March 10, 2014 |
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"However, Branson's office could only file drunken driving charges against Kuszmaul because of a Kansas Supreme Court rule requiring additional evidence of reckless behavior in order to file battery charges."
I don't understand why the fact that they injured someone doesn't qualify of evidence of reckless driving. What more evidence do you need?
Maybe you should ask the courts or the lawmakers that question?? They are the ones making the rules.
You need evidence of "recklessness". As a driver, merely striking and injuring someone does not inherently create recklessness. A legally compliant motorist that strikes and injures a child running from behind a parked car is not reckless. Apparently similar conduct while DUI does not constitute reckless behavior in KS.
I haven't read the subject opinion but recklessness usually requires a finding of wanton disregard or indifference to consequences. Apparently the KS SC has ruled that merely injuring a person while DUI does not constitute reckless behavior in and of itself. Under the current laws there must be additional circumstances or conditions above and beyond the DUI and the injury in order to establish recklessness and thus, battery.
how about irans finger removal machine>>??
just an idea, but it would be difficult to thumb a ride home
Ok... Let's lock everyone up, pay more in taxes to house them, feed them, provide medical care and prescriptions!!! Genius!! Then after you run out of room you have to pay millions for a new facility, pay more for other jails to house your inmates(farming out), and then you can complain about that for years!! Most inmates can't pay to be in jail so then what??? If you give them work release they still have court costs, fines, and in some cases restitution to pay before anything else... So when you figure out all of those little issues feel free to complain about people being put on probation for first time offences and other small crimes...
Apparently you missed the "first time offenders, small crimes" part of it... Glad you went with it and became all dramatic about it... Again, did you say anything to provide the money for any of this?? First time drunk driver that got pulled over should be locked up??? A bar fight where no one was really hurt?? Writing bad checks?? Possession of pot?? Theft?? All of these on first and sometimes second times are worthy of probation... People here complain about paying the cops you have!!! Every case is different... Not every battery is aggravated, and not every kid with a dui is horrible... It is a case by case basis and to save taxpayers money a lot of people are put on probation and/or released early... I know with your experience complaining without solutions on here that you will never shut up... So I only ask that you have a plan before spewing all of the negative crap you say everyday... Show us how you will pay for things, an alternative plan, and maybe a common sence solution versus your opinion everyday...
That's what he is doing!!! He is trying to change the law to bring up more charges!!! It is not his fault the state law is soft!!! He should be punished, unfortunately he cant be punished enough by the court in this case... He will pay an enormous amount of restitution and fines in this case... You can't complain and whine about him.being soft then complain when he fights to change a law to add charges!!! That's a bit hypocritical...
Well said, Reality Check79. I am often amazed that some folks on here think we need to be handing out death sentences for Class C Misdemeanors. (I am not talking about this case specifically)
Please give us all examples of people maimed and/or killed where the offender got off easy.... Hmmmmmm still waiting..... You forget the other kid was drunk, illegally parked, not in a seat belt, acting just as stupid as the driver of the other car!!!! I am sorry this kid was hurt as bad as he was however, he was just as drunk and riding with another drunk.... It was a horrible ACCIDENT!!!! that's it
Driving intoxicated at three times the legal limit as well as slamming into the guy with nary a skid mark sounds like pretty decent evidence of recklessness to me. Branson is too vain to have simply tried it, with the outside chance he may have lost the serious charge.
Now he is just making excuses for his cowardice.
The lack of skid marks actually sounds like evidence of extreme intoxication rather than recklessness to me. Having said that however, I am on board with the belief that a person operating a motor vehicle at that level of intoxication coupled with the pot usage is acting in a reckless manner; with or without skid marks.
Of course, driving while extremely intoxicated is reckless.
Seems obvious to most people, but the KS SC ain't most people, just ask the KS legislature ;-)
As noted above, I haven't read the opinion, so don't yet understand their rationale.
I read the case when this issue first came up and there was nothing mentioned that would preclude using the triple over the limit and the lack of any braking as aggravating factors. Branson should have at least given it a try. There was no harm in trying.
