I just don’t understand drinking and driving

It really gets to be a toss-up as to what is the most pronounced sign that the justice system is broken, but the plea bargaining racket that the DA's run has to be in anyone's top 5 list. Extended court orders suppressing freedom of movement with no prior conviction (such as orders of "protection" and orders for suspected gang members to stay out of certain areas of town) is one that I have a deep antipathy for and so would be on my list.

The jury wasn't on trial--"trying a jury" would mean putting the jury on trial. You're the one who is confused--very confused.

If a defendant turns down a plea deal and goes to trial, he might either be acquitted or convicted, and generally convicted of more serious charges, since a plea deal usually involves reduced/lesser charges with consequently lesser penalties.

That's the risk people take when they turn down a plea deal and go to trial. The course and outcome of a trial are always uncertain. That's why most defendants are more than happy to take a plea deal that's good rather than risk conviction on more serious charges with harsher penalties, particularly if there are problems raising reasonable doubt with the state's case, or simply because they know they are guilty and are willing to acknowledge responsibility. If an acquittal is a definite possibility, they might well choose a trial. But it's the defendant who chooses to take that gamble, and it's always a gamble.

In Swift's case, like Goodman's, the defense may try to assert that the +.o8 BAC level was due to the consumption of alcohol after the accident, since they both left the scene and had time to consume additional alcohol beyond what they had consumed prior to their accidents. If Swift's lawyer can make a good case for that, to counter whatever bar bills and witnesses who saw Swift drinking in the bar might estimate as his pre-accident alcohol intake, the possibility of acquittal on a DUI charge becomes more real, and a trial might seem a better option to Swift. It all depends on how high his measured BAC level was beyond .08, and the time interval that he had to consume alcohol after the accident before the police showed up at his door, and what the crash investigation suggests about the cause and circumstances of the accident. His attorney might, or might not, be able to raise reasonable doubt about all of the charges, including leaving the scene and failing to aid, and that figures into the decision about whether to go to trial. If the state's case is strong, on all elements of the charges, or on most of them, the plea deal might look much more attractive than the possibility of losing at trial.

There really isn't a "penalty" for going to trial, rather than taking a plea, because the verdict could be an acquittal. But, if the verdict is guilty, the defendant should expect harsher penalties than those offered in the plea deal, partly because the conviction is often on more serious charges than those that were part of the plea deal, and partly because the plea offer was made to spare the state the time and expense of a trial.

Since you and BillRM want to see more trials, and less plea bargaining, then don't carry on about juries verdicts--you wanted juries to decide these cases. Some verdicts you'll agree with, some you won't, but that's the jury system you claim you want to see deciding cases.

And, for all you know, Swift may not want to go to trial, because he might fear being found guilty, and he might be even more upset if he wasn't offered a plea deal as an option.

Hawkeye I love the force "divorces" by way of courts no contact orders that can happen in claimed domestic abuse cases again the clear and express wishes of both the husband and the wife.

Once more in many cases this no contact order will be offer to be drop if the man or the woman will just roll over and plea guilty to the charges!!!

http://www.expertlaw.com/forums/showthread.php?t=114367

No-Contact Order Violation Between Husband and Wife
My question involves criminal law for the state of: Washington state

My husband and I had a rough start to our marriage but we have been committed to it and have attended counseling. Late September 2010, we had a loud argument and the police were called. I was very upset, my chest was blotchy red due to anxiety and crying, because I felt that my husband was being verbally abusive and I did not know what to do other than call the police; I couldn't calm him down.

Before the police drove my husband away, they asked if I wanted an NCO put into place. I had no idea what that meant, I pictured him calling me from the police station telling me how upset he was so I went ahead and agreed to an NCO. I never knew how much this would mess up my life.

Since then I have been trying to remove the NCO. But, my husband plead not guilty and therefore it was sent to trial. Since I am the witness they do not want us to contact each other.

Last Saturday my husband and I broke the NCO by being in the car together. A cop stopped us because my bike rack was obstructing my tags and then arrested my husband. An hour later the cop called me and said he would post a $500 bail and he would not notify the judge. Four hours later I was able to come up with the money, drove to the police station and paid. They told me to hurry along because my husband would be released soon. This was not true. They did not let him go. When the cop called about the bail, my husband asked if he could call me to help me figure out the money situation. After he hung up, they slapped two more violations on his record increasing his bail to $1500. I am very frustrated that they allowed him to call, he was flustered and wasn't thinking straight, just to turn around and add another violation. AND they didn't tell me when I drove to bail him out!

I went to the clerks office the following Monday to petition the court to modify or remove the NCO. I was not allowed to do this. They told me that I am not allowed to petition the court anymore!

