Judge rejects plea agreement in DUI maiming case

WOODSTOCK — Circuit Judge Dennis L. Hupp rejected a plea agreement on Monday in a DUI maiming case involving a Strasburg man accused of hitting a bicyclist with his SUV in November 2016.

Ernest Linwood Tharpe III, 35, planned to plead guilty on Monday to a reckless driving charge that was reduced from DUI maiming. The charges against Tharpe stem from a Nov. 9, 2016 incident on U.S. 11. where Tharpe allegedly struck Ray Swinson, 25, who was on his way home from work. Swinson suffered a traumatic brain injury from the incident that required surgery and an extensive hospital stay.

Assistant Commonwealth’s Attorney Kristen Zalenski cited problems with evidence linked to Tharpe’s blood alcohol level as a reason for the plea agreement. His blood alcohol level, which was not measured until over an hour after the incident, was measured at .06; the law considers someone to be intoxicated at a blood alcohol level of .08. Zalenski did say, however, that Tharpe performed somewhat poorly on the field sobriety tests, but was still able to complete them.

Tharpe’s attorney, Franklin Reynolds, said that his client was largely motivated to enter the plea agreement because he did not want to risk facing the charges at trial, even though there was a good chance that they could beat the case.

“This was a case that could go either way,” Reynolds said.

Zalenski noted that the family wanted Tharpe to be punished more severely in the plea agreement, but that they understood that the issue with the blood alcohol level could lead to Tharpe’s acquittal in a jury trial. Swinson’s stepfather testified at Monday’s hearing that Swinson was “full of life” before he was injured, but that was taken away from them because of Tharpe’s choice to drink and drive.

Circuit Judge Dennis L. Hupp was reluctant to accept the plea agreement, given the circumstances of the case. Hupp then asked for a pre-sentence investigation to be conducted before he could accept the agreement, saying he wanted to know more about Tharpe.

Hupp, who like many judges will typically accept plea agreements that come before him, then decided that he was not going to accept the plea agreement because he felt there was sufficient evidence to convict, and that the case should be brought before a jury. As a result of Hupp rejecting the plea agreement, another judge will preside in a jury trial.

A hearing was set on Nov. 29 in Shenandoah County Circuit Court for Chief Circuit Judge Clifford L. Athey to set a jury trial date. Tharpe remains in custody at the Rappahannock-Shenandoah-Warren Regional Jail at this time.