I just don’t understand drinking and driving

While I've viewed many of the posts here on this topic, I thought this case in Florida during the same month was also similar. I apologize if this was already posted. Tragic that the bicyclist struck was a 15 year old.

http://www.news-journalonline.com/news/local/flagler/2011/12/16/driver-in-fatal-flagler-accident-wont-face-dui-manslaughter-charge.html

December 16, 2011 12:55 AM
Posted in: Flagler Tagged:Gary E. Wright ,Kirt Smith PALM COAST -- The driver of a pickup who struck and killed a 15-year-old on a bicycle in Seminole Woods in August had a blood-alcohol level nearly twice the legal limit but won't be charged with DUI manslaughter, according to the Florida Highway Patrol.

Gary E. Wright Jr., 32, of Palm Coast has been charged with misdemeanor DUI because authorities didn't think he was at fault for the fatal accident.

Wright was driving the pickup which struck Kirt Smith from behind as Smith peddled south about 8:40 p.m. on Aug. 26 in the inside southbound lane on Seminole Woods Boulevard south of State Road 100 in Palm Coast. Kirt died from his injuries three days later at Halifax Health Medical Center in Daytona Beach.

Wright admitted to drinking two Long Island Iced Teas and had a blood alcohol level of 0.15, according to the FHP report. A driver is considered impaired under Florida law with a blood alcohol level of 0.08.

However, Kirt was riding his bicycle in the dark without a headlight, taillight or rear facing red reflector, according to an FHP accident report. A headlight, taillight and the rear red reflector on the bicycle are all required by law, said FHP Lt. Bill Leeper in a phone interview. Smith also was required to wear a helmet because he was under 16, Leeper said.

"Our investigation has been completed and after collecting all of the evidence, interviewing witnesses and consulting with the State Attorney's Office, we have charged Mr. Wright with Driving Under the Influence (DUI)," Leeper wrote in an e-mail.

Assistant State Attorney Ben Fox said Thursday that a DUI manslaughter charge combines driving under the influence with causing or contributing to the cause of a fatal crash.

"If it's the other person's fault but the (DUI) defendant didn't cause the crash, then it's just DUI," Fox said.

FHP Cpl. Peter Young, who investigated the accident, conferred with Fox.

"He did consult us and we did agree that there was insufficient evidence of causation to file DUI manslaughter, and the trooper determined and the State Attorneys Office agreed that he would file just the DUI citation," Fox said.

It's difficult to determine whether alcohol prevented a driver from taking evasive action to avoid a crash, Fox said.

"You have to be able to show that had the person not been impaired he could have avoided the crash and I don't believe that could be proven in this case," Fox said.

If convicted of misdemeanor driving under the influence, Wright faces up to six months in jail, although there is no mandatory jail time. Wright also faces suspension of his drivers license for between six to 12 months, and between six months and one year probation. He may have to perform 50 hours of community service and have his vehicle impounded for 10 days, and pay a $500 fine.

The decision to charge Wright with what is known as a "simple DUI" means he does not need to worry about the much stiffer penalties of DUI manslaughter -- a second-degree felony carrying a minimum of four years in prison and a maximum of up to 15 years upon conviction. The DUI manslaughter charge also carries a fine of up to $10,000 and a lifetime drivers license revocation.

Kirt Smith's father, Brent Smith of Palm Coast, said Thursday he is struggling with the pain of losing his only son. Smith said his long hours at work as plant manager of Contemporary Machinery & Engineering Services helps take his mind off the anguish.

"I actually don't know how I feel on the findings in the blood alcohol level," said Brent Smith. "Any one individual can go to a bar and have a drink and if they leave immediately they are over the limit."

Smith added he is also having trouble with the FHP blaming his son.

He said Kirt and his friend were riding correctly along the right side of the right lane of Seminole Woods Boulevard and had moved to the left lane to make a left turn as they were supposed to do.

"He and Drew were riding down the right hand side of Seminole Woods right on the edge of the road, just like you are supposed to do," he said

Smith said the bicycle's pedals did have reflectors. He said the FHP told him that Kirt Smith was wearing soft shoes which probably bent and covered the pedal reflectors. Brent Smith said he doesn't know why the bright red bicycle which was only a week old wouldn't have had its rear red reflector.

"The last time I saw the bike it had a rear reflector," Smith said. "I don't know if he had taken it off to put the lights on it."

Brent Smith said he brought his son home from the hospital when he was 2 days old and had given him lots of things in life.

Kirt Smith had traveled a lot, had owned a motorcycle when he was just 6. He liked to ice skate and was a tough athletic kid.

Brent Smith said his son had asked him earlier that Friday the night of the accident if he could stay at his friend Drew's house. But Brent Smith had told his son to come home to help him work the next day on a '55 Chevy, which had become a father and son project. He said Kirt Smith enjoyed working on the car.

