Drunk Driving vs Cell Phones

July 20, 2009

A lot of things impair a driver in his driving.  Only a few are against the law.  Imbibation of alcohol to a certain measured level is one.  Ingesting many listed drugs to any uncertainly-measured level is another.  Reading a book, texting, or talking on a cell phone are not unlawful -per se- unlawful activities to carry on while driving.

What’s the difference?    Any criminal defense lawyer can tell you:  Since Driving Under the Influence of Alcohol is a misdemeanor crime, and Manslaughter First Degree is, among other things, a death caused while in the commission of a misdemeanor, a driver who, while Driving Under the Influence of Alcohol, causes an accident resulting in a death, must answer to a charge of Manslaughter First Degree, punishable up to life imprisonment.  Contrast that with a driver who causes a death by simple negligence, i.e., not in the commission of a misdemeanor, faces only a charge of Negligent Homicide, punishable up to one year in the County Jail.

Should cell-phone users face the same penalty?  Certainly not now, since the legislature has enacted no such a law.  Should the legislature treat the use of cell phones the same as alcohol or drugs?

Most drivers think they are not affected by their own use of cell phones, but these same drivers believe other drivers are definitely distracted by the use of cell phones while driving.  Research shows drivers all overestimate their own ability to dominate the distractions of cell phone use while driving.  Five states and the District of Columbia require drivers to use hands-free devices to talk on a cellphone, but this could only cover up the real problem.

A survey of 1,506 people by Nationwide Mutual Insurance, 81 % of cellphone owners acknowledged they talk on phones while driving with 98% who considered themselves safe drivers.  However, 45 % of them said they had been hit or nearly hit by a driver talking on a phone.  “When we ask people to identify the most dangerous distraction on the highway today, about half identify cellphones,”said Bill Windsor , associate vice president for safety at Nationwide.  “But they think others are dangerous, not themselves.”

Extensive research shows drivers using phones are four times as likely to cause a wreck as other drivers, the same likelihood as drivers with a blood alcohol level of 0.08% Blood Alcohol Content (right on the number of the illegal limit for alcohol consumption).   Moreover, hands-free devices do not lessen the risk and may even worsen the risk by suggesting it is no longer present.

A Harvard study in 2003 estimated that cellphone distractions caused 2,600 traffic deaths annually and caused 330,000 accidents with moderate or sever injuries.   Nevertheless, state legislatures, while after introducing 170 bills last year to address distracted driving passed fewer than 10 such bills.  Oklahoma is one of the states who has rejected any effort to limit distracted driving.  Legislators from Oklahoma themselves use cellphones while driving, some “from when I leave the Capitol to when I get home, and that’s a two-hour driver,” said Tad Jones, the majority floor leader of the Oklahoma House.  He helped block legislation restricting cellphone use while driving.

The cellphone industry argues that from 1997 to 2007, the number of reported accidents fell to 6 million from 6.7 million.  “There are more drivers, more talking drivers, “ said John Walls, spokesman for the Cellular Telecommunications and Internet Association. “If it’s so risky, then logically one would think there would be more accidents.”  David Strayer, a psychology professor at the University of Utah and a leading researcher in the field of distracted driving, counters: “We’ve spent billions on air bags, antilock brakes, better steering, safer cards and roads, but the number of fatalities has remained constant.  Our return on investment for those billions is zero,” he said.  “And that’s because we’re using devises in our cars.”

Better data could tell us more.  But 21 states do not even include a box on accident forms for accident investigators to mark electronic devices as a cause.  Moreover, such forms require the driver to confess his own cellphone use in the accident. This is not the most forthcoming method but a better one is lacking at the present time.

Professor Strayer has spent a decade studying driver distraction.  He uses a driving simulator, operated by a volunteer.  The task is to follow closely a white car that often slows abruptly.  Meanwhile, a voice on speaker talks to the driver, asking questions like, “When you do a pull-up, do your palms face toward you? and”Can you touch your elbow to your ear?”  Little problem usually, the driver sometimes took her hands from the wheel when trying to answer a question like, “True of false: A peanut butter jar opens clockwise,” She was so focused on her call that she seemed to miss surprises, like a body by the side of the road.

