I just don’t understand drinking and driving

@BillRM,

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Did alcohol in the man blood have anything at all to do with the cyclist death or not?

If the cause of Barry Lancaster's death was due to the trauma of the impact with Swift's car, and Swift was driving while legally impaired, it is almost impossible to say that the alcohol did not affect Swift and his ability to avoid that collision with Lancaster. Swift was already driving in an impaired condition before he hit Lancaster, how could his attorney demonstrate that the alcohol in Swift's system was not a factor in contributing to Lancaster's death?

Alcohol affects night vision and visual acuity and depth perception, so it would affect Swift's ability to see a biker, judge distance from a biker, etc. Alcohol affects reaction time--how fast you notice an object in the path of your car and react to it by hitting the brakes, trying to swerve, etc. and these things would be slowed down in an impaired driver.

And we don't know the BAC level of alcohol that was in Swift, beyond surmising that it was at least .08 to justify the DUI--it might have been .18, or .24, or .31. And the higher it might have been, beyond .08, the more impaired Swift would have been, and the more difficulty he would have had with any accident avoidance situation.

So, to answer your question, "Did alcohol in the man blood have anything at all to do with the cyclist death or not" my answer would be , "Yes", unless some extraordinary other factor took place immediately prior to the collision that would account for Lancaster's death--i.e. he suffered a fatal stroke, heart attack or seizure, he was hit by lightning, etc. And, if the cause of death was due to the trauma of impact with the car, my answer would certainly be, "Yes".

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@firefly,

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Neither Hawkeye nor BillRM has addressed the issue of drunk driving.

I did someplace or another, I said that drunk driving is criminalized and should be criminalized. However, like rape the devil is in the details, in the definitions. What is drunk, is it having any BAC above zero? , is it .03? .08? .10? The government currently says .08 which is on the low end of reasonable so far as I am concerned. We also need to question the state's stance that .079 is a world of difference from .08, it makes the difference in this kind of case between being assumed to be guilty of causing a death and no assumption of guilt. There should be graduated penalties as the BAC goes up, and we should never assume guilt.

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A man got into a car drunk and killed someone

Zero evidence has been presented that Thom killed anyone, all we know is that the law assumes that he did and does not care to find out if he did.

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There is no legitimate way, from a moral point of view, of diminishing the driver's responsibility for his actions.

Likewise, there is no diminishing the immorality of the state which does not care what happened, which only cares that Thom was drunk and that Barry is dead.

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Thom Swift was driving drunk and Barry Lancaster died because he was hit by Swift's car.

For all we know Barry swerved onto Thom as Thom was actively trying to avoid him. We dont know. We should find out.

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But there is no getting around the fact that he spent the night in a bar drinking, got into a car and drove impaired by alcohol, with diminished reaction time, depth perception, coordination, visual acuity, and night vision, as a result of the effects of alcohol on his central nervous system, and he ran into a man on a bicycle and killed him, and he did not stop and remain at the scene. He should have been arrested.

FOr drunk driving yes, for manslaughter no unless the state can prove that Thom caused Barry's death.

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He didn't hit a tree or a parked car, he hit another person, and killed him, and, for that reason, the legal consequences for Swift should be considerably more than a slap on the wrist.

Facts not in evidence in two counts, you dont know that Thom hit Barry and you dont know that Thom caused the death of Barry.

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I will accept that as a sincere acknowledgment of responsibility on his part. Should a jury exonerate him, I can live with that as well. I have no vested interest in the outcome of this case and I have no problem with how that outcome is arrived at.

You continue to defend a very poorly functioning justice system, that is on you.

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@hawkeye10,

Oh just STFU

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@chai2,

I prefer to encourage people to try to show me where I am wrong.

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@BillRM,

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Sorry there is a separate under the law DUI manslaughter charge but no cell phone calling when driving manslaughter charge no driving when tired manslaughter or fooling around when driving manslaughter charges on the books.

What makes you think you wouldn't be liable for a charge of vehicular homicide/manslaughter if your negligent driving was so reckless that it killed someone?

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Under Florida Statute § 782.071, vehicular manslaughter is an accusation that a driver killed another human being by operating a motor vehicle in a reckless manner likely to cause death or great bodily harm to another. To prosecute a vehicular manslaughter charge, the state does not need to prove that the driver had the intent to harm anyone, but instead, that the operation of the vehicle was in a manner likely to cause the death or great bodily injury of another.

