The homeless guy in San Diego

blocksThere’s this homeless guy in San Diego who wrote an autobiographical story about himself and his legal troubles. The story is not long, but I found myself disliking him, then laughing, then liking the guy, then shaking my head; and finally smiling at the end. The guy seems dumb, smart, foolish, wise, selfish, lazy, sensitive and surprisingly well read (a list of qualities probably–on the whole–more positive than my own).
Here’s the link:

Trespassing Against Us or, Don’t Water The Homeless

Child Endangerment & DWI: Double Jeopardy?

DWISection 568.050 makes it a separate crime (child endangerment) to commit a DWI with a child in the car. The new Senate Bill 216 would also add driving with any level of controlled substance (or its metabolite) in the body to create a new way to commit child endangerment. Both of these ways to commit child endangerment create a problem when combined with a DWI.

Police & prosecutors are known to file DWI charges AND Child endangerment charges together for the same incident, if there is a child in the car. But that’s an illegal double-dip. I can’t see this practice continuing very long before the court of appeals overturns a conviction (that is, if there isn’t one in the works right now!).

Simply, a conviction on both charges together would amount to double jeopardy.The reason is that DWI is a lesser included offense of the Child Endangerment charge; i.e., the elements of the DWI charge are contained totally within the Child Endangerment charge. That’s a big no-no which smart defense attorneys will prevent and ethical prosecutors will not file in the first place.

All things considered, I’d say Missouri’s DWI Child endangerment law is pretty useless. If prosecutors can’t file Child Endangerment along with the DWI charge, then they must choose between the two. In that case they will certainly choose the DWI charge because the punishment ends up being worse for the defendant. With a DWI, he not only has criminal punishment, but he must deal with:

  • points on his driver’s license
  • increased punishment for repeat offenses
  • conviction can be later used to charge a higher level DWI
  • odd stuff like insurance rate increases, job loss, etc.

If the legislature wants to make DWI child endangerment stick they will have to make it a type of aggravated DWI with ALL the DWI penalties and consequences PLUS something more for having Junior along for the ride.

Proposed Missouri Child Endangerment Law

Marijuana plant

Missouri Senate Bill No. 216, filed this month, also creates a new crime of child endangerment :

568.050. 1. A person commits the crime of endangering the welfare of a child in the second degree if:
. . . .
(5) He or she operates a vehicle in violation of . . . section 577.022, RSMo, while a child less than seventeen years old is present in the vehicle.
. . . .
3. Endangering the welfare of a child in the second degree is a class A misdemeanor . . .

BlocksSection 577.022 is the proposed new crime of driving with drugs inside you. So if you have any amount of controlled substance (or its metabolites) in your body, it would be a crime to drive a car with a child aboard.

My original post on this bill noted that the new law would pretty well obsolete the driver’s licenses of marijuana smokers. I said “get a bike.” But where do you stash a couple car seats on a bike? (Actually, I’ll bet some entrepreneur has this worked out already.)

I should note that child endangerment for driving drunk with a child in the car was already on the books. Truth is, however, that neither the Missouri DWI child endangerment law, nor this proposed one, are likely to be of ANY use to law enforcement.

But let’s save that for the next post.

Message to marijuana smokers: Get a bike.

marijuanaIn Missouri, the DWI law makes it a crime to drive under the influence of alcohol or drugs. You have to be driving in an impaired condition to be convicted. Or at least have a blood alcohol level of .08%

Prosecution for drug-related DWI is a mess for police and prosecutors because there are no standards for deciding at what level a particular illegal drug will cause impairment. Toxicologists disagree on specific levels that could be used as evidence of impairment, so there is no “per se” illegal level for drugs comparable to the .08% standard used for alcohol.