Today a Domestic Violence advocate called to offer counseling which I agreed to. I told her a little about my story, that my husband has verbal issues but that he does not hurt me physically and I do not wish to have this NCO in place. She said that I will never be able to drop the NCO and the judge will not drop it. I told her that this means that the court is basically telling us to divorce. She said no. But how can a couple be married if they are not allowed to see eachother?!

I have two daughters. I want my husband back. This is crazy that they are not allowing us to be together. He did not hurt me. What should I do?????

Look, we all know that your ex-wife got an Order of Protection against you based on a claim that you assaulted her, and you did not appear in court to contest the charge. But your past problems with domestic abuse, and any issues related to that topic, and your personal obsession with it, are totally irrelevant in this thread.

That you persist in posting material and comments that lack any logical or meaningful connection to the topic of drunk driving suggests that you have a rather tenuous connection with objective reality.

Drunk driving, particularly when it is associated with a fatality, should remind everyone how needless and preventable these tragedies are. That's really the main point of this thread, which was started by someone who knows the man who set such a tragedy in motion when he put his key in the ignition after a night of drinking at a bar.

Why people continue to drink and drive, despite the risks that such impairment poses, to both themselves and others, is an issue that really hasn't been fully grappled with in this thread--but that's the question which is implicit in the title of this thread.

The time to worry about the harsh penalties for DUI manslaughter, or the financial drain of legal fees, or the probability of conviction, is before one makes the decision to drink and drive. Once one has become mired in serious legal difficulties, and is being held accountable for the death of another, because they chose to violate DUI laws, it's clearly too late for anything except attempts at damage control by a defense attorney. The clock cannot be turned back, a life cannot be restored, and the fateful decision to drive while impaired cannot be undone.Those are the quite sobering facts of this situation.

You have particular problems with the notion of personal responsibility, and you try, in various and convoluted ways, to blame the laws and the legal system for simply holding individuals accountable for their own behaviors. Did the state of Florida force Swift to drink that night? Did the state of Florida force him to get into his car and drive while impaired? Did the state of Florida fail to make the DUI laws, and the consequences of violating such laws, public?

You have no idea what the legal resolution of this case will be because you lack any knowledge of the exact circumstances of this particular accident/collision, the degree of intoxication of this particular driver, the explanation for failing to stop and render aid in this particular case, how long the interval was before a call to 911 was made, and if it was even made, how police procedures were handled, the evidence the state has compiled to justify every component of the charges, and the possible legal strategies of the defense attorney. And, on top of that, you fail to fully understand either the impairing effects of alcohol, or the specific Florida laws involved in this case. But you haven't a clue about your own ignorance regarding all of those things, nor does it occur to you that such ignorance creates enormous blind spots in your ability to rationally think about this case.

You seem to have largely ignored the possibility that this situation does involve an individual who, most likely, did drive drunk, in clear violation of the law, and who is responsible for the consequences of his decision to drink and drive that night, and the state is simply acting appropriately by trying to hold him accountable for his actions and the violations of law involved in those actions. Issues of personal responsibility are simply beyond your grasp. You can't even entertain the possibility that Swift is guilty as charged. You've done nothing in this thread but frantically search for reasons not to hold him accountable for his actions, and to characterize attempts by the state, to enforce traffic laws, as "crazy" and irrational--despite no grounding in reality for anything you have said in that regard.

Your fantasies do not constitute reality, and you have difficulty separating your fantasies from reality. And that you have now interjected domestic violence issues into a discussion of a DUI manslaughter case, shows just how far over the deep end you've gone.

Perhaps you should consider not posting while drunk.

As is most of what he posts.

LOL......................footnote in my case I repeat I had file for divorce and have zero desire to see her or talk to her in the future and the matter I was posting about deal with couples with no contact orders issue again both their clearly express wishes. Second note my order was not a no contact order in any case but a no assault order not the same thing.



As another poster had posted concerning another case in Florida with a cyclist cycling without lights there still need to be some showing that the driver conditions had anything to do with the accident or the death occurring.

It is also the law in Florida that anyone cycling after dark have lights on their bikes and I had not seen any claims that the homeless man was obeying that law.

Thank TBAB for posting the below news story.

Being reposted once more for Firefly benefit.


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."

They need to show that the driver's operation of the motor vehicle caused or contributed to the death of the victim--that is how Florida's DUI manslaughter law reads. And there is absolutely no reason to assume that the state has not done that in Swift's case.

They have crash scene investigations to determine how, and why, the collision took place. That becomes part of the evidence in the case.

All you've done is display your ignorance. The state must have evidence to back up every element of the charges in this case.

You have no knowledge of the actual evidence in this case, and a poor understanding of the actual laws involved. You just mindlessly repeat the same things over and over, in a continuing display of ignorance and obsessional tendencies.

While you might not know how to properly gather evidence in a DUI manslaughter/leaving the scene case, rest assured, the state of Florida knows how to do that, they do it all the time. I doubt that they need you to point things out to them.