Not quite. They stood a chance of losing the agg battery, but not the DUI. All they got with the plea bargain was a DUI conviction. So they had absolutely nothing to lose by going to trail on both charges. Of course, a trial would have taken a effort on the prosecutor's part.
gotcha. Looks like we are on the same page.
How on earth isn't that legally considered reckless?
Why do Douglas County prosecutors play dishonest games by multiplying charges or counts against a defendant who in the true order of things may be the real victim and plaintiff( especially on behalf of the KU's white-collar criminal administration)? For example, initially for political reasons and the careerist self-interest of a prosecutor KU might dishonestly railroad one false charge against a disgruntled former worker into the criminal court system and then suddenly as a trial looms closer without presenting any legal argument they will multiply the charges to ten or something.
It's a complete game and just shows how crooked is the State of Kansas . After completely bedeviling for months someone who refuses to accept a diversion for accusations they are innocent of, the State will finally drop the charges but refuse to acknowledge they are actually the lying ones who deserve to be prosecuted. In fact, they usually demand silence as a condition when charges are dropped-- upon threat of further harassment by the criminal injustice system.
Behavior like this suggests the State abuses the options they already have to charge defendants and do not deserve any more.
While I'm ALL behind stiffer charges for drunk driving there are things that aren't discussed.
1.) The car Liston was entering was illegally in the lane stopped so he could get in.
2.) Liston had also been drinking.
3.) His father is or was a policeman down in the Wichita area - why did Branson decide to do something when it's a policeman's child instead of any person? What about the women in the accident on Maine street - did Branson include that accident in his testimony. That guy had been arrested how many times for OUI - at least three? One woman was in the hospital a long time and is still going through physical therapy.
Why do repeat offenders keep getting slapped on the hand until they kill someone - then they can be charged with vehicular manslaughter. Let's get some punishment that makes an impact!
What specific constitutional rights of yours got stepped on here?
Sorry dude - the LJW can regulate speech on its own message board.
Branson appears to be bent on job security and legal bullying. The more the Prosecution can charge, the tougher they look and more they appear to work.
Alcohol is simply a poster child for revenue and punishiment.
A mistake in judgement is a mistake in judgement. Regardless if someone was scratched, maimed or killed. Distracted driving in ANY form; phone, kids, domestic conversation is no different! Elderly that are past competent vision and reaction levels are worse since theirs is not a temporary or spontaneous condition. Will any of these ever be addressed? NO.
Just because a victim, survivor, prosecutor or any other party has an axe to grind does not change the fact, there was no intent! "Presumed intent" is just legal B.S."
Laws dont need to be tougher, people need to make better decisions and be more forgiving. People make mistakes. Live life. Just because some people try to hide in rubber rooms does not mean others should be subjected to concrete rooms.
There are serious distinctions to be made between the things you mention.
Driving while 3x the legal limit for alcohol is inherently reckless, I'd say, and we don't need to define intent at all to determine that.
What is the legal limit for "pot', HK? Didn't know that was specified anywhere. Merely having it in your blood system doesn't make it "over the legal limit" if the standard is to determine if it affects your judgment.
HK, that is so wrong. Please, tell me you graduated from correspondence law school in between hitting homers.
Since pot is illegal, there's no such thing as having a certain amount of pot in one's system and being within the "legal limit" for it.
Once you ingest marijuana you no longer intentionally posses it. If marijuana is in your system, there is no test which will indicate at what level you are unable to operate a vehicle. Rather, an officer must observe you that were not capable of operating a vehicle. It is a pipe dream in your mind that "intent to possess" is "intent to drive under the influence".
And, don't ever, ever accuse me of smoking grass or tobacco! Not factual and I don't joke on that issue. I've probably lived in this State longer than you and have learned something, as opposed to yourself. I was a prosecutor many years ago, so I've dealt with the questions you obviously can't comprehend.
Or, Branson could utilize that passion to publicly acknowledge his belief he could not prosecute under the current status of Kansas laws and ask lawmakers to amend those laws so future situations could be addressed more appropriately.
BTW, intent IS a factor considered by courts of law. For example, there are both negligent and intentional torts.
