On July 5th of this year, Juan Francisco Moreno Herrera, 43 of Salida, California, was arrested on suspicion of murder after a collision between Herrera’s boat and a jet ski carrying a couple of teenagers. It was alleged that Herrera was operating his boat under the influence and, as a result, collided Vanessa Zamora, 14, of Watsonville, California, killing her and causing injuries to her 15-year-old cousin. Prosecutors also charged Herrera with two felony counts of driving a boat under the influence of alcohol.

Initially, according to prosecutors, Herrera caused the injuries to the girls because he was driving “his boat around in circles and did not attempt” to help either injured girl in the water following the collision.  

Under California Law, a DUI resulting in death will be charged as manslaughter if the driver has not suffered any prior DUI-related convictions. If, however, the driver has suffered a prior DUI-related conviction, they will likely be charged with second degree murder under California’s “Watson Murder Rule.” Under Watson, the California Supreme allowed murder to be charged in a subsequent DUI resulting in death because the driver was made aware of the dangers of drunk driving after having been sentenced on the prior DUI. It is almost as if the court is saying, “We warned you, you did it anyways, and now look at what happened.”

Herrera had been convicted of a DUI in the past, which allowed prosecutors to charge murder. As a result, Herrera had been in jail since his arrest, unable to afford the $2 million bail bond.

Kirk McAllister, Herrera’s attorney, however, believed the allegations to be false and his law firm conducted its own investigation into the collision.

Following McAllister’s investigation, it was learned that the girls had, in fact, collided into Herrera, not the other way around. What’s more, Herrera did, in fact, jump into the water to help Vanessa’s cousin stay afloat.

McAllister’s findings directly contradicted an affidavit filed by the Sheriff’s department alleging that “two independent witnesses” said that Herrera was driving his boat in circles and did not render aid. The affidavit, however, failed to identify the witnesses, and the sheriff’s department has refused to answer questions about the accuracy of the affidavit.

“What our investigation showed was that in fact they ran into him. In boating terms, he had the right of way. They hit him on the port side, or the left side. … He did the right thing, he powered down (the boat),” said McAllister to the Modesto Bee. “He had a terrible choice to make: One girl was not moving, the other girl was flailing in the water. He chose the one who was flailing because she was showing signs of life, obviously. He kept her afloat until another boat came.”

McAllister’s findings were submitted to the Stanislaus County District Attorney, and last month, the prosecution dropped the felony DUI charges and murder charge. Michael Scheid, the prosecutor assigned to the case, filed an amended complaint against Herrera alleging only misdemeanor boating under the influence charges.

Although the result might not sit well with some readers, the law requires it.

As the District Attorney’s Office itself recognizes, “[i]t is not enough to prove that someone who drank alcohol and was piloting a boat got involved in a collision where someone died,” said John Goold, a spokesman for the District Attorney’s Office.

By law the prosecution must prove every element of a crime beyond a reasonable doubt, and one element to the crime of second degree murder via DUI (or BUI) is that Herrera “did an act or neglected any duty imposed by law…which act or neglect proximately caused the bodily injury.” Based on McAllister’s investigation, Herrera simply did not.

“In this case, ongoing investigation led us to the inescapable conclusion that we could not prove all the elements beyond a reasonable doubt, which led to the filing of the amended complaint,” said Goold rightly so.

Following the amended complaint and dropping of charges, Herrera was released from custody on his own recognizance.

“I was in hell; that’s hell in there,” Herrera said following his release, recalling his time in jail awaiting prosecution. “Just thinking about my family. What was going to become of my kids and myself? Being in there for something that I didn’t do.”

Go ahead and ask Juan Francisco Moreno Herrera whether it’s a good idea to hire a criminal defense attorney when facing California DUI charges. In his case, it was the difference between a misdemeanor DUI and a murder.

Herrera still faces those misdemeanor DUI charges and expected in court this month.

Last week, a school bus driver from Paradise, California was arrested on suspicion of driving under the influence of alcohol after several students riding on her bus, as well as parents of children on that bus, reported that she may have been drunk.

Students and their parents called 911 to report that the school bus driver, Desiree Ann Abrams, was speaking loudly, interacting inappropriately with the students, and smelled as though she had been drinking.