You had been defending charging the man with DUI manslaughter due to him driving with an illegal BAC and therefore reduce or impair driving skills when a death had occur so it did not matter if he was the cause of the accident or not in your world view expressed in post after post page after page and now you are back peddling.

How amusing/dishonest can you get....................

Is she ****. You are so stupid, only you seem to think that the cyclist drove into a stationary vehicle. If that's the case, (which it clearly isn't) the charges will be different.

I'm surprised you haven't raised other bullshit scenarios, what if he had a pregnant woman in labour in the back, and couldn't stop? What if he was trying to get the serum through, and stop the zombie plague?

You do go round in circles repeating the same thing over and over again, raising ridiculous scenarios that only you believe. Firefly isn't back peddling, you're spiralling further and further into madness.

That's true, I'm not.

He really doesn't understand Florida DUI manslaughter law, or what the state has to prove to show a violation of that law. He's been substituting his own distorted interpretation of the law, and now he thinks I'm agreeing with him, when I'm not. I've been quite consistent in what I've been saying, he just can't follow it.

His repeated accusations of dishonesty leveled at me are just absurd, and Hawkeye does the same thing. What is there to be "dishonest" about? I'm the one who has posted the actual Florida laws in this thread--I want people to know exactly what those laws say and what they mean in terms of this case, and what the state has to prove, or not prove, in this case. That's the way to have an informed discussion.

Funny how someone who is preoccupied with the need to conceal and hide things, and searches for ways to dodge personal responsibility, is so fast to accuse others of dishonesty--and to do so without reason.

Meanwhile, the state hasn't dropped the DUI manslaughter charge against Swift, meaning they still hold him, and his operation of his motor vehicle, as responsible for causing, or contributing to, the death of Barry Lancaster. Someone should tell BillRM that, by now, they, and the defense attorney, would have discovered if the bike lacked lights, and if the cyclist had somehow caused his own death.

BillRM just doesn't want to believe that drunk drivers kill people, and that they are responsible for those deaths, and should be held legally accountable for those deaths.

You been back peddling like mad!!!!!!!!!!!!

An once more did the homeless man had lights on his bike or not as the lack of such lights being one of the main reasons given for not charging the other DUI driver for the death of the young cyclist in the news story under Florida law.

Unlike your claims in posts after posts on this thread it does indeed matter if the accidental death would had occur or not if the driver had been sober.

If the driver conditions was not the cause of the accident happening then he can be guilt of DUI and yet not guilt of DUI manslaughter.

The charge not being drop or not drop is kind of beside the point.

The point being is there reasons to think that there was other factors involved in the accident happening not relate to the driver being impair or not.

If there exist such conditions, such as no lights on the bike, then there is a valid defense to the manslaughter charges whether the driver had a BAC over .08 or not.

By the way Firefly that all I been saying on this thread since my first post IE that if the causes of an accident occurring can be trace back to other factors then the driver BAC there is a defense against a manslaughter charge no matter what the driver BAC happen to be.

Something that you had not been willing to admitted to until you begin doing your back peddling.

But then you had never been at all honest on this website so why would anyone assume that you would begin now?

You speak the vernacular of a banjo player.

No, that is the whole point. If the charges stand it's because the prosecution, the defense attorney, and the judge, have found no compelling reasons to drop them.

But, of course, you know better than the principal players who are actually involved in adjudicating this case. Perhaps the state of Florida should hire you as a legal consultant.

You just can't accept the fact that drunk drivers kill people.

LOL you do know how our so call justice system work or are you just being your dishonest self? I am frankly voting for you being your proven beyond a reasonable doubt dishonest self.

Compelling reasons?

The only compelling reason for a judge to dismissed a case is that it does not even meet the low low low standard of probable cause and that is a mile or two below beyond a reasonable doubt standard!!!!!!!!

As far as a prosecutor dismissing a case we all can point to example after example even with cases that clearly fall far short of beyond a reasonable doubt that a prosecutor had been willing to go to trial and or wait to the last second in hoping to get a plea deal.

Sorry the fact that the charges had not been dismissed is meaningless in relationship to how strong a case might be or not be.

Once more I would love to know if the homeless gentleman was both doing a very stupid thing and breaking Florida law in cycling without lights as not everyone had your cat eyes that just need a street light or two at up to two to three football field distant to pick up a cyclist without lights on at night!!!!!

http://humantransport.org/bicycledriving/library/lights/lights.htm




Figure 2: An approaching cyclist in the roadway under a street lamp, with no front light



Figure 3: A cyclist approaching in the same position as Figure 2, this time with a headlamp on the bicycle plus a helmet lamp.

Have you ever been treated for your OCD, or is it a component of your overall cognitive decline?

Your pictures mean very little by themselves, where are the driver's headlights?Are you suggesting that Swift didn't have his lights turned on?

Looks like Thom's attorney is doing his best to postpone the trail, wonder how long he can keep it up?