Man who hit 11 year old with car in court for prob

[Swimmy]

Second Degree murder is also felony murder which is when someone, other than the criminals, dies during the commission of a serious felony, e.g. rape, robbery, burglary, arson, and a couple others that elude my memory at the moment. As long as you had the intent to commit the underlying crime, and someone dies on your watch you'd be guilty of murder second. That's why I think it should amended to include DWI as a felony.

People already know it's a bad thing to drink and drive. MADD, DARE, and SADD ingrain it into your heads from elementary school onward. You have no excuse not to have "learned" not to drink and drive.

[thelma]

Swimmy - I understand where you are coming from based on "intent" for making DWI convictions a Felony.

BUT - what about the person coming home from his going away party that is NOT a regular drinker. He pulls off onto the side of the road as he realizes he should not be driving. However, he forgets to take the keys out of the ignition.

While he is "sleeping it off", a State Trooper comes along to investigate why the car is pulled off on the side of the road and finds the Driver asleep, the smell of alcohol is in the car, and he notices the keys in the ignition - enough to wake up the Driver, give him a breatholizer test which he fails - and arrests him on DWI!!!!!!!

This is an actual case I had to deal with when I was working for an insurance company and was asked to provide this Driver with car insurance.

IMO, this particular case would NOT warrant a Felony. I do agree with you that there are many that do BUT where do you draw the line?

[froggy]

thelma said:

BUT - what about the person coming home from his going away party that is NOT a regular drinker. He pulls off onto the side of the road as he realizes he should not be driving. However, he forgets to take the keys out of the ignition.

While he is "sleeping it off", a State Trooper comes along to investigate why the car is pulled off on the side of the road and finds the Driver asleep, the smell of alcohol is in the car, and he notices the keys in the ignition - enough to wake up the Driver, give him a breatholizer test which he fails - and arrests him on DWI!!!!!!!

This is an actual case I had to deal with when I was working for an insurance company and was asked to provide this Driver with car insurance.

IMO, this particular case would NOT warrant a Felony. I do agree with you that there are many that do BUT where do you draw the line?

Yes, those are actual cases that happen. I know of some people in similar circumstances where charged like that. Somewhere the "driving" part of DWI is lost in interpretation. Apparently there must be some kind of assumption that a person in such situation "could" or "would" or "did" drive drunk. That is a part of the law which needs to be shored up, its not appropriate.

Just as you say, what if it were someone being responsible and sleeping it off in the back of a car, during a time like now with the engine running to keep warm. Under the law they could be charged with DWI, but yet didn't drive anywhere. I don't condone drunk driving, but I also don't condone a perversely loose interpretation of the law either. You're either driving or you are not, period.

[frankcor]

I'm not a lawyer, and I don't even play one on tv, but if someone is found sleeping in a car on the side of the road, isn't it reasonable to suspect or even be assured that at some point they were driving? I think that's how the law is frequently interpreted. The officer does not have to witness the actual driving, just have a reasonable suspicion?

Edit: sorry for being redundant, froggy, I repeated your assertion

[froggy]

Well, they should have to witness or have a witness that saw someone driving drunk. I know of a kid who was arrested for DWI while parked in front of a bar on Main St in Herkimer. He didn't drive anywhere because he was waiting for the owner of the truck to drive them both. Anyway, he was drunk and had the keys in the ignition while listening to the radio.

Its assinine to make some assumption without an actual crime or infraction being committed. Again I echo the same sentiment, its called DRIVING while intoxicated. That to me involves actually operating a motor vehicle on a roadway, not parked asleep inside.

that makes it a pre-emptive thing. Its like issuing me a ticket for having a dog on the premise that it MIGHT bite someone. What? Why not issue the guy up the street a speeding ticket since he owns a Corvette and MIGHT speed. Sheesh.

[thelma]

Froggy - I believe the reason a DWI arrest can be made is under the "assumption" that as long as the keys are in the ignition, the "drunk" driver is capable of driving the car away (again "assuming" he is still drunk).

I agree that if someone is sleeping in the car and NOT actually driving, the Police should give them a breatholizer test BEFORE they "assume" the person is still drunk. The DWI criteria needs to be modified.

[Swimmy]

No, the assumption is not based on the keys being in the ignition. The assumption is that if you are pulled off the side of the road, drunk, there is enough to make a reasonable inference that you drove there at some point and were drunk while you did so.

Froggy, the requirement you wish to see would mean that only direct evidence could convict someone of a dwi. If we were to hold that standard for every crime, our prisons would be virtually empty. So many people are convicted on circumstantial evidence. As long as there is enough circumstantial evidence to allow a reasonable inference the defendant was driving drunk, then the legal requirements are satisfied. You may not like it, but it's not much different than DNA evidence connecting a murderer to the murder victim. We can't exactly be requiring a witness to see the murder happen, unless you have some reliable way to communicate with a dead person and can get around the dead person's statute, which prohibits hearsay evidence from a dead person.

[thelma]

swimmy said:

No, the assumption is not based on the keys being in the ignition. The assumption is that if you are pulled off the side of the road, drunk, there is enough to make a reasonable inference that you drove there at some point and were drunk while you did so.
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If this is true, then why can't they arrest you for DWI if there are NO KEYS in the ignition?

[Swimmy]

I have read plenty of cases upholding such convictions. That aside, the reason is more of a public policy, rather than a pure legal one. To encourage people to not drive drunk, those who pull over to the side of the road without their keys in the ignition recognize they're too drunk to drive and pull over for safety. So rather than continue driving drunk and risk serious injury, pull over and take the keys out so that you are less likely to turn the car on and put it in gear. There have been cases where the person had the car on, and slept in the back seat and a conviction was overturned. But in that instance the car never moved from the parking lot and the inference that the defendant had at one point been driving drunk could not be made.

[thelma]

This gets too legalize for me. It is much simplier to just not drink if you are going to be driving your car afterwards.