After a six-hour wait in a Winnipeg emergency room, Bonnie Guagliardo returned home without seeing a doctor. She was found dead the next morning.
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Because of their unpopularity, drunk driving cases are often used by police and prosecutors to chip away at the constitutional guarantees of our citizens. See The DUI Exception to the Constitution. Every once in awhile, however, the media shows a little courage and gets it right. From an editorial in yesterday's New York Times:
Is the Driver Drunk?
Jan. 5. New York, NY - The Fourth Amendment prohibits the police from searching individuals without a warrant, but the Supreme Court allows exceptions to that rule for “exigent circumstances” — when the police believe that the delay involved in getting a warrant would lead to destruction of evidence.
In Missouri v. McNeely, scheduled for argument at the court on Wednesday, the police forced a driver to take a blood test at a hospital without a warrant, after he refused to take a breath test with a portable machine when he was stopped for erratic driving. The blood test showed that his blood alcohol content was 0.154 percent, or almost twice the state’s legal limit.
The Missouri Supreme Court wisely ruled that the warrantless blood test was an unreasonable search because there was no emergency that prevented the police from getting a search warrant in a timely manner before the alcohol in the driver’s blood dissipated.
Missouri is now asking the United States Supreme Court to overturn the state court ruling and to radically revise Fourth Amendment law so that police — without a warrant — can draw blood from every person arrested on suspicion of drunken driving, regardless of the circumstances. The United States government, siding with Missouri, argues that warrantless blood draws are needed “to prevent the imminent destruction of evidence.”
But in 21 states, including Missouri, the police have successfully obtained thousands of warrants to get blood alcohol evidence.
If the Supreme Court applies the blanket rule Missouri seeks, it will diminish constitutional rights without increasing public safety in any meaningful way.
An investigation into a June 11 fatal skateboarding accident has now led to alcohol charges for at least two North Carolina residents. An 18-year-old Salisbury, North Carolina man called 911 around 1:30 a.m. June 11, to report that his 16-year-old friend had been injured in a skateboarding accident. The caller reportedly had been driving a pickup truck, while following the skateboarder that early morning.
Authorities say that they found the skateboarder in the street when they arrived at the scene. They believe that the young man lost his balance and fell, although they continue to suspect that the skateboarder may have been “towing,” or “skidding” behind the pickup truck when the horrible accident occurred. The skateboarder suffered head injuries and tragically died that morning at the hospital.
Law enforcement claims that the skateboarder and his friend were drinking before the fatal accident. The friend who had called 911 was cited for underage drinking and an open bottle violation. Investigators reportedly looked for the source of the alcohol and have now charged the owner of a convenience store with two counts of selling a malt beverage to someone under the age of 21.
Rowan County deputies and agents from the North Carolina Alcohol Law Enforcement Division reportedly reviewed surveillance tapes from the Salisbury, North Carolina convenience store. Authorities claim that the tapes show the skateboarder buying beer on June 9 and June 10. Authorities claim that staff from the convenience store did not request an ID from the 16-year-old in either alleged alcohol purchase.
Officials say the investigation into the fatal accident remains open.
Source: Charlotte Observer, “Alcohol charges filed in teen’s skateboarding death,” Meghan Cooke, June 20, 2012
A Little Black River First Nation woman has pleaded guilty to manslaughter in the beating death of a rising young aboriginal artist.
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RCMP in Dauphin have charged a man in connection with Leanne McLean’s death March 21.
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Infant died at Garden Hill First Nation in 2009
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Police say a 19-year-old Charlotte man faces multiple charges after allegedly crashing his car in an alcohol related accident. Law enforcement claims the young man lost control of his 2004 Ford Mustang while traveling northwest on Scaleybark Road in south Charlotte, North Carolina. Police say the car ran off the road around 11:30 p.m. Tuesday night. Police say the Mustang careened off a power pole, rolled onto its side before crashing into a tree alongside the road. Police originally charged the 19-year-old with driving while impaired and reckless driving.
A 42-year-old woman, who was riding in the Mustang as a passenger, reportedly died in the crash. Law enforcement says they have obtained warrants for felony hit and run and felony death by motor vehicle. Any Greenville DWI defense attorney would understand the state can charge a person with felony death by vehicle based upon allegations of a driver, who is allegedly impaired as defined under North Carolina law and who allegedly causes a car accident involving the death of another person. A person charged with a DWI related offense has the right to defend against the charge.
Law enforcement claims a witness says the 19-year-old climbed out of the wrecked Mustang and fled on foot after the accident. The witness says the Charlotte man ran from the car around the time emergency personnel arrived at the crash site.
Law enforcement says they located the 19-year-old a short distance from the crash scene and took him to Carolinas Medical Center for treatment of minor injuries. The young man now faces serious charges based upon the allegations of law enforcement.
Source: Charlotte Observer, “Driver runs from scene of crash, female passenger dies,” Steve Lyttle 6 Jul 2011
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.
A man whose dangerous driving led to the death of an elderly man is going to jail.