Texting while driving was worse.  The driver soon slammed into the rear of virtual car in front of her.  (Fourteen states ban texting while driving).   Strayer’s research uses a small camera to track eye movements, and it shows texting drivers regularly focus on their screens for more than 5 seconds at a time.

This research shows multitasking drivers are four times as likely to crash as those focused on their driving, and studies in Canada and Australia agree.  The highway safety administration estimates that drivers using a hand-held device are at 1.3 times greater risk of a crash or near-crash.  Scientists, such as Steve Yantis, professor psychological and brain sciences at Johns Hopkins University, note that the brain has trouble assessing separate streams of information, even if one is visual and the other aural.

Cellphones are the most common cause of driver distraction.  Conversation with fellow passengers do not present the same danger.  Scientists say listening on the phone requires more than listening.  The words bring up images in the mind’s eye. That is not a problem, but when a car swerves unexpectedly or a pedestrian comes near, the brain lacks the processing power to react in time.

Title 21. Crimes and Punishments
Chapter 24 – Homicide
Manslaughter
Section 711 – First Degree Manslaughter
Cite as: O.S. §, __ __When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.

Title 21. Crimes and Punishments
Chapter 24 – Homicide
Section 701.8 – Second Degree Murder
Cite as: O.S. §, __ __

Homicide is murder in the second degree in the following cases:

1. When perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; or

2. When perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in Section 1, subsection B, of this act.

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Criminal Legal Cases and Other Categories as Reported by Judicial business of the United States for 2008

April 9, 2009

The Statistics Division, Office of Judges Programs, Administrative Office of the U.S. Courts has published its annual report.  The report is 431 pages and covers all U.S. Courts of Appeals, U.S. District Courts, and U.S. Bankruptcy Courts.

Filings of cases in the U.S. Courts of Appeals, were up 4.6 %, in the U.S. District Courts up 3.8 % for civil cases and 3.6% for criminal cases, and in the U.S. Bankruptcy Courts up 30.2% from the year 2007.  Terminated cases in the three categories were similar to the increases in filings, except that they were 12.8 %.in Bankruptcy courts.

The case load for U.S. Courts of Appeals remained approximately at its same level since 2004.  Cases handled per panel were 1,068, almost the same as in 2007, and very close to the same level as in the years back to 2004.  Courts of Appeals have about 53,071 cases pending, about the same numbers as past years, and this despite terminating 59,096 cases in 2008, a fairly average number.

These appeals came from the District Courts in criminal cases (13,667 cases, up 3.8 %) and civil (31,454, up 3.8 %, which includes prisoner petitions of 16,853, up 8.9%), Bankruptcy Courts (773, down 8.5%), and Administrative Agencies (11,583 cases, up 11.6 %)

The U.S. District Courts carried 394 cases per judgeship (cases per authorized judge), a 3.7% increase over 2007.  The District Courts handled 267,257 cases, which included 54,786 prisoner petitions and 68,171 personal injury cases. The District Courts terminated 234,571 for the year 2008 (a decrease of 2.1%) and left pending 298,129 cases (a 12.3 % increase over 2007).

These cases in District Court are further broken down into those with the United States as plaintiff (9,649 cases, a 0.9% over 2007), those with the United States as defendant (34,515 cases, down 3.9% from 2007), those with a federal question (134,582, down 3.5%), and diversity of citizenship (88,457, up 21.8 %).

Cases with the United States as plaintiff include immigration cases, and that category increased in 2008 by 27. % to 21,313 cases with the a 26% increase in the number of immigrant defendants to 22,658.  The charge of improper reentry counted for 73 percent of all immigration cases and 69% of all immigrant defendants.  Seventy-two percent of all immigration cases were filed in the five southwestern border federal court districts: the District of Arizona, Southern District of California, District of New Mexico, Southern District of Texas and Western District of Texas.

Overall, therefore, it is evident that while significant increases of litigation for bankruptcies and immigration occurred in 2008, other areas such as criminal cases had only a slight increase. Consequently, the constant indications in the news media that we’re experiencing a skyrocketing increase in criminal cases is not founded in fact.


