She had 3 DUI arrests before killing a woman. Here’s why she still had a license
As she was hauled away to prison on April 20, a cycle of drinking and driving by Kelly Ann Conkin came to an end.
The Clover, S.C., woman had been sentenced to 12 to 15 years in prison for driving drunk and causing a wreck on South Tryon Street in the Steele Creek area that killed a 79-year-old woman in the summer of 2016.
While it was the first time someone had been killed as a result of Conkin's drinking, it was not her first time driving drunk.
In the three-and-a-half years leading up to her fatal wreck, Conkin had three drunken driving charges and two convictions, which raised a question: How did she still have a valid license by the time of the deadly crash last year?
An investigation by the Observer showed the answer is a combination of factors:
After her first drunken driving charge, she was allowed to plea down to a lesser charge and avoid the DUI conviction. Had she been convicted after that first arrest, it might have triggered harsher penalties in her subsequent arrests that would have kept her from legally driving.
It also appears South Carolina authorities were not aware she had a conviction in North Carolina when she was sentenced for a South Carolina drunken driving offense – allowing her to escape heavier driving restrictions and remain on the road at the time of the fatal accident.
Charlotte lawyer Bill Powers, who represented Conkin, said his client deeply regrets her actions and how they affected the victim's family.
"She's not an evil, evil person, and she is pretty consistent with everyone I've ever represented with how they feel," he said. "For the rest of their life, they realize they've robbed someone else and their family of their life."
A fatal wreck
Conkin, 24, has a legal history of driving intoxicated that began long before Aug. 20, 2016, when she slammed into a Toyota and killed Cecelia Buitrago de Gonzalez, a grandmother visiting family in Charlotte from South America. Gonzalez was a mother of eight, ran her own clothing design business and aided the homeless in Bogota, Colombia.
Conkin had a .21 blood alcohol concentration the night of the crash – well above .08, the legal limit in both Carolinas.
Her arrests began in December 2012 in her hometown of Clover, about 30 miles southwest of Charlotte, when she was 19. Conkin was charged with DUI and a police report said she had a .11 blood alcohol concentration. (The North Carolina offense is "driving while impaired," while South Carolina calls it "driving under the influence.")
But instead of being convicted for what would have been her first DUI, Conkin pleaded to a lesser charge of reckless driving in May 2013. She was ordered to pay a fine, and the DUI charge was later expunged from her record, officials with the city of Clover told the Observer.
In the year that followed, she received two more drunken driving charges and both resulted in convictions. One was in North Carolina and one was in South Carolina.
In October 2013, Conkin was arrested in Charlotte, a few miles from where she'd later cause the fatal accident, and was charged with driving while impaired. She had a .13 blood alcohol concentration. She was convicted in the incident in July of 2014, and lost her license to drive for a year.
A looming court appearance for driving while impaired wasn't enough, however, to keep Conkin from being charged with driving drunk again.
She was charged a third time in South Carolina in May 2014, just two months before her July 2014 conviction in North Carolina. The charge was driving with an unlawful alcohol concentration, a parallel charge that carries the same criminal consequences as a DUI. She pleaded guilty in September 2014, paid a $500 fine and had a six-month license suspension from York County, records show.
Pleading to a lesser charge
Former Clover officer Owen Kokinda remembers Kelly Ann Conkin, but said he doesn't remember arresting her for her first drunken driving charge.
He now owns his own business and lives in Charleston. Clover, a town of about 6,000 people as of 2014, is small enough that when Kokinda was an officer there, he and Conkin went to the same gym. His fiancee and Conkin were even acquaintances at one point, he said.
Conkin ended up pleading down to a reckless driving charge, though Kokinda said he doesn't remember the case. It's unclear from interviews and court records why Conkin wasn't convicted of drunken driving. But Kokinda, law enforcement officials and attorneys said defendants are often able to plead to a lesser charge in South Carolina.
Police and prosecutors said South Carolina's DUI laws make it difficult to prosecute a case. For example, specific rules have to be precisely followed during a field sobriety test. The exchanges have to be captured on camera, and any small mistake can derail a conviction.
"Literally, if you didn't have the person's feet on camera, it was enough for them to not have a conviction," Kokinda said.
