@hawkeye10,
Quote:Thom has no opportunity to argue that his diminished capacity had nothing to do with Barry's death.
A defense lawyer could try to argue that, but I doubt that one in his right mind would risk doing that at trial. If Lancaster died due to the trauma of being hit by Swift's car, you cannot eliminate the car and the driver from the death. You cannot argue convincingly that diminished capacity does not affect a person's ability to operate a motor vehicle or to avoid accidents--by definition, diminished capacity is affecting those abilities. That's why we have drunk driving laws.
A lot may depend on whether the accident was witnessed, and what those witnesses might have seen.
Swift apparently didn't see Lancaster until he landed on his windshield, so he can't give a full accounting of events prior to impact--he thought he might have hit a pedestrian meaning he never saw a person on a bike.
Barring witnesses, an accident reconstruction expert might be able to determine how the collision took place.
Were there even skid marks to indicate that Swift tried to brake, or did he just plow into Lancaster? Even if there were no lights on Lancaster's bike, which we have no way of knowing, why didn't Swift see him at all before the man landed on his car? Did he have his car headlights on? Was the street absolutely, totally pitch black, with no street lights of any kind? Was Swift traveling fast, too fast if the conditions were foggy? Even if there was fog that night, why couldn't he swerve to avoid Lancaster, or hit the brakes, once the bike was within the range of his headlights ?
If Swift didn't see Lancaster until the man landed against his windshield, his attorney will have a hard time claiming that the accident itself was unavoidable, under any circumstances. This isn't like a child who, while chasing a ball, runs out from between parked cars directly in front of a moving car--although even in that situation, it can be argued that the driver should have seen the child running on the sidewalk toward the street, or should have seen the ball bouncing into the street and anticipated someone might follow it.
In this case, the bike was on the road, traveling in the same direction as the car, probably in front of the car. So, why didn't the driver see it before he hit it? Suppose it had been a pedestrian walking in the road in the same direction as the car? Isn't a driver responsible for seeing him and going around him, or blowing a horn to alert him?
Every single accident I've ever had while driving, beside being hit in the rear at a red light, happened because I was either distracted or not paying enough attention. I've been driving since I was 16 and I haven't had many accidents at all, but the few I've had could probably all have been avoided by me, including the ones that were due to dumb mistakes of other drivers, if my mind hadn't been momentarily elsewhere for a few seconds.
A great deal of driving involves defensive driving and accident avoidance, and watching out for pedestrians, bikers, pets running loose, children running into the street, and lousy drivers or drivers who might be drunk. And a drunk driver can't react as fast as a sober driver to avoid a sudden, unexpected situation. So, a defense attorney would have a hard time arguing that Swift's impaired state did not affect both Swift's ability to perceive Lancaster on that bike as well as his ability to perform the driving maneuvers that might have avoided a collision.
Which is why I don't think his defense attorney will take that tack unless there are witnesses who can say the collision was absolutely unavoidable by Swift for some reason, like extremely dense fog and no available streetlights and no lights on Lancaster's bike. But, if the fog was that dense, Swift should have been crawling along at a snail's pace, and therefore able to stop on a dime if he suddenly saw something in front of his car.
DUI manslaughter in Florida simply requires that Swift contributed to Lancaster's death. And he certainly did that by hitting him with the car. To argue that Swift's impaired state was not a factor in that occurrence, Hawkeye, really does not make sense because there is no way of eliminating his impaired state from the situation. And, we don't know just how impaired he was, his BAC might have been considerably above .08 which would make it even more of a factor. But, if the defense can find some way of arguing it, I'm sure they will.
It's more likely the defense will challenge the BAC testing procedure, or the arrest procedures and when Swift was given his Miranda rights to try to get the BAC testing and Swift's "confession" to the police, about driving and hitting someone, thrown out. If the accident was not witnessed, the state has to have other evidence that Swift was behind the wheel when the car hit Lancaster because Swift did not remain at the scene. If he told police he was driving, as part of making an accident report, before he was given Miranda warnings, and he did not repeat that statement after being given the warnings, his statements cannot be used against him as the sole evidence he was driving. The state will have to find another way of establishing he was behind the wheel, and that might be easy or not easy. And that sort of thing can be a bargaining chip for the defense in a plea deal.
But Hawkeye, all the legal wrangling between the prosecution and the defense, is also apart from the reality of the situation. Swift was driving drunk and he killed someone--and he knows that. So, whatever tactics his lawyers might use to get him a better plea deal, or even the tactics they might use to convince a jury at trial, are not necessarily reflective of the "truth" of the matter. I read about a case yesterday where a judge dismissed DUI charges against someone because the defense presented evidence that suggested the DUI arrest might have been made to meet a quota, which would be illegal on the part of the police. Did the legal dismissal of charges mean the person hadn't actually been driving drunk? No, they had been driving drunk, their lawyer just found a clever way to convince a judge to dismiss the charge. So legal guilt or innocence doesn't always comport with the "truth".
And, since we're not in a courtroom, and we're not bound by the legal rules and procedures that must be followed there, I think our discussion should be more real and less quasi-legal because we're not actually trying a criminal case here. Swift knows he was drunk and that he killed someone, and, according to jcboy, he is very depressed about that fact. So, beside whatever prison sentence he might or might not receive, that's a personal burden of guilt he will have to live with for the rest of his life. And, unlike you, I doubt he's trying to alleviate that guilt by thinking of Lancaster as a worthless bum whose death didn't matter, and, unlike you, he probably isn't trying to remove alcohol as a factor in that death. Looking at things in legal terms is quite different than looking at them in human terms. Why not stop playing lawyer and look at the situation in simply human terms. One man is dead and another's life is in turmoil, all because of drunk driving. In human terms it's simple, and it has nothing to do with a power mad goverment hammering on citizens. We need people to stop driving drunk.
