18 December 2003

Manslaughter & DUI:

When I finished my case today I stuck around to watch a trial on a misdemeanor DUI and a preliminary hearing for DUI Manslaughter.

The prosecutor was the only one to put on any evidence and it was basically this: The Officer testifies that he was told by Defendant that he and his Best Friend get off work early in the morning and go to get breakfast. They split a pitcher of beer over breakfast, then they hang out until lunch and split another pitcher of beer over lunch. Driving back from lunch Best Friend stands up in the Jeep and hangs on to the roll bar. Defendant has to hit his brakes because of the car in front of him and Best Friend is thrown forward out of the Jeep. Statements are allowed in despite the fact that the Defendant was being held in a police car when this particular Officer arrived on the scene, the Officer testified that Defendant was not free to leave, and the Officer never read the Defendant Miranda. The Officer testified that the Defendant was upset over the death of his friend when the Officer administered 4 sobriety tests. The first administered was the "heel to toe walk a line" test. Defendant tries to start two times and the Officer stops him to keep him from doing the test before he receives the complete instructions. Defendant then walks 9 steps forward and turns and walks six steps back. One of the first nine steps is not in a straight line but the rest of the test is perfect. Defendant then passed the hand dexterity test. Defendant then passed a number counting test. Defendant then passed an alphabet test. At this point, the Officer reads him the statement of implied consent and takes him to the station for a breath test. The test was a .08 BAC.1 The BAC analysis is admitted over Defense argument that there was no probable cause as is needed to require citizens to submit to the BAC test.

Another prosecution witness - driving in the car behind - says she saw Best Friend doing things to mess with Defendant as he is driving; then she sees Best Friend stand up in the Jeep, holding onto the roll bar. She allows her car to fall back some from the car because of what Best Friend is doing. Then she sees Best Friend disappear and the car brake and swerve to the right. She pulls over and tries to call 911 but police arrive before she can. She sees the Defendant sitting in the street cradling Best Friend (now dead) in his arms. On cross she testifies that Defendant was driving correctly, no swerving, no dodging in and out of traffic, not even speeding.

The prosecutor looked like he was in pain. It was obvious that someone higher up the food chain had handed him this dog to try and his own witnesses were making the Defendant look sober. The only true evidence of intoxication was one step out of 15 in the line walk. But he need not have worried. The judge found the Defendant guilty of DUI and certified the DUI-Manslaughter to the grand jury. How? I have no idea.

During the sentencing phase for the DUI, Best Friend's parents both testified that they did not want this case brought against Defendant and that he had suffered along with the family and they did not want him punished further. The judge gave the Defendant 30 days in jail.

All I kept thinking, throughout the entire hearing, was: Why in the world would the prosecution go forward on a case like this?

1 If you've done any work at all with DUI's you realize very quickly that no matter what the law says almost no one is inebriated at .08. Still it is the level at which you are presumed guilty under the law and the Commonwealth no longer has to prove its case beyond a reasonable doubt. I have read the sophistry and apologetics in the decisions of various courts appellate; please don't write me telling me I'm wrong about the burden shifting. If it walks like a duck and quacks like a duck, it's a duck.

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