“When we got on the bus that day, she was kind of slurring her words. I thought she was just having a really good day but when I sat down she was stopping people and asking them questions what’s your middle name, how old are you, you’re looking pretty good today,” Dustin Jones, an eighth-grader at Paradise High School, told local news outlet KRCR.

When CHP officers arrived, they observed signs commonly associated with being intoxicated and determined that Abrams was driving under the influence.

According to law enforcement, no students were on board of the bus at the time of the DUI stop because they had already been dropped off at their regular stops.

“I thought she was just joking around until I saw she got arrested then I believed it,” said Phenix Rye, a junior at Paradise High School.

Paradise Unified School District confirmed the incident.

“A Paradise Unified School District bus driver was arrested on 11-15-19. District Administration was present at the scene and confirmed that students were safe and secure. We are grateful for the prompt response of both the Butte County Sheriff’s Office and the California Highway Patrol as well as the courageous actions of students and families. As always, student safety remains our top priority. Resources will be made available for students that may need additional support. Thank you for your understanding and support in this ongoing process.”

Abrams is out on bond and facing DUI charges and child endangerment.

Not only is Abrams looking at the punishment under California’s DUI law, she is also looking at additional penalties because of the danger that she placed the student in.

Under California Vehicle Code section 23572, California’s child endangerment DUI enhancement law, a first time DUI conviction where a minor under the age of 14 is in the car will bring an additional 48 hours in a county jail. A second time DUI conviction will bring an additional 10 days in jail. A third time will bring an additional 30 days in jail. A fourth will bring an additional 90 days. Furthermore, these penalties are to be served consecutively, not concurrently with the underlying DUI penalties.

The prosecutor need only prove that the driver was driving under the influence and that there was a minor child under the age of 14 in the car when that person drove.

The students being transported by Abrams, however, were high school students whose ages generally range from 14 to 18. If so, how can Abrams be charged with child endangerment for a DUI if the enhancement only applies to children under the age of 14?

Often times, prosecutors will charge child endangerment as a separate and whole charge against a person under the Penal Code, not as a mere enhancement to a DUI under the Vehicle Code.

California Penal Code section 273(a) makes it illegal for an adult to 1.) cause or permit a minor to suffer unjustifiable physical pain or mental suffering, 2.) cause or permit a minor to be injured, or 3.) cause or permit a child to be placed in a dangerous situation.

The crime of child endangerment, if a misdemeanor, carries up to one year in county jail and up to a $1,000 fine. However, if the risk to the child or children included death or “great bodily injury,” a felony child endangerment conviction carries two, four, or six years in a California state prison, and a fine of up to $1,000.

It should be noted that a person arrested for a DUI with a child in the car cannot be punished under both the Vehicle Code’s enhancement law and the Penal Code’s child endangerment law. Thus, if Abrams is found guilty, she’ll be punished for the DUI, and either the child endangerment enhancement or a separate child endangerment conviction.

An hour is not enough time to sober up, at least not for Christopher McFarlane.

 McFarland was the passenger in his girlfriend’s car when she was pulled over after California Highway Patrol officers spotted her vehicle swerving in Santa Rosa, California. Anna Arthur was arrested for driving under the influence and McFarlane was, himself, too drunk to drive Arthur’s Honda home. McFarlane walked to Arthur’s house.

This guy wasn’t falling-down drunk, but was definitely over 0.08” percent, the legal limit for driving, said CHP officer Jonathan Sloat.

About an hour later and shortly after Arthur was booked into Sonoma County Jail, officers spotted a McFarlane driving a Jetta. McFarlane told officers that he was on his way to the jail to bail out Arthur.

McFarlane, apparently, had not yet sobered up because, according to Sloat, “The officers still noticed signs of intoxication, and McFarlane failed field sobriety tests.”

It was also determined that McFarlane was on probation and his license was suspended for a DUI conviction last year. As a result, not only was McFarlane booked on suspicion of a California DUI, he was also booked for violation of probation and driving on a suspended license.

McFarlane is going to need more than love to get him out of this jam. He’ll need a California DUI attorney. At least if both he and Arthur are convicted, they might be able to do their DUI classes together. 

I’ve posted repeatedly in the past of the hypocritical double standard that pervades the criminal justice system when it comes to drunk driving.  Members of law enforcement, prosecution and the judiciary are quick to accuse and severely punish those suspected of DUI.  Cops have quota systems and rewards for high DUI arrests; prosecutors seek promotions for winning convictions; judges and legislators fear being accused of “soft” on drunk drivers when election time nears.  

