you while we are questioning you.

You have the same right to the advice and presence of a lawyer while you are being questioned even if you cannot afford to hire one.

If you cannot afford a lawyer and you want one, you have the right to be represented by an attorney at public expense. In Vermont this attorney is called a "Public Defender" and the "Public Defender" will be contacted for you before we ask you any questions. If you decide to answer our questions now without a lawyer, you will still have the right to stop answering our questions at any time until you talk to a lawyer.

ACKNOWLEDGEMENT OF RECEIPT OF RIGHTS:

I have had the above statement of rights read to me and fully understand that I am entitled to be represented by an attorney at public expense if I cannot afford one.

Signature: Barbara E. Fagan

Date: Dec 8/78 Time: 7:31PM

Officer who read Rights: Ptl Patrick T. Foley

Witness: PTL Patrick T. Foley

WAIVER OF RIGHTS:

I have been advised of my rights to remain silent, that anything I say can be used against me, and that I have the right to a lawyer to be present with me while I am being questioned. I understand these rights and am willing to answer questions and make a statement. I do not want a lawyer at this time and I understand and know what I am doing. No threats have been made to me and no pressures of any kind have been used against me.

Signature: Barbara E. Fagan