Drivers of cars are expected to operate their vehicles in a responsible manner which includes their full attention to the road and to control of their car, and to not engage in behaviors which either interfere with the ability to do such things or which might endanger others.

Drunk driving is not only reckless, it's illegal. You have no legal right to be driving a car while drunk.

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This automatic charge of manslaughter when an accident result in a death and the driver in over a very very arbitrary blood limit that was force on the states by the federate government beside is not logical.

That "very, very arbitrary blood limit" is a level at which impairment can be demonstrated. Impairment can be shown at much lower levels as well. But, it is currently an agreed upon level for determination of DUI, and, as such, drivers are governed by that. So, when a driver violates already existing DUI manslaughter laws, he merits a DUI manslaughter charge, and there is nothing illogical about that.
Some states have enhanced penalties when the BAC is above a certain level.

Are you arguing that we shouldn't have DUI laws? Or DUI manslaughter laws? I don't think you're being logical. The problem isn't the law--it's the drunk drivers who violate the law. They are operating motor vehicles while in an impaired condition.

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@hawkeye10,

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I prefer to encourage people to try to show me where I am wrong.

You fail to understand the effects of alcohol on the human body, and consequently the effects of alcohol on a driver's abilities, including abilities necessary to recognize, and react to, and avoid, a potentially hazardous situation.

I don't know what you think you are debating. You aren't debating anything, you are dismissing issues with bullshit phony legalize, like "facts not in evidence" rather than engaging in anything approximating a discussion, let alone a debate, and you are essentially doing nothing more than talking to yourself. And you, deluded fool that you are, think you're winning some imaginary debate because you believe your own bullshit.

Show you where you're wrong? Why should anyone waste their time? You'll never agree you're wrong. The really difficult part is seeing anywhere where you might be right. If I happen to glimpse a brief instance of that, I'll be sure to let you know. But, between the hot air and the bullshit coming from you, it's hard to see much else.

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Zero evidence has been presented that Thom killed anyone

The dead body of Barry Lancaster, who was buried yesterday, strikes some people--apparently including Thom Swift--as rather convincing evidence.

Enjoy your imaginary "debate".

1 Reply

@firefly,

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You fail to understand the effects of alcohol on the human body, and consequently the effects of alcohol on a driver's abilities, including abilities necessary to recognize, and react to, and avoid, a potentially hazardous situation.

the assumption is made that the diminished capacity mattered, but we dont know that it did. Because Thom was drunk he lost the right to argue that the contact between Barry and his car could not reasonably be avoided by Thom. The state does not care about what happened, or about what roll Thom being drunk played in the contact.

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The dead body of Barry Lancaster, who was buried yesterday, strikes some people--apparently including Thom Swift--as rather convincing evidence.

So by that logic when a train runs over a person who is on the tracks (usually suicide by train) then we can assume that the train engineer is guilty of a killing. Barry being dead is evidence only of contact between Barry and Thom's car, not evidence of of any fault of Thom's.

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@hawkeye10,

Hawkeye my problem from the beginning with hanging the man is it very likely that the cyclist was at fault in this accident not the driver whatever his blood level may or may not had been.

Most and I mean most bikes are not lit up at night and I know that because I been one of those cyclists for thousands of miles at night over the years and seen one bike after another running on the pubic streets without any lights and almost impossible to see at any distant at all.

If he was not lit up then the assumption should be in a sane world that the cyclist is responsible for his own death as operating a dark bike at night is both a very dumb thing to do and an accident waiting to happen no matter what the conditions of the drivers on the roadway with him happen to be.

Over the years fully sober and fully aware that night cycling is happening on the same route I had both cycle on and drove on I had come far too close to having accidents with these fools any numbers of times.

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@BillRM,

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Most and I mean most bikes are not lit up at night and I know that because I been one of those cyclists for thousands of miles at night over the years and seen one bike after another running on the pubic streets without any lights and almost impossible to see at any distant at all.

I have been paying attention to this of late. What I see are a lot of rear lights which are attached to the back of the bike seat, which in Winter in Seattle are not able to be seen a large fraction of the time because the bike rider has on a coat which completely covers the light. Back when I was a boy in Illinois and did a lot of bike riding the rear light had to be on the back fender, or attached to the frame near where the rear axle is which avoids this problem. I was originally wondering if the state contributed to this death by not getting a known bike riding menace off of the streets, but now I also wonder if the state contributed by having poor bike safety regulations. The low was in the high 60's that night, which is not bad, but is cold enough to assume that Barry was indeed wearing a coat.