And yet….these same people are commonly guilty of the same crimes about which they act so righteously – and are all too often protected by the system.  See, for example, The DUI Double Standard, Guarding the Guardians, The DUI Double Standard Continues, When Judges Judge Judges and “I’m a Judge, Bro”.

And in yesterday’s news…

Third Florida County Judge in Seven Months Faces Charges

Broward County, FL.  May 28 (NBCNews) – Three Broward County judges have been arrested on DUI charges in the last seven months. The rash of arrests has sent shockwaves through the courthouse and prompted the county’s top public defender to say something is wrong with the judicial culture in the county.

“When people ascend to the bench and put that robe on, it’s very common that they start to believe that they are bigger than the law; they are above the law; they are the law,” said Broward County public defender Howard Finkelstein. “Is that happening in Broward? I’ve seen that happen here for many years, decades. I thought it was getting better. I still think it’s getting better, but this is a very big bump in the road.”

The latest arrest came Tuesday when Judge Lynn Rosenthal of the 17th Judicial Circuit was arrested after hitting a parked, unmarked patrol car in a Fort Lauderdale courthouse parking lot. Judge Rosenthal told deputies she was also forced into a guardrail on I-595 on her way to work before the parking lot accident, but deputies said video disputed that report…

Just last week, fellow Broward County Judge Gisele Pollack was suspended from the bench without pay after she was arrested on DUI charges earlier this year following a car crash.

In November, long-time Broward Judge Cynthia Imperato was arrested for DUI in Boca Raton…

Want to bet whether this judge, like so many other judges, cops, prosecutors and legislators, will get nothing more than a slap on the wrist — if that?

(Thanks to Matthew Kensky.)
 

Memorial Day provides weekend warriors the three-day weekend to remember those who died while serving our country. However, as the unofficial kick-off to summer, it also provides three full days to barbeque and indulge in some pre-summer drinks.

If you happen to be in Illinois, you could earn yourself a cool $100 for reporting a drunk driver. Or you could find yourself the target of a DUI investigation because someone else thought they could make an easy $100.

Chicago’s WBBM’s Steve Miller reported that, this Memorial Day weekend, the Alliance Against Intoxicated Motorist (AAIM) will be paying tipsters $100 for reporting a drunk driver in the state of Illinois.

“The tragic consequences are heartbreaking when somebody decides to get into a car and they think that they’re OK to drive. And they’re not,” said Rita Kreslin, the executive director of the AAIM. “We have paid out over $486,000. That’s 4,866 people that have been drinking and driving that have been removed from the roadways.”

She also said AAIM has taken some criticism for this approach, but “the majority of those people are probably the same people that would drink and drive and not think twice about it.”

Sorry Rita, not true.

I’m giving this approach flak because it creates the possibility of innocent people being stopped and investigated for drunk driving. How many people were reported who weren’t drunk? How many people will be stopped simply because it was a possibility that the tipster be paid $100? Unfortunately, I can’t answer these questions.

More importantly, how many of the tipsters actually know that a driver is drunk? This one, however, I can answer.

None.

Forget tipsters making completely false reports. Let’s say there is a reason for the tip. Tipsters will be reporting mistakes in driving, not drunk driving. And we all know there is a multitude of reasons why someone can make a mistake in driving other than intoxication. But that’s not going to matter, is it? With a $100 incentive, driving error equals drunk.

Fortunately, we’re all the way over here in California and about 1,700 miles away from AAIM’s incentivized witch-hunt. But it begs the question: Does the tip even give the officers the authority to pull someone over when they, themselves, saw nothing that would indicate a DUI?

Unfortunately, in California (…and the rest of the country) the answer is yes.

Recall my colleague, Lawrence Taylor’s post http://www.duiblog.com/2014/04/23/anonymous-tips-now-enough-to-stop-drivers-for-dui/

The United States Supreme Court recently held that an anonymous tip is sufficient to justify a police stop for the purpose of investigating a DUI even though there is no way to verify the truth or reliability of the anonymous tip.

So much for the 4^th amendment and probable cause. And in Illinois, people actually get paid for their participation in the undermining the Constitution!