From the criminal law perspective, intent looks at the state of mind of the individual at the time the crime is committed. There are also two classes of intent; "general" and "specific". General intent exists in all crimes, but specific intent is only a requisite element of certain crimes such as assault with the intent to do great bodily harm or assault with the intent to rape.
Well of course they wouldn't admit it was premeditated. By definition, an accident cannot be intentional or premeditated. Besides, if the outcome was premeditated, it wouldn't exactly be in one's best interests to state they got blasted then drove looking to run someone down en route. You could argue that an injury accident is a likely and forseeable outcome arising from DUI and thus, is an inherently reckless act that should be subject to prosecution for battery, but I don't believe that will fly under KS law today.
I too, would like to have seen other charges pursued in a situation like this. Nevertheless, Branson doesn't believe he could win the case on these facts. If he doesn't have a good faith belief he can successfully pursue such charges because of a SC ruling, he shouldn't use his office as an opportunity to hoist trial balloons. I can just imagine the folks waiting to ridicule Branson if he prosecuted someone in apparent disregard of a SC ruling, only to get the verdict reversed and remanded on that basis. Doing so arguably has the potential for an allegation of malicious prosecution. So do you call Branson "gutless" for not seeking to prosecute for battery or "brainless" for seeking a conviction likely to be overturned on appeal?
With no intention to harm, yes.
I want to add "pets" to the above list of distractions.
Also, the "legal limit" is completely arbitrary. This mark changes as MADD's political influence grows to push ever lower on their agenda of prohibition and revenge.
Much time and money is put into alcohol testing procedures and even entire processing trucks. Lets take the basics behind this; safe judgement and reaction time and test that in a simulator. Pass/fail for all.
I don't believe you.
Also, the law doesn't require intent to harm in order to judge people for their actions, when those actions harm others.
And, again, for the nth time, this guy was 3x the legal limit - it's not like he had a couple of glasses of wine with dinner.
Given what we all know (or should know) about alcohol use and impaired reactions, anybody who is that drunk and drives is knowingly putting themselves and others at risk.
Gandalf, at least you see that there differences between intentional criminal actions, reckless criminal actions and accidents.
The obvious difference between walking while drunk and driving while drunk is that one of them involves operating a 2 ton motor vehicle capable of injuring/killing people.
The guy that had a couple of drinks had no intension of taking a human life, but it is just fine for that woman to walk into an abortion clinic and have her baby killed.... go figure.
Everyone gets lost in semantics from time to time. The word reckless.
Well yes it is, stupid, and absolutely reckless to drive while intoxicated.
But proving someone was "being reckless" is a much different concept.
Was the person who obviously cannot control their motor skills due to alcohol still able to think completely clearly? I see many postings above talking about "he made a choice" or he "decided" to drive drunk. Not that I disagree, I hate drunk drivers. Just the fact that the person was driving drunk is evidence to the argument that he/she was not "being reckless" in a court setting. "If i was sober, i would not have driven drunk." First, one must be proven to be in control of their thoughts to then be proven reckless.
Not at all true.
If you look up the definition of reckless, it has nothing to do with your comments about being in control of one's thoughts.
It has to do with acting in a certain way.
So how would you propose to rectify that?
One thing that seems to have been overlooked in the slamming of Branson---and I have no opinion of him one way or the other---is that even if you think a person is guilty of a certain crime, if you don't have the evidence to convict, it may be the sensible thing to not press charges or to plea bargain rather than spend time and money on a trial that will probably fail to convict.
Also, what you think the law should be doesn't have anything to do with what the law is or how it is interpreted.
Since we don't have the full transcript here of what Branson said, we don't know that this incident was the only one he mentioned or why he choose this particular one if it was the only one. It has received more publicity than many others.
Whatever the back story, I support much more stringent laws regarding drunk driving. Of course, the drunk person usually doesn't set out to kill or injure someone, but the person is still just as dead or injured as if they did.
In this particular case, my understanding of the law is that the driver who rear-ends another car, even in a case where the car should probably not be stopped, is still the guilty party. If that is the case, I would think that would be cause for liability---any law authority have an opinion on that?
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