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@hawkeye10,

I still would bet that there was zero lights on the gentleman bike.

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@hawkeye10,

Barry's funeral tribute video has been posted

http://www.clancygernon.com/obituaries/Barry-Lancaster/#/PhotosVideos/00000000-0000-0000-0000-000000000001/TributeVideo

It does not clear much up...it strongly suggests that his homeless situation was voluntary which comes as no surprise. The wife is either not in it or not much which considering the OBIT was predictable. The shocker is that the twins are not much a part of the video either, though both have lit a candle on his tribute wall (along with Butterflynet)

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@hawkeye10,

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Because Thom was drunk he lost the right to argue that the contact between Barry and his car could not reasonably be avoided by Thom.

He didn't lose the right to argue that point, what he lost was the ability to make a convincing argument because there is no way of taking the alcohol in his system out of the equation.

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The state does not care about what happened

They care about the fact that Barry Lancaster is dead as the result of being hit by Swift's car, while Swift was operating that car in an impaired condition.
Not only does the D.A.'s office care about that, the Dept. of Motor Vehicles cares as well. No doubt, Swift's auto insurance carrier also cares.

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Barry being dead is evidence only of contact between Barry and Thom's car, not evidence of of any fault of Thom's

But, are we to assume that Lancaster just dropped from the sky and suddenly landed in front of Swift's car?
Both cars were traveling in the same direction. For Lancaster to have been thrown up onto the windshield of Swift's car he most likely would have to have been in front of the car--where he also would have been most visible, whether or not the bike even had a rear reflector. Maybe Swift wasn't looking at the road, maybe he had trouble keeping his eyes open...

The other night I was out driving on a normally illuminated side street. In my rear view mirror, I could clearly see a person on a bike without lights about 60 feet behind my car in the center of the road. When he moved toward the curb, he was less distinct in the passenger side mirror until he got closer to the car, but because I had already seen him in the rear view mirror, I knew he was there and I made sure I was paying attention to what he was doing. Probably because of this thread, I slowed down and let him pass my car on the passenger side. Once he was in front of my car, there was no way I wouldn't have seen him, even a block or two ahead of me I could still see the moving object, even without any lights on the bike.

But I wasn't drunk. I was fully alert. And my driving had my full attention. Would a drunk driver have had more difficulty keeping track of a biker behind him, or coming from behind to pass him on the side? Probably, particularly at 2:15 am when that driver was probably tired on top of being drunk. And a drunk driver might have trouble seeing who was in front of him, or judging distance properly, or just paying attention to the road, particularly in his own neighborhood where the familiarity of the situation might not call for a high degree of alertness on his part. And we don't know the speed at which Swift might have been traveling.

I thought that man I saw was crazy to be riding a bike without any lights, but I saw him, both when he was behind my car and when he was well in front of it.
And so did everyone else on the road.

And, for all we know, Barry Lancaster might have had lights on his bike. Other drivers didn't hit him.

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the assumption is made that the diminished capacity mattered, but we dont know that it did

Diminished capacity always matters which is why no one should drive drunk.

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The Florida Legislature recently added a four (4) year “minimum/mandatory” prison sentence on all DUI Manslaughter convictions under Florida Statute 316.193. In my personal opinion, this was done because too many judges were granting “Downward Departures” on these emotional cases. DUI Manslaughter is a Second Degree Felony in the State of Florida and is punishable by up to fifteen (15) years in the Florida state prison system. In addition, there is also a mandatory lifetime driver’s license revocation upon conviction.

Because the Florida Criminal Punishment Code requires the imposition of 120 “victim injury points” when a death occurs in one of these cases, the average DUI Manslaughter client will be looking at a minimum guideline sentence of approximately ten (10) to twelve (12) years in prison (even before the client’s prior record is scored and/or any other companion criminal charges are put onto the scoresheet). Furthermore, in many cases, the family of the deceased victim(s) will be pushing the State Attorney’s Office and/or the Judge to punish the offender “to the maximum extent of the law.

http://www.slavinlawfirm.com/lawyer-attorney-1492077.html

This is right in the wheel-house of my prediction that Thom will get 13 years.

