In 1983, a friend who was like a little sister to me was killed by a drunk driver... one who had a history of DUI arrests, but was still on the road. In those days, Mothers Aganst Drunk Drivers (MADD) was still a new thing. States had not cracked-down on drunik drivers like they have today. The blood alcohol level at which one was presumed to be drunk was higher than .08 (it was .1 or, in some states, even as high as .12). Police departments did not, in those days, always have the strict policies and procedures for handling drunk drivers that they do today. Consequently, the drunk guy who hit my friend head-on and killed her was able to sit in the squad car with the police officer with the windows rolled-up (which, therefore, meant that the officer could not have missed the smell of alcohol on him), yet said drunk guy did not get cited for DUI. Nor was any field sobriety test conducted; or blood alchohol test requested. Fortunately the drunk guy was injured enough to be taken in an ambulence to the hospital, where a routine blood draw was taken just as part of normal emergency room procedure. When no DUI charges were filed against the drunk guy who killed my friend, I set out to build a case against him myself through completely legal means. I interviewed everyone from the guy who was in the car with my friend but who wasn't also killed, to the tow truck drivers, to the paramedics, to the cop on the scene, etc. I even figured out what bar the drunk guy had been drinking at and interviewed both the bartender and a few patrons. I found people in the drunk guy's life who knew him -- including co-workers and even family members -- and got their statements. I got a state police accident reconstructionist to diagram how the accident had to have happened based on where the cars started out before impact, the skid marks and other damage at the scene, and where (and in what positions) the cars ended-up after impact. Of course I got tons of photos... including photos of the inside of the drunk guy's car as it sat in the junk yard, and in which were both opened and still sealed (and full) beer bottles, including one full one lodged under the brake pedal. Then, probably illegally (or at least in violation of the drunk guy's privacy rights), I got my hands on the results of the aforementioned routine emergency room blood draw. He was more than three times the then-legal limit, and only approximately .07% lower than the amount of alchohol that is generally considered to be potentially lethal. It was .318 I typed-up the whole thing into a neat, nicely bound, nearly-half-inch-thick report (which included a sworn affidavit by me as to motivation, means and methodology), and I took the whole thing to the county prosecutor's office (where I just happened to know one of the deputies, but which deputy recused himself because of that and asked yet another deputy to handle it). Of course the prosecutor's office could not use my investigation directly since I was not a sworn investigator. But they handed my report to one of their sworn-and-badge-carrying prosecutor's office investigators and directed him to duplicate my investigation and obtain proper statements from everyone... including subpoenaing that emergency room blood draw. At the conclusion of said investigation, the drunk guy was charged, though not as severely as he would have been had it happened today. Nevertheless, it was still several misdemeanors and felonies. He was in real trouble, even by mid-'80s standards. He posted bond, of course... and while he was awaiting trial -- during which time his license had been suspended pending said trial -- he got caught not only driving again, but also being drunk, again, while so doing. Eventually the drunk guy who killed my friend pleaded "no contest" to the charges... but he was only sentenced to, get this, two years of weekends in the county jail; plus a fairly hefty fine; and suspension of his drivers license for ten years. As I said, it was back before MADD and other similar organizations had lobbied states to get smarter and stricter about handling drunk drivers... and long before .08 became the standard that it is today. Soon thereafter, I joined a MADD chapter myself, and was active for a little while. Though I had pretty much never done so before that experience, I most definitely have never, since, gotten behind the wheel after having had more than two drinks over at least a two to three hour period... and even that has only happened maybe three or four times in the past twenty years. In fact, I just don't have the occasion to drink very much in my life. I once calculated that I drink perhaps the equivalent of two bottles of wine, and/or not even a six-pack's worth of beer in a typical year... or sometimes even longer. I absolutely love a good single-malt scotch, but I've had the same partially empty bottle of Glenfiddich in my cupboard for almost 10 years (alongside a nearly 10-year-old, partially-empty bottle of Boggs cranberry liquor and a few other things I pretty much never touch); and I can't think of even ten times in the past... oh... say... maybe five years, when I've ordered a Glenfiddich (or Glenlivet) -- or, at most, two -- during dinner at a restaurant with family or friends. But now I'm digressing wildly. My point in telling the story is that I wanted to ensure in the mind of the reader here that I am by no stretch of the imagination a drunk driver apologist or supporter. I needed to establish that because I wanted to say: O'Flaherty may be right... probably is, in fact... or so it is my opinion. In the interest of fairness and dispassionate presentation, I wish the reader, here, had only been directed to the Washington Post article, however, and not also the highly opinionated "Hit and Run" piece... or so it is also merely my opinion. But no harm done, either way. This country wants drunk drivers off the road. That's understandable and inherently right. Obviously, I agree with that. But constitutional protections in law must never be end-run. The ends must never justify the means. If one reads the Washington Post article carefully; and if one truly understands the nature of "presumption" in the legal sense that is at the heart of O'Flaherty's actions, one understands what is the real issue. On that real issue, O'Flaherty's got a real point. Sadly, those who can't get past how it's all shaking out as a practical matter will probably never see or understand that. The "Hit and Run" piece clearly conveys that viewpoint. Who knows, therefore, how it's all gonna' be resolved. Probably not well, I'm guessing.
Gregg, To your delight or dismay, we are much in agreement. I've had my own problems with drunk drivers. And I've watched police let drive away a stumbling drunk who totalled my car. Nonetheless, I believe in punishing real crimes and not presumed ones. I can't see ruining the lives of harmless social drinkers while knowing the crud who killed your friend would likely have done so despite any laws.
