Monthly Archives: June 2011
Is it possible to be an accomplice to drunk driving – that is, to be convicted of “aiding and abetting” a person who was driving under the influence of alcohol?
In one case in Maine, two men were drinking together in a bar. When they left, the owner of the car had his friend drive since the friend was less intoxicated. The two were stopped by the police, and the owner/passenger was taken to a police station — where he refused to take a breath test because he said he had not been driving. He was subsequently charged with operating or attempting to operate a motor vehicle under the influence. At trial, the jury found him guilty as both a principal and an accomplice.
On appeal, the court held that the accomplice statute applied to drunk driving offenses, and that the evidence was sufficient for a jury to find both the intent and the solicitation necessary for accomplice liability. The defendant, said the court, had the specific intent to enlist his accomplice/friend in driving under the influence. State v. Stratton, 591 A.2d 246 (Me. 1991).
How far can this go? Can you be guilty of letting a friend drive while intoxicated?
The majority rule in American courts today is that any passenger, including the owner, can be held criminally liable as an aider/abettor in the commission of the offense of DUI. Nor is there any requirement that the accomplice be a passenger in the vehicle. In Guzman v. State, 586 S.E.2d 59 (Ga. App. 2003), for example, the defendant was convicted of two counts of vehicular homicide when he allowed a 14-year-old to drive his bother and a friend in the defendant’s vehicle after having given beer to the boys. His criminal intent was inferred by his conduct in giving the driver alcohol and the car keys, then standing silently by as the 14-year-old got behind the wheel and drive away.
Note: Drunk driving is a general intent crime — that is, it doesn’t require proof of an intent to drive under the influence. Accomplice liability ("aiding and abetting"), on the other hand, is a specific intent offense — it requires proof of an intent to assist the commission of a crime. Query: Assuming the validity of an accomplice theory, could not the accomplice’s own intoxication degate the specific intent required to be an accomplice?
Yes, the death penalty. In a drunk driving case. In these United States. For murder…… No, not involuntary manslaughter. Not vehicular homicide. Murder. And first-degree murder. As in pointing a gun at someone and pulling the trigger. MADD has been so successful in their political pressure campaigns that they’ve actually gotten some courts and legislatures to create a new type of crime: DUI murder.
Wait a minute, you say. I thought you had to INTEND to kill a person before it’s murder. You have to "premeditate" and that kind of thing, right? Well, yes and no. Each state is a little different, of course, but most follow similar laws. And those laws generally break a homicide ("the killing of another human being") into different categories. The first is excusable homicide — where, because of self-defense or other justification, the death is not considered a crime. Next is "manslaughter" — basically, a killing that is not murder. There are usually two kinds of manslaughter: voluntary and involuntary. Voluntary manslaughter is sometimes called a killing in the "heat of passion"; you lacked the time or ability to reflect on the act. Involuntary manslaughter is an unintentional homicide: you didn’t mean to do it, but you caused a death by your negligence or recklessness.
When a drunk driver causes an accident in which someone is killed, he is usually going to be facing involuntary manslaughter charges. Some states use different terms, such as "vehicular manslaughter" or "vehicular homicide". Either way, the death was unintentional, but it was caused by the driver’s negligent or reckless conduct.
And then there’s murder. That’s what you see on TV and read about in the papers: someone plans to kill someone else and, in cold blood, takes his life. But just to complicate things, in most states there are two kinds of murder: first degree and second degree. Murder in the first degree usually requires meaningful premeditation: you thought about it, planned it, carried it out. Second degree murder only requires a mental state known as "malice". What is malice? Well, usually it means the intent to kill someone: you intended to kill that person, but it may have happened so quickly that you never really thought it out. Intent, but no premediation.
So where does DUI fit into all of this?
It seems pretty obvious that it belongs in the "involuntary manslaughter" category — an unintentional accident but with negligence/recklessness. However…. This idea of "malice" is pretty vague. Very vague. Actually, it can pretty much mean whatever you want. Perfect, really, for a group like MADD looking for new ways to "get tough " on drunk drivers.
A prosecutor in California came up with a bright idea a few years ago. He simply ignored the vehicular manslaughter statute and charged a drunk driver with second-degree murder. And, DUI being a pretty unpopular crime, actually managed to convict him. The defendant appealed, saying the prosecution can’t just invent new crimes: he has to charge the offense specified by the legislature. The California Supreme Court disagreed, saying that he could be charged and convicted of murder if he acted with "malice" — that is, if he "does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life".
Base antisocial motive? What’s that? The Court tried to clarify:
"One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he must operate a motor vehicle, thereby combining sharply impaired physical and mental facilities with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others." People v. Watson, 30 Cal. 3d 290 (1981)
Well, the problem is that the Court was pretty much describing ANY drunk driver. Recognizing that this opened the gates a bit wide, the courts have tried to limit over-zealous prosecutors by requiring a more serious type of malice. They came up with "conscious indifference": A drunk driver can be charged with murder if his state of mind was, "I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed." Still pretty vague. Doesn’t alcohol itself cause indifference? And how do you know what’s in someone’s head when he’s drunk? Well, it turns out that you can now prove malice if you can show that the defendant knew drinking and driving could be dangerous. Of course, everyone knows that, right?
So where does that leave us? Any DUI defendant who knows drunk driving is dangerous can be charged with murder?
Apparently so. In People v. Murray, 275 Cal.Rptr. 498 (1990), the appellate court upheld a DUI murder conviction where the prosecution proved he had attended a DUI education class and told someone he had learned a lot from it. This was enough to show that he was aware that drunk driving was dangerous and so he acted with "malice". And, thus, murder.