1 Reply

@firefly,

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Under Florida Statute § 782.071, vehicular manslaughter is an accusation that a driver killed another human being by operating a motor vehicle in a reckless manner likely to cause death or great bodily harm to another. To prosecute a vehicular manslaughter charge, the state does not need to prove that the driver had the intent to harm anyone, but instead, that the operation of the vehicle was in a manner likely to cause the death or great bodily injury of another.

http://www.criminaldefenseattorneytampa.com/PracticeAreas/DrivingUndertheInfluenceDUI/DUIManslaughter.aspx

IE once the jury has been convinced that driving drunk is likely to result in death the state needs only to prove that a death happened.....the diminished capacity in this case is not tied to the death, so Thom has no opportunity to argue that his diminished capacity had nothing to do with Barry's death. Firefly almost certainly being trained as a lawyer knows this, but she habitually attempts to blow smoke up our asses.

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@hawkeye10,

But that statement you posted is from the Web site of an attorney who is obviously inferring that he can get clients lower sentences than that. As does every other lawyer with a Web site and who handles DUI cases.
And people in Florida do, in fact, get far lower sentences than the ones you are predicting for Swift. That's what a defense lawyer does for a client. That's why plea deals often work in a defendant's best interests.

The first thing the defense lawyer does is to try to get the DUI charge thrown out, and sometimes they can accomplish that.

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@firefly,

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But that statement you posted is from the Web site of an attorney who is obviously inferring that he can get clients lower sentences than that. As does every other lawyer with a Web site and who handles DUI cases.

And they all talk a lot about getting a lawyer fast before you say anything to the cops.....given what Thom said before he got a lawyer much of what a lawyer was able to do for him went out the window with in minutes of the incident.

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The first thing the defense lawyer does is to try to get the DUI charge thrown out, and sometimes they can accomplish that.

given that in Florida the Vehicular Manslaughter penalty is the same 15 years that DUI manslaughter is this is more smoke. The way I understand it the only difference the DUI makes here is that it makes it much more easy for the state to get a conviction, because the fault is assumed where as with Vehicular Manslaughter the state would need to do an accident analysis and prove that THom drove in a reckless manor.

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You got it all wrong Hawk. A drivers licence gives you license to drive with due care and attention. A driver should drive always defensively. A driver in any accident is always given partial blame, regardless of who is at fault, if the accident could have been prevented.
If you are in a two car accident, rarely will your insurance get %100 of the findings, because it's your duty to try and NOT get into an accident.
The only time the person not at fault gets a pass is when they weren't moving.
The person on the bike has the same responsibility. Good lighting, reflectors, helmets are all part of it, but they cannot protect their back. Do bicyclists need a license in Florida? Or are they given the right to travel on common passages? The same as pedestrians??
I don't know what the law is where you live, but up here, you can't drive if you can't get insurance. You can't get insurance if you can't stop hitting things. It doesn't matter if it's cars parked askew or other motorists, pedestrians or cyclists. If you drive like it's everybody else's responsibility to keeps the streets clear so you can navigate your way through, when clearly you shouldn't, you don't deserve to be on the roads.
Again, driving is not a right. It is a privilege, and because it is a privilege, there are rules one must follow in order to maintain it. Drunk driving is an offence to the victim and all others that must travel the same roads. It dangerous, avoidable and totally irresponsible.

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@Ceili,

No bike license of any kind in Florida

But cyclists are still libel to obey all vehicles laws including having lights on their bike and they can be and had been arrested for DUI on a bike.

The last story I read of that happening was in Key West when a man who had lost his license to drive a car due to past DUIs was arrested for DUI cycling home from a bar.

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@hawkeye10,

hawkeye10 wrote:

I prefer to encourage people to try to show me where I am wrong.

Almost everywhere.

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@DrewDad,

BillRM wrote:

as siting in jail for a year or so waiting for your day in court

DrewDad wrote:

Which is why people post bail.

Someone who is considered a flight risk might be denied bail.

You're discussing a tiny minority of the cases, and trying to blow it up into some kind of epidemic.

I'm sorry, but I just don't see the sky falling, here.

OK, try it this way:
the minority is so tiny that it is only U, Drew
and after that waiting a year in jail, u r found to be not guilty.
Is that OK, because the sky is not falling????? Tell us that?

DaVid

1 Reply

I just don’t understand drinking and driving

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