Kirt Smith told his father he would head home after dropping his friend off. But somewhere along the way the two boys got a call from a couple of girls in the Seminole Woods section. They headed toward the house of one of the girls. Kirt Smith had a bottle of cologne in his pocket.

"He knew he was supposed to be home at 9 o'clcok," Brent Smith said. "He's 15-years-old and a couple of girls called. What would you do at 15?"


Smith said he bought a headlight and a taillight for his son's bicycle, which his son purchased about about a week before the accident with money he'd made at a summer job.

"The day he bought the bike I bought him taillights and headlights to go on it," Brent Smith said.

"They are still sitting in his room, in the box."

Thanks and I mean thanks for that news story as it seems to ends the argument that in order to be charge with DUI manslaughter it does indeed matter. beside the BAC of the driver, the degree if any the driver was at fault for the accident happening.

thank you bill for a reasonably composed post with a sane thesis.

I'm encouraged that as a society we may well yet survive...

WELCOME to the forum, TpaB!

May u use it in great JOY !





David

I don’t know anything about Thom having a previous DUI but I know who beachboy is, and he has seen Thom around, after-all Thom’s still working for the same company.

Looks like Tom has a good lawyer. You know damn well Tom had a previous DUI. He's not as innocent as some have made him out to be.

Beachboy, once again I'm not here to post my opinion or pass judgement. All that is available at this point is a press release and limited public records. I'll reserve my judgement on Mr. Swift when facts become available. This is apparently something you're for whatever reason unable to do.

For you to say there is a previous DUI without fact is feckless. I'm not advocating guilt or innocence.

The post I started to read was "I just don't understand drinking and driving" and the numerous posts related to topic, of all varying degrees, I can respect and find of interest. When you post irrelevent personal comments related to Mr. Swift who is the alleged suspect is where I find umbrage.

I would hope that additional dialogue on the topic continues and most importantly readers and participants are able to learn from these tragedies.

In John Goodman's DUI manslaughter/leaving the scene Vehicular Homocide trial, defense attorney Roy Black is going to counter every one of the charges against Goodman. He's going to contend...
1. Goodman wasn't DUI at the time of the accident, he got drunk after the accident to relieve the pain of his injuries. The state contends Goodman had 15 or 16 drinks prior to the accident at two watering holes.
2. Goodman had a concussion and was briefly unconscious after the accident. He went to look for a phone (and allegedly got drunk on the way by stopping in an empty barn with a fully stocked bar but no phone). When he found someone who let him use her phone, he called his girfriend first rather than 911 because he didn't know the car he hit was submerged in a canal with a victim inside. The state contends he had no concussion, that he left the scene and thought only about himself and not aiding the victim.
3. Goodman's Bentley malfunctioned and suddenly accelerated--he was not speeding or failing to stop at a stop sign--the malfunctioning car was responsible for the accident, not Goodman. The car had no black box. The state contends Vehicular Homicide because Goodman was speeding and went through a stop sign, and there was no malfunction of the car.

It remains to be seen whether the defense can sell all of that to the jury,

If anyone is interested, they can watch live trial coverage here.
http://www.wptv.com/generic/news/Goodman-Page-the-trial

Even if the jury believed Goodman none of that would matter re the law. What we have here is a shyster lawyer putting on a song and dance to get his payday.

Really???? Y not ?



He 's doing his job! Geeeeeeeeeeeeeeezzzzzzzz!!!!! He 's not supposed to do it adroitly ??????
According Hawkeye, he 's supposed to be less than loyal to his client ?





David

http://www.cnn.com/2012/03/17/opinion/butler-rutgers-spying/index.html?hpt=hp_bn6

Hopefully Thom is paying attention.....He can expect no justice from the American "justice" system.....Prosecutors long ago forgot what their job is and who they work for and became abusive tyrants.

Hawkeye my question is if our so call justice system drive Ravi or Swift to suicide do we get to look around for laws to bend enough to charge the two sets of prosecutors with crimes?

What a joke that we now had a system that does everything possible to make sure that only a tiny fraction of those charges with crimes get trials.

I am equally appalled by the charge shopping, which was particularly egregious in the Ravi travesty of justice. Modern prosecutors first decide who they want to nail, and then set out to figure out a way to make it happen. This is not justice, and is not something that a civilized people grounded in law and respect for the citizen tolerates.

EDIT: I suggest that you take keen awareness to the observation that the Ravi result happened after prosecutors traded in emotional appeals as much or more than they did with facts and evidence. Our justice system has been corrupted to its core. This is the same emotional manipulation that we see Firefly employ constantly here, not understanding why it does not work on some of us.

Your thinking is really quite warped. First you bitch that defendants are forced into plea deals, when you feel they should have trials, and then, when they choose to go to trial, and get convicted, you bitch there is "no justice".

Do you even understand the meaning of the word "justice"?