With this kind of legal reasoning, it’s only a matter of time before we’re looking at the death penalty in a drunk driving case, right? Well, on April 8, 1997, a jury in Winston-Salem, North Carolina, came back with a first degree murder conviction in a DUI case involving a traffic accident with two deaths. They recommended a sentence of life without the possibility of parole.
The prosecutor had argued for the death penalty.
Most Americans believe that there is a constitutional right against being forced to provide evidence against yourself. And certainly, most Americans could not imagine that a citizen arrested for a criminal offense could actually be charged with a separate criminal offense of not giving possibly incriminating evidence — in other words, if you don’t provide evidence against yourself, you will be convicted of refusing to do so and be thrown in jail. Not in the U.S., right?
Wrong. But then most Americans aren’t familiar with "the DUI Exception to the Constitution".
Most people don’t realize it, but it is a criminal offense in a growing number of states for a citizen arrested for drunk driving to refuse to give a breath or blood sample; in most other states, a refusal increases the penalty for the DUI itself. After the DUI arrest, the police will tell the suspect to submit to a blood or breath test; if he refuses, he will be charged with drunk driving — and with refusing to submit to testing. And he can be convicted and sentenced for both. In some states, the penalty for refusing is the same as for the DUI offense itself.
Wait a minute….Is it a criminal offense to refuse to provide semen in a rape case? Nope. Can you be thrown in jail for not providing a hair sample for DNA analysis in a murder case? Uh-uh. Then why only in drunk driving cases? Ask MADD — and the politicians who cater to them.
The New Jersey Supreme Court addressed this issue a couple of weeks ago:
Judge: Failure to Provide Proper DUI Breath Test Akin to Refusal
Gloucester Co., NJ. May 27, 2011 – The failure of a motorist suspected of drunk driving failing to provide proper breath samples — of sufficient volume and length — constitutes a refusal that enables police to file an additional charge, the state Supreme Court ruled Thursday…
Woolwich Sgt. Joseph Morgan pulled over a motorist on Nov. 29, 2007 for allegedly swerving between the east and westbound lanes of a road within the township’s borders. The motorist cited a physical handicap that would prevent him from performing field sobriety tests.
At the Woolwich station, he consented to provide breath tests that would eventually be administered by a Logan Township officer. The motorist provided samples of 1.2 liters over 4.9 seconds and 1.2 liters over 3.3 seconds, Stern noted in his opinion. The officer needed a minimum 1.5 liter sample.
So unlike with any other criminal offense, a DUI suspect can be charged with drunk driving….and with refusing to give the officer possibly incriminating evidence.
It gets worse.
The various breath machines all require the suspect to breath through a narrow breath tube hard enough to lift an inner piston, permitting the sample to enter the sample chamber. The reason is that blowing hard forces the suspect to produce the air from the deepest part of his lungs (alveolar air) — air with the highest percentage of alcohol; the harder the blow, the higher the blood alcohol level. When there is insufficient pressure from the suspect to activate the sample-capturing mechanism, the machine will signal that the test is invalid. At that point, the officer assumes that the suspect is purposely not breathing hard enough in order to avoid incrimination, so he discontinues the test and reports it as a refusal.
But how does the officer know that the reason for the failure to produce a breath sample is intentional? He doesn’t, of course; being a police officer, he merely assumes it. But the amount of pressure required to lift the valve can be misadjusted, and many of them begin sticking after constant use. And the tube can be too narrow; the manufacturers of one breath machine, the Intoxilyzer 5000, had to enlargen the breath tube in later models because of large numbers of complaints.
Many individuals, particularly the elderly and cigarette smokers, simply do not have the lung power. And then there are the millions suffering from emphysema or asthma.
Researchers in one scientific study of asthmatics found that only 2 of 51 subjects were able to breathe hard enough to activate a breathalyzer. P.J. Gomme et al., “Study into the Ability of Patients with Impaired Lung Function to Use Breath Alcohol Testing Devices”, 31 Medical Science and Law 221 (1991). In other words, 49 of them would have been prosecuted and punished for “refusing” a breath test.
The law, in its wisdom and majesty, continues to punish citizens for not breathing hard enough to activate these machines — with little or no evidence as to the reasons why. And as is common in DUI cases, the reasons are presumed (see “Whatever Happened to the Presumption of Innocence?”) — and, of course, who is going to believe the defendant’s denial?
Welcome to the insanity of MADD’s "war on drunk driving".
(Thanks to Dr. Ronald Henson.)
Ok, I admit it: I’ve finally been dragged kicking and screaming into the Age of Facebook, profile (Lawrence E. Taylor) and all….
In Illinois, they carry the same sentence: 15 years in prison. That’s right: using your cell phone to record cops beating up a citizen, for example, can land you in prison for 15 years (although it’s perfectly legal for the cop to record you).
An eye-opening news video entitled “Valley Man Faces 75 Years in Prison for Recording Law Enforcement” documents the current plight of Illinois citizen Michael Allison. Allison is facing 75 years in prison for five counts of openly audio taping public officials – a sentence usually reserved for murderers. When he recently sued police for discriminatory law enforcement, the judge at trial refused to provide a court reporter. Understandably wanting a record of the proceedings, including the cops’ testimony, Allison told the judge he would record them himself. He was later arrested and the recording confiscated.
These laws are not limited to Illinois. Designed to protect cops and public officials from public scrutiny, they exist in many states across the country. And one has to question why they exist at all in a supposedly free and open society — much less carrying sentences usually reserved for murderers and rapists. Are cops and officials that afraid of having their conduct exposed to the light?
I wonder if taping a cop in China or North Korea is punished as severely as in Illinois – if at all?
(Thanks to David Baker.)