Sex Crimes and Sex Offender Registration Requirements in 2009

April 5, 2009

When the federal government stepped into the sex registration business, it doubled the number of Oklahoma’s sex offenders who must register for life. In 2007, Oklahoma adopted a classification system to comply with the federal Adam Walsh Act., more formally known as the Adam Walsh Child Protection and Safety Act. Adam Walsh, of course, is the murdered son of John Walsh, creator of the television show, “America’s Most Wanted.” Since his young son was kidnaped and murdered in 1981, John Walsh has been a leading advocate to increase punishment and monitoring of sex offenders. He helped found the National Center for Missing and Exploited Children.

In 2007, Oklahoma adopted a new three-tier system of registration for those living in Oklahoma who have been convicted of a sex offense. The intent of the system is to prevent any re-offending by those registered. Failure to register is punishable by prison time.

But critics point out that the registration system assumes every person is the worst possible offender. They say the system uses a sledge hammer to crush a flea. Oklahoma has about 6,000 registered sex offenders. Of these, 5,026 are required for life. Another 228 of them are required to register only for 25 years, and in the lowest tier, 840 registrants in tier one are required to register for only 15 years. Those required to register for life have been classified as aggravated or habitual.

This three-tier system did not exist before 2007. The new law required the state to evaluate and reevaluate every sex offender for placement in the new classification system. While only 40% of the total registration population used to be assigned to the aggravated or habitual category, now more than 80% are in that category, earning the requirement for lifetime registration.

The classifications are determined by a committee comprised of prosecutors, counselors and “victim advocates.”. It is rumored that no one wants to be the one on the committee who appears “soft’ on classifications, perhaps out of fear that the committee might classify someone in a lower category and then that person re-offend. It’s always safer to classify everyone in the maximum category, especially when the only ones who might complain are sex offenders, no big voting block.

However, Randy Lopp, head of the Oklahoma Coalition for Sex Offender Management, says offenders should be classified according to their risk level rather than their offense of record, as they are now. He says “accepted research” in the field indicates that seventy-five percent of sexual offenders are not re-arrested in a fifteen-year period.

An even more understanding approach is offered by Richard Kishur, Ph.D., an Oklahoma City counselor who specializes in treating sex offenders. He suggests that ideally sex offenders should be evaluated before they are sentenced to determine if they are a risk to re-offend. This assumes that such evaluation can be accurately done, and Dr. Kishur and other experts would say it can be. This approach would allow important resources to be aimed at those few individuals who are a significant risk to society, persons from whom society needs protection, while allowing other sex offenders to live their lives without such maximum, unnecessary intrusion as now required by life registration.

For instance, doesn’t it seem overly harsh to require lifetime registration for an individual who, when somewhat inebriated, urinated against the side of his truck, while being seen by some women? When someone is required to register as a sex offender, they are governed by many restrictions, such as where he can live. Furthermore, there are reports of family members of the convicted sex offender having authorities periodically show up at their homes, barge into the home without providing any information identifying themselves, and proceed to look through the entire home to make sure the “sex offender” is not living there (in a restricted neighborhood). This kind of situation where even relatives are harassed points out the potential dangers of a system that assigns never ending penalties for minor offenses.

For all of these reasons, even a relatively minor sex charge can cause severe repercussions for an individual and therefore, it’s critical someone charged with a sex offense seek an experienced and competent criminal defense lawyer. My site at http://www.oklahomacriminallawoffice.com provides advice on how to choose the right criminal attorney to protect your rights and I encourage you to visit it for more information on this important consideration.


DUI or Drunk Driving Charges, Can You Afford the Cost?

March 25, 2009

Recently noted in news accounts are the costs of a charge of Driving Under the Influence of Alcohol or Drugs.  Minimum court costs are $715.50 in Oklahoma County.  A “typical attorney’s fee” for misdemeanor for a guilty plea is $3,000 to $5,000.  That is for a first-time offender.  Other fees included a drug/alcohol assessment mandated by state law, the costs of driving school and/or substance abuse treatment and/or counseling, all as monitored by probation services, usually by the District Attorney of the county in which the prosecution takes place.