Dharun Ravi was convicted by a jury, not by the state. He was afforded due process of law. It was 12 jurors who felt he was guilty of those charges.

In your distorted view, apparently, simply charging someone with a crime is an abuse of power by the state, and nothing short of an acquittal constitutes "justice" for you.

And your earlier post, about "shyster lawyers" doing a "song and dance" to earn their "payday" simply reflects the fact that you do not understand or appreciate our adversarial legal system. It is the defense attorney who is the main legal safeguard against abuse of power by the prosecution. And what you call "a song and dance"--is the defense placing the burden of proof fully on the state, forcing them to prove their case. In the case of Dharun Ravi, the state did satisfy that burden of proof in the minds of the jurors, so justice was served. That Dharun Ravi now likely faces more jail time than he would have with the plea deal the state offered to him, is the risk he took by going to trial, but it was his choice to go to trial, so justice was served in that regard as well.

I'm sure he is already aware of the risks in going to trial since the course and outcome of a trial is always uncertain.

In the Goodman case, for instance, the defense was making good inroads, in cross-examining the state's witnesses about Goodman's alcohol consumption at the bars, to raise reasonable doubt about whether he was DUI at the time of the accident. Then it emerged that Goodman also had hydrocodone in his system at the time, as prescribed by his doctor for back pain, and a bottle of hydrocodone was found in the backpack left in his car. Since hydrocodone can combine with alcohol to increase the degree of driver impairment, that would make it more likely that he was DUI, from the combined effects of the drug and alcohol at the time of the accident, than Goodman would have been from just the alcohol alone. So now the defense is trying, I think unsuccessfully, to claim that he was given the pain med before his blood was drawn in the ER. So, you never know what can happen at trial, even with a carefully prepared defense strategy. And now the defense is certainly going to have to address the prescription drug issue as well as Goodman's alcohol consumption--because you can be DUI from hydrocodone use, particularly when that combines with alcohol, because both are central nervous system depressants.

Swift has a good defense attorney, who I'm sure is representing his interests, and probably keeping an eye on the Goodman trial as well. That is the kind of trial that other lawyers pay attention to.

The arguments that prosecutors work diligently to systematically deprive citizens of trials so that they never need to prove their case and that the wrong result was arrived at by the jury in the Ravi case are not mutually exclusive.

Your thinking is really pathetic. Meeting the burden of proof is necessary to convince both the defendant, and the defense attorney, that the plea deal is the better option--because the state may have a case which is difficult to undermine at trial. You don't seem to understand either the role, or influence, of the defense attorney, or the judge for that matter.

That's according to you--and I doubt whether you even watched this entire trial, although it was broadcast on cable, so you don't really have the foggiest idea of whether the jury did or didn't get it right, since you didn't see and hear everything that they did.
There are always people who will disagree with any jury verdict. But, in our legal system, the jurors are the finders of fact. And, in this case, they found the defendant guilty of all the main charges.

If you want to see "justice", in terms of jury trials, you have to be willing to accept the verdicts of juries, including those you disagree with. You can't have it both ways. If you want trials, you get jury verdicts, and, when those verdicts find guilt, they generally carry harsher penalties than those offered in plea deals.

None of this has anything to do with Swift's case. Yesterday, juries all over the country both acquitted and convicted defendants of all sorts of crimes. That doesn't mean those cases should be discussed in this thread, unless they are somehow relevant. Swift is not charged with invasion of privacy or a bias crime. He's charged with DUI manslaughter/leaving the scene.

Bullshit, when juries cant be trusted to arrive at justice and then the penalty for trying a jury are extreme because pissed off prosecutors will routinely seek vengeance for being made to present the case to a jury the actual provable guilt is a small consideration in the evaluation on whether to seek a trail or not.

Hawkeye you know what I find so very amusing is that Firefly seems not to understand that having an insane justice system could in the end turn and bit her in the rear end just as fast as it could anyone else in society.

Maximilien Robespierre, the head of the reign of terror, during the French Revolution in the end met his end as so many of his thousands of victims did under the gullotine blade.

It is in no one interest to allow this system to go on existing as no one freedoms is secure under it.

You view trial by jury as insane, that figures.

Hmm you can not read as I consider that a so call justice system insane on it face that pressure people not to go to trial as to do so is to risk decades in prison due to overcharging compare to no prison time if you roll over to the state and admitted guilt whether you are guilty or not.

In the case of Ravi he was in this country since he was two years olds and consider himself as American as anyone born here and if he had roll over to get a plead deal he was facing the possibility of being deported to a country he had no tieds to.

So he roll the dice and was found guilty of all the charges that the prosecutors added on to force the plead deal so instead of no jail time he is now facing up to ten years and then being deported.

I would not be surprise if the young man is not driven by the state to jump off the same bridge as his gay former roommate did.

Too bad I was not on that jury or at least someone with some backbone and commonsense but that is the roll of the dice.