Missouri Senate Bill No. 216 was filed on January 2 this year by Senator Jason Crowell to address the problem:

577.022.1. A person commits the crime of driving with any controlled substance in the body if such person operates a motor vehicle when there is any amount of a controlled substance or its metabolite present in such person, as measured in the person’s blood or urine.
. . . .
2. “Controlled substance” means a drug, substance, or immediate precursor in Schedules I through V listed in section 195.017, RSMo. (the crime will not include drugs prescribed by a doctor)

The key point in the law is that it has only a philosophical connection to driving while impaired. A driver may have smoked marijuana a week before (and be perfectly sober today), but under this law he cannot operate a motor vehicle because he will likely test positive–not for THC–but for the non-impairing metabolite of THC (the metabolite being what THC becomes as it’s broken down in the body). The same goes for other drugs. And most of the blood testing that is done in Missouri labs is not to detect the drugs, but to detect the drug metabolites.

This bill is a lot like the zero alcohol tolerance law for teens. It doesn’t pretend to measure fitness to drive. It simply says drugs are illegal and if you take drugs in any amount you can’t get behind the wheel anytime soon. If you use marijuana once a week, then get a bicycle, because you will never drive again.

The ONE thing that could temper the harshest effects of this law is that the police officer still would have to have probable cause to believe that you were driving with drugs or metabolites in your system before they could ask you to take the test. Acting intoxicated without smelling of alcohol would be enough. But if you were perfectly sober and admitted you had smoked marijuana yesterday, well . . . that would be enough too.

Drunkest driver?

WhiskeyI appreciate the comment from Tom Osborne (former Audrain County PA) about my post on the fastest speeding ticket. Tom signed that ticket and noted that the motorcycle had a passenger at the time. So here is one more from Tom’s watch. My nominee for drunkest driver. This one is from 1989. The trooper is the same Trooper Buttram from the speeding ticket. The sheriff is still Stuart Miller and I believe that the chemist is still with the highway patrol. Maybe Tom will remember the circumstances.

I remember from high school some chart showing “coma” and “near death” somewhere around a blood alcohol concentration of .35% or .40%. Click here for: Drunkest driver

Probation & Parole must have a GREAT union!

IconicI was making a summary of Missouri laws related to drinking and driving when I came across one of those peculiar laws that always makes me scratch my head and wonder how THAT got there.

Missouri law makes it a class C felony to negligently cause physical injury to another person while driving drunk. That means that if an intoxicated driver runs you or me down while we are standing beside the road, the punishment is up to 7 years in prison.

Everybody knows there are certain criminal laws that have a heavier punishment simply because of the status of the victim. So if you push some guy down (without actually hurting him) you could get up to 15 days in jail for that assault. But if the victim is a police officer or spouse or girlfriend, you get a heavier punishment and can be sentenced to up to one year in jail.

I understand the reasoning in these cases because domestic violence is a grave societal problem and because police officers are so often confronted with physical situations, that the legislature wants to strongly discourage even minor physical aggression.

Now back to the drunk driver law: it states that IF the injury is to a law enforcement officer, emergency personnel, or a probation and parole officer, the punishment jumps from 7 years up to a possible 15 years in prison.

Car at nightOnce again I understand the police and emergency personnel exception. They are often in harm’s way on–or next to–the highway, at night, when the bars close down. It’s a special law for a special problem. But what is this business with the probation and parole officers? Is this a problem? I don’t get it.

Move over or slow down? Don’t bet on it.

Missouri law (section 304.022.2) requires that drivers–on roads with two or more lanes in each direction–upon approaching a stopped emergency vehicle with flashing lights shall move over into a lane away from the emergency vehicle. The exception is where changing lanes is unsafe or impossible; then the driver must slow down.

This is the law as written and as enforced by the Missouri Highway patrol. So if you can move over, but you don’t, then you get a ticket. Slowing down is not an option–IF you could have moved over.

Defense attorneys, however, are challenging those tickets because of these brilliantly executed signs which have been erected on our state highways:
.
Move over

Imagine the driver, upon being ticketed for not moving over, complaining, “But I slowed down!”

It’s true, ignorance of the law is no excuse, but it’s a bit of a dirty trick to get bad legal advice from the highway department (I presume) and then a ticket from the highway patrol. Somebody goofed.