Lurking behind all the court and attorney costs are the effects on vehicle insurance.  These increases are hard to quantify, they vary so much.  These costs can skyrocket, according to John Wiscaver, governmental affairs director for State Farm Insurance in Oklahoma.  He says many insurance companies decline to renew the policy of a driver convicted of Driving Under the Influence.

Then there’s the revocation/suspension of the driver’s license.  In Oklahoma, a conviction for Driving or Being in Actual Physical Control of a Motor Vehicle While Under the Influence of Alcohol results automatically in revocation of the driver’s license, although a modified license can sometimes be obtained.  A modified license enables the driver to drive so long as the vehicle is equipped with a Safety Interlock or similar device. This requires the operator to give (breath) a non-alcohol sample to the machine before the vehicle will start and then at random times while the journey is underway.  These typically costs about $150 for installation and then $75.00 per month, usually for six months.  These have gotten more sophisticated now, so that the machine  even takes a photo of the person giving the non-alcohol breath sample to insure it is the licensee.   Obviously, this latter measure was taken from experience to bring the cat-and-mouse game up to give advantage to the machine manufacturer.

Except for the court costs, all costs mentioned above can increase dramatically when the criminal charge includes  allegations of injury to property, leaving the scene of an accident or injury or death of a person.

The costs described are not my numbers. They came from an article in the local newspaper. However, while my flat fee for some circumstances involving a first time DUI offense might be less than the $3,000.00 minimum quoted, it would not be as low as just a few hundred dollars (as some people expect). Moreover, while it’s always possible to find a lawyer to handle a case for a lower fee, that may actually end up costing you more in terms of the outcome.

In fact, there are many pitfalls in choosing an attorney just based on price alone, such as getting a lawyer who is a high volume attorney that won’t spend much time on your case, or hiring a lawyer without much experience practicing as a criminal defense lawyer. These are dangerous scenarios for you if your case and future are important to you and your family. That’s why I recommend anyone facing a DUI charge to get my “Protect Your Freedom Kit” by requesting it at my website at http://www.oklahomacriminallawoffice.com/freedomkit.php


Criminal Defendants’ Rights to Speedy Trial

March 17, 2009

Locked up for 10 years, just waiting for her trial, she finally faced the jury, and the jury acquitted her.  But how could someone be kept that long without a trial in America?

Kathleen Hilton was charged in Lawrence Superior Court, Massachusetts, of setting a fire that killed five people.  She was diagnosed with mental retardation and was initially found incompetent to stand trial.  After some weeks of being observed at Taunton State Hospital, however, psychiatrists opined that she understood the charges against her and was able to assist her attorney in her defense.

The fire took place in 1999 in Lynn, Massachusetts.  Three children died and a fireman was injured in the fire.  Prosecutors argued that Ms. Hilton set the fire to kill her son’s former girlfriend because the woman would not let her son see his two children.  Her grandchildren lived there, and they survived.  However, other residents, Heriberto Feliciano, his wife, Sonia Hernandez, their two daughters, Sonia and Maria, and a niece, Glorimar Santiago were killed.

The case was delayed from trial by legal battles and rulings back and forth between he Superior Court and the Supreme Judicial Court.  The legal battles concerned the admissibility made by Ms. Hilton when she was arrested three days after the fire.  Allegedly she told police that she had struck a match and dropped it on the wooden porch, which she said she had soaked with flammable scented oil.  Police claimed she told them she watched the house erupt in flames and then walked home.

There was another statement at issue.  Following her arraignment, Ms. Hilton allegedly told a court officer escorting her to a holding cell, “I hope he forgives me.”  When asked what she was talking about, she allegedly said, “I hope my son forgives me.  I could have killed my grandchildren.”

Hilton’s court-appointed lawyer, Michael Natola, argued her statements were made in an attempt to protect her son, Charles Loayza, who was in a custody battle with his girlfriend, Krystina Sutherland, and had himself threatened to burn down her house.  Natola urged that Hilton made up her story because she believed her son, a prime suspect of setting the fire, would go to prison.   Her son had an alibi, however, and the police did not remain a suspect.

