A U.S. citizen driving while intoxicated hit and seriously injured Tauranga dentist has failed in its bid to avoid conviction, with a judge saying that would not be an option for a New Zealander.

A lawyer for Eric Albinio, 35, told the Tauranga In the District Court on Thursday, the Mount Maunganui hotel worker feared deportation if found guilty.

Albinio pleaded guilty in May to driving with excess alcohol in the breath causing injury, a charge that carries a maximum sentence of five years in prison.

Court documents show Albinio was more than four times over the legal alcohol limit for adults when the the vehicle he was driving hit the pedestrian Eric Benic on Oceanview Rd on April 4.

Benic was standing on the road next to a car parked outside his home when Albinio hit him and the car.

Albinio, who returned to the scene after noticing his bent rearview mirror, told police he did not notice Benic and only had two beers after work.

Benic suffered a brain hemorrhage and fractures to his shoulder, knee and face. He previously spoke at the Bay of Plenty about the “tremendous toll” the incident had taken on him and his family, emotionally and financially.

On Thursday, defense attorney Rynae Butler requested an acquittal without conviction for Albinio.

She said he has now admitted he drank three beers and a glass of rum before deciding to drive home.

“Mr. Albinio acknowledges that he made the reckless decision to drive…The primary reason for seeking release is the impact of a conviction on his immigration status.”

Butler said Albinio was a US citizen from Nevada who had lived in New Zealand for seven years and was seeking permanent residency.

She said if he was found guilty there was a “real risk of deportation”, as confirmed by an affidavit from an immigration adviser.

Butler said Albinio was settled here and Nevada would be like “a desert to him” in many ways. The media coverage of the affair had impacted his reputation, his “fragility and his mental health”.

She said his credentials showed he had a community spirit and was motivated to try to turn things around. He was remorseful, willing to engage in restorative justice and had offered $12,000 in reparation for emotional harm gained during a visit to the United States before sentencing.

Tauranga dentist Dale Benic, co-owner of Bay of Plenty-based Tooth Fairy Dental, suffered multiple fractures and a brain hemorrhage after being hit by a drink-driver.

He had no previous convictions, accepted full responsibility for his actions, had taken rehabilitative measures to abstain from alcohol and was at low risk of re-offending.

He was willing to pay $6,000 in damages requested by an insurance company for damage to the parked car.

“In my opinion, Mr. Albinio did everything humanly possible to address the harm caused to his victim and the societal harm resulting from his offense,” Butler said.

She said her future employment prospects – including her current contract – and her ability to travel abroad could be at risk if convicted.

Police prosecutor Kerry Sykes said police opposed the application for release because the sentence was not disproportionate to the seriousness of the offence.

She said the risk of deportation was “very, very low” given Albinio’s lack of prior offenses and records of similar cases, and a letter from his employer showed his employment was not either. more threatened.

“While police accept that traveling to other countries may be a slower process for Mr Albinio, there are no legal impediments to restricting his travel given his lack of prior record.”

Judge Louis Bidois told Albinio the normal starting point for this charge was a short prison sentence.

“Everyone who drives a motor vehicle in New Zealand knows that drink driving is wrong and the danger you placed the victim in was unacceptable. “

Judge Louis Bidois.

The judge said in Albinio’s pre-sentence report that he presented himself as “an intelligent, confident and calm individual” who admitted he was responsible for the accident and felt genuine remorse for the harm suffered by Benic and his family.

He said Albinio could not give a plausible explanation for the “very high alcohol level” but admitted to being “very ashamed of himself… for his stupid and very selfish decision”.

He praised Albinio for returning to New Zealand for his sentencing hearing.

“It says a lot about you and that you recognize what you’ve done, but it also means that you want to make New Zealand your home, and you could easily have stayed in America and avoided responsibility of this offence.”

Judge Bidois said there was no clear evidence of a risk of deportation if convicted.

“And in terms of proportionality, a New Zealander would not be entitled to 106 discharge for this offence…”

He found Albinio guilty and sentenced him to 200 hours of community service, with an order to pay the victim $12,000 in restitution for emotional harm.

Albinio was also disqualified from driving for 28 days, after which a 12-month ignition interlock license would begin. He could then apply for a zero alcohol license which, if granted, would last for three years.

Sandra Conchie is a senior reporter at the Bay of Plenty Times and Rotorua Daily Post and has been a journalist for 24 years. It mainly covers police, legal and judicial news, as well as general news. She was named Regional/Community Journalist of the Year at the Canon Media Awards.