Powers, the defense attorney, supports the video requirement because it creates police accountability. "The videotape doesn't lie," he said. "There's no nuance to it. It's just you either did something or you didn't do something."
Matthew Shelton, a senior solicitor (prosecutor) for the 16th Judicial Circuit in York County, said the safeguards for offenders make it easy for a case to be dismissed.
"If we get a conviction on half of our cases, we're doing well," he said.
Judge Herman Howell, who presided over the 2012 case, declined to answer questions from the Observer.
Avoiding harsher punishment
When Conkin's 2012 DUI charge was pleaded down, it allowed her to be charged as a first-time offender in 2013 when she was arrested for driving while impaired, this time in Charlotte.
She pleaded guilty in Mecklenburg County in July 2014 and had her license suspended for a year, according to Jay Ashendorf, an assistant district attorney in Mecklenburg County.
When she pleaded guilty in South Carolina in September 2014 after her third arrest, she was treated as a first-time offender as well, records show. That indicates South Carolina officials may not have known she had been convicted in Mecklenburg County just two months before.
"It's very likely they didn't know about the North Carolina offense," said Benjamin Hasty, an assistant solicitor in York County.
There's also nothing in court documents to indicate the state knew of the prior conviction, Matthew Shelton, the senior solicitor, told the Observer.
County prosecutors are supposed to check an offender's record for previous offenses, including convictions from out of state. York solicitors say they run an offender's rap sheet through the National Crime Information Center to check for other convictions. They also run a DMV check that will find driving offenses committed in both Carolinas.
Shelton said the solicitor's office knew Conkin had been charged in North Carolina in October 2013. But it's not clear why they apparently didn't learn of her subsequent conviction in July 2014 – and still didn't know about it when she was convicted of drunken driving in York County in September 2014.
The North Carolina conviction and suspension also don't appear on Conkin's 10-year South Carolina driving record. A spokesperson for the South Carolina DMV said it should appear on the record if the state knew of the conviction.
Judge Clayburn Smith Barnette Jr., who presided over the 2014 South Carolina case, said he was not able to find information on the matter and could not recall it. He said he presides over first-time DUI offenses, and wouldn't have handled the case if prosecutors had known of her prior conviction.
Had she been sentenced as a second-time offender, she would have received an additional year suspension on top of the yearlong suspension already imposed on her in Mecklenburg County, Hasty said. He said the two suspensions would be served back-to-back.
Ashendorf, the Mecklenburg County assistant district attorney, said Conkin's initial year-long suspension began in August 2014. As a second-time offender, the suspensions between the two states would have lasted until August 2016.
Additionally, an ignition interlock device that prevents drivers from starting a car when they've been drinking would have been installed in Conkin's car for an additional two years after South Carolina's suspension concluded, and would have remained until 2018.
This means that under the South Carolina laws then in place, she might not have been able to legally drive her car the night of the crash that killed Gonzalez.
The attorney who defended Conkin in the 2014 South Carolina case would not comment.
Conkin's family could not be reached for comment for this story. In an email to the Observer, Powers said Conkin's father isn't comfortable speaking, but said "his heart goes out to the family and everyone hurt."
Irene Dwinnell, North Carolina's executive director of Mothers Against Drunk Driving, said repeat offenders pose a serious threat to drivers. And she said the typical drunken driver has often already driven intoxicated many times before being caught the first time.
By avoiding a conviction the first time and lengthier license suspensions after her second offense, Dwinnell said, Conkin didn't receive a stronger intervention that might have kept her from repeating.
After pleading guilty in April to second-degree murder in Gonzalez' death, Conkin tearfully apologized to the family. "Knowing that I'm the reason so many are suffering, because of me, is sad," she said.
Don Griffin, who's married to Gonzalez's daughter Claudia, said he has seen several cases of repeat offenders who remain on the road. He said legislative action should take place to examine how laws punish repeat offenders in both states.
He added that, while he sees some justice in Conkin's sentencing, the pain is still felt nearly a year after the crash.
"It's still present in our minds," Griffin said. "At least it gives us some measure of satisfaction that she's no longer out there and can't do this again to anybody else, at least for a long time."