The right to a speedy trial is protected by the federal and state constitutions.

The United States Constitution provides in the VI Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Had Ms. Hilton’s lawyer demanded a speedy trial, she likely would have received an earlier trial.  However, it appears her own lawyer was wrangling with the courts for some rulings that her lawyer thought were important enough to wait for the trial.  Facing six counts of life sentence, the stakes were great.  So long as a person or her lawyer is part of the process causing the delay from trial, a person cannot blame the system.

Indeed, The Lawrence Superior Court Rules provided that murder cases take no more than a year from arraignment to trial.  That is speedy, considering all the evidence that must be assembled and disputed by the prosecution and defense and ruled upon by the court before beginning the trial before the jury.  The Constitution of the Commonwealth of Massachusetts, which predated that of the United States about nine years, does not specifically provide for “speedy trial”, but it has a rigorous provision for the Writ of Habeas Corpus, and historically this has been an effective  safeguard against prisoners languishing in jail.

Oklahoma’s Constitution provides:

Article 2 – Bill of Rights     § 20. Rights of accused in criminal cases.

In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed …”

In order to protect a defendant’s right to a speedy trial, it’s important he or she has an experienced and competent criminal defense lawyer so that issues can be dealt with effectively, and timely. There are a number of things to consider when choosing a criminal defense attorney, which is why I recommend anyone charged with a crime visit my website at http://www.oklahomacriminallawoffice.com to learn what to look for when making this critical decision.


Legal drugs kill more than illegal drugs

June 17, 2008

All the stereotypes about the cocaine trade in Florida do not get past the evidence. The Florida Medical Examiners Florida have determined from autopsies done in the year 2007 that legal prescription drugs kill three times the number of people as all illicit drugs combined.

The U.S. Drug Enforcement has done studies which found about seven million Americans are abusing prescription drugs. That figure is not certain. But that figure would be an increase of 80 % over the last six years, and it is more than the total of those abusing cocaine, heroin, hallucinogens, Ecstasy and inhalants.

The Florida report analyzed 168,900 deaths in Florida. Cocaine, heroin and all methamphetamines caused 989 deaths, while legal opioids (strong pain killers found in brand name drugs like Vicodin and OxyContin) caused 2,328 deaths. Drugs with benzodiazepine, mainly depressants like Valium and Xanax, led to 743 deaths. Alcohol was the most common, found in 4,179 of the bodies autopsied and ruled the cause of death in 466 of those autopsied. These alcohol deaths were fewer than cocaine (843), but more than methamphetamines (25) and marijuana (0).

The study also found that while the number of people who died with heroin in their bodies increased 14 percent to the total number of 110, deaths related to the opioid oxycodone increased 36 percent, to 1,253.
Because the State of Florida monitors drug-related deaths more closely than other states, it is difficult to compare these results with other states. Yet Florida has not kept pace with other states in the enforcement of illegal use of prescription medicines. Thirty-eight states have enacted laws that track prescription drugs with monitoring programs that track sales. The Florida legislature has repeatedly decided not to do this, apparently on the grounds of privacy of the patient.

Apparently the legislators of the State of Florida have observed that, even though government can always do a better job of saving us from ourselves, government should not intrude into this area. At least not yet.

There is no doubt that, if allowed to control our lives more extensively, the government could make us live longer. It would require us to eat more vegetables and less fat. Government would require us to take more exercise. The list could go on, government helping our lives by making out daily decisions. Yet a lot of people insist on making their own decisions. The Bill of Rights tended to say they should be allowed to do that, even if the government has studies that show it is bad for them.

There is something to be said for this. Can you imagine being arrested by police for using cold medicine without a doctors approval? Our justice system should not only protect us from harm but should also protect our rights. That’s one of the key purposes for lawyers….to be your advocate and your legal representation to make sure your rights and freedom are protected. Certainly anyone facing charges relating to illegal or prescription drugs should seek out the best legal help they can find, which is why I’ve included information on finding a criminal lawyer at my website at http://www.netlegalhelp.com Please go there and learn how to be a well informed client who will be equipped at making wise decisions.