Blood alcohol level and injustice

[KBCraig]

Wow. 

http://texarkanagazette.com/articles/2007/02/07/local_news/news/news01.txt

Judge sentences driver to probation: Man flagged down help after hitting pedestrian; victim?s family supports sentence
Wednesday, February 7, 2007 11:34 AM CST

By Lynn LaRowe
Texarkana Gazette

A Texas-side man who struck a pedestrian on North State Line Avenue in September pleaded guilty to negligent homicide Tuesday and received three years? probation.

Jonathan McAteer, 25, was traveling north near the 5000 block of State Line Avenue on Sept. 11 when Larry Wilson, 37, ran in front of his Chevy Blazer. Witnesses and the victim?s family say there was nothing McAteer could have done to avoid hitting Wilson, but McAteer was charged with a crime because Arkansas-side police determined he had a blood-alcohol level of .08.

Court documents show one witness had to ?brake hard? to avoid hitting Wilson just before she saw him run in front of McAteer?s vehicle. The witness told police there was no time for McAteer to react to the pedestrian.

If McAteer?s blood-alcohol level had been .07, he would not have been in violation of the law.

?He is very remorseful,? said Robert Witterstaetter, McAteer?s attorney. ?He?s a good kid caught up in a bad circumstance.?

Officers at the scene did not smell alcohol on McAteer but tested him as a matter of standard operating procedure when a death occurs, according to court documents.

Testing performed on the victim, who died shortly after being transported to a CHRISTUS St. Michael Health Care Center, revealed his blood-alcohol level was .28.

?We think this case calls for a probation recommendation,? said Miller County Deputy Prosecutor Charles Black. He told Circuit Judge Kirk Johnson the victim?s family was not opposed.

Johnson agreed and sentenced McAteer to probation.

?If the family is in agreement with the recommendation, I will follow it,? Johnson said.

Court documents show McAteer not only cooperated fully with police following the accident, but helped get medical personnel to the scene by flagging down other drivers.

[error]

Three years' probation? What the hell is wrong with them? Oh, yeah, I remember. They're following words on a goddamned piece of paper, as if they were the Word of God, without regard to justice or good sense.

[LiveFree]

Did he consent to be tested?  Or does merely driving "imply" consent in Arkansas?

[KBCraig]

Arkansas does have an implied consent law, where anyone refusing a BAC test will receive the same license suspension that they would if they were guilty of DWI.

I don't know if it only applies to suspected DWI, or to all drivers at all times. I also don't know the basis for taking the driver's blood in this case (might be standard in all fatal accidents), or if "implied consent" would apply.

I do know that an area district attorney (and former Arkansas circuit court judge) was involved in an accident last year while drinking. He ran from the scene, flagged down a driver and hitched a ride home. When the troopers came to his home, he played them. First he refused to come out (and they had no legal basis to force him), then said he was having chest pains. When the ambulance deposited him at the hospital, he refused treatment; so, no blood was drawn for the police to use. Then a couple of months ago they caught him driving drunk again (undeniably so).

But in this case in Texarkana... man. The guy wasn't drunk. Police never even suspected he'd had a drink. But because he had one hundredth of a point too much alcohol in his system according to a very arbitrary scale, he's now a convicted felon.

Even if he'd been as drunk as the dead guy, alcohol wasn't a factor. (At least not on the driver's part; sure looks like it was a factor on the part of the guy running across a busy 5-lane highway.)

[Spencer]

Frighteningly enough, most states have laws that provide that a person who blows under the "legal limit" of .08 (another federal mandate enforced at the cost of federal highway funds) can still be convicted of DWI / DUI.  He should not have pled guilty to anything.  It is entirely possible that his BAC was below the legal limit at the time of the accident, especially if he'd just left a bar / restaurant after finishing his last drink (the so-called rising BAC theory) -- your BAC can continue to rise for up to 1 1/2 hours after you consume your last alcoholic beverage.

Beware the MADD hatters and the feds.

[KBCraig]

He should not have pled guilty to anything.

Absolutely.

But, I don't know what the circumstances were. He could have found himself in the incompetent hands of a public defender (few here can afford a good lawyer). Coupled with his understandable remorse over the whole incident --despite his lack of fault-- he might have felt his best option was a guilty plea.

Kevin

[Spencer]

He should not have pled guilty to anything.

Absolutely.

But, I don't know what the circumstances were. He could have found himself in the incompetent hands of a public defender (few here can afford a good lawyer). Coupled with his understandable remorse over the whole incident --despite his lack of fault-- he might have felt his best option was a guilty plea.

Kevin

I resemble that remark (I'm a public defender).  Although I agree that a significant percentage of public defenders (or court-appointed private attorneys) don't fight hard enough for their clients, the majority of public defenders that I know are true believers and love to fight the gubmint. 

There's an equal percentage of "paid lawyers" that are all too happy to take your retainer and then plead your ass out at the first opportunity because then they have more time to gladhand other potential clients.

The first thing that I say to any client who comes into my office is, "I would be happy to take this case to trial."  Most clients are shocked that a public defender would want to add to his workload and fight for them.  For a large number of my clients with extensive criminal records, they have never had a jury trial.  Regardless of the result after trial, most are happy to have had someone stand up against the full power of the state (including the DA, the police, and the judge) and fight for them.