Every single person who has killed someone while drunk-driving started out as a "harmless social drinker". I was never able to understand why it was more acceptable to kill someone with a vehicle while drunk, than to just shoot and kill them. Thankfully, the public is starting wake-up.
And my saying that O'Flaherty may be right doesn't mean that I don't agree with every single syllable of that sentiment as well. It's a vexing problem... and a fine point of law that the typical citizen, I fear, doesn't understand; and so they just see O'Flaherty as a nutjob. I'd like to see the politicians and the legal community take-up this O'Flaherty thing -- not him, but his point -- with seriousness, and rewrite legislation so that O'Flaherty's concerns are adequately dealt with, but without giving drunk drivers the pass that its ending-up giving them for the moment. O'Flaherty is clearly trying to get that started with the six cases he let flow into the system with the intent of having them reviewed by a higher court. He's not as nutty as he might sound. He's trying to get this talked and thought about so that the law can be changed so he can put drunk drivers away, but still honor the very constitution which he swore to uphold. I'm tellin' ya... I'm likin' this guy. Sadly, though, what will probably happen is that the prosecutor's office will figure out a way to end-run O'Flaherty; and then the legislature will not renew him. And that will be that. Pity.
That's a slogan, Bruce. And not true. I was never able to understand why people will so dishonestly attribute to respondents what they have not said or implied.
Which was in reponse to Bruce's statement: In strict context to the thread maybe it's understandable why Bruce's response may have been taken that way. But from how I read his comment it didn't seem he meant it that way at all. What came across to me was simply an acknowledgment of the fact that drunk drivers who kill are far less penalized than someone who shoots to kill, and this is true in many states even when the drunk already has a record of multiple past convictions for drunk driving where no deaths resulted. Kit
That most certainly is true. Drinking isn't so harmless after it leaves carnage on the roadways. When was the last time you had to tell someone their father/mother/son/daughter won't be coming home because of some drunk's selfish actions? I was commenting on the political landscape in this country, which for years allowed slap-on-the-wrist sentences for drunk drivers who kill even multiple people in one incident. Thankfully, that's starting to change.
How often is that someone who'd had a glass of wine with dinner? Well, I'd hope that they who kill get more than a slap on the wrist. But that's not the issue. If I'm stopped for driving erratically then I should be so charged. The reason, with possible exceptions, should be besides the point.
Hardly ever. If you go back and read my posts in this thread, you'd know that I am not opposed to anyone having a drink with dinner. It's not illegal to drink, then drive. It's illegal to be impaired by alcohol while driving. Trust me, after almost 18 years in law enforcement and having dealt with thousands of drunks, I know the difference. Think again. Read these articles; http://www.southofboston.net/specialreports/drunkendriving/index.shtml I recently arrested a guy for his 5th-offense drunk driving. He was passed-out, drooling on himself, while behind the wheel of a full-size GMC pickup truck in the parking lot of a very busy video store. The truck was running, in "Drive", facing the exit of the parking lot, which is a busy state highway. The only reason the truck didn't roll out onto the highway was because the drunk passed-out with his foot on the brake. It was 8:30pm, it very easily could have been my wife & children he crashed into if his foot slipped off the brake. The guy hasn't had a valid license since the early 1980's. I guess the fact that he was totally annihilated (couldn't speak or stand-up) was "besides the point"? What should I have cited him for....illegal parking, since he wasn't in a parking spot?
Why aren't the prosecutors doing their job? I wonder why the prosecutors haven't sought a writ against the Judge from their Superior Court or whatever their Court of General Jurisdiction is? The Judge might be correct in a strictly theoretical jurisprudential sense; actually, I don't think so, but for different reasons than those expressed in the article or this forum, but his rulings have two nasty charactoristics: -He rules AT TRIAL after jeopardy has attached, thus making an appeal by the State impossible, and -His position is contrary to the case law developed in the higher courts of his own state and I'd bet virtually every other state. He actually has NO right to rule contrary to precedent in so well established an area of law. He is, in fact, a judicial activist and not a good Judge. All of this would support a petition for writ of superintending control requiring him to either follow the law as enacted by the Legislature and interpreted by the Courts that are superior to his own or, if he refuses, to recuse himself from DWI cases altogether.
Nosborne, what happens if a district court judge makes a ruling that is clearly opposed to established case law decided by a superior, appeals, or supreme court? Is the ruling automatically invalid, or does the aggrieved party have to then appeal to a higher court?
Bruce, That's exactly the point. USUALLY, the aggrieved party takes an appeal but since this "Judge" announces his ruling after the case has commenced trial before him, the State has no right to seek an appeal. It's a consequence of double jeopardy. Every New Mexican court has the ability to rule on strictly legal matters before trial. Then, if the State loses, jeopardy hasn't "attached", as we say, and the State may appeal. Sometimes New Mexican criminal defense attorneys will raise suppression issues only after the jury is sworn for the exact purpose of depriving the state of its appeal. I didn't do this myself because trial Judges aren't stupid. If you play fair, you'll get a more sympathetic hearing, I think. And since suppression is (as you know) often a matter of whom to believe, that sympathy can matter. Since the State can't appeal from this "Judge", they should seek a writ compelling him to hear the issue before trial at the very least. I would seek a writ requiring him to recuse himself in all DWI cases.
