jimmy,

My guess would be that if they could actually get the charges to stick. He may have "admitted" it at this time, but if charges come across he very well may ask for his admission to be stricken because he was "coerced" into the admission from officers.

Again, all hearsay and hopefully we find out what's going on behind the scenes soon.

GMAD321, I don't know the facts but what if the facts proved conclusively that Mr. Hernandez had only 1 or 2 beers over the course of a couple hours? Then it was not illegal for him to be driving even though it was illegal to flee the scene. What should be the "severe punishment?"

I for one am glad the DA is weighing these difficult issues before charging.

"To constitute depraved indifference, the defendant's conduct must be 'so wanton, so deficient in a moral sense of concern, so lacking in regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes a crime. Depraved indifference focuses on the risk created by the defendant’s conduct, not the injuries actually resulting.

In one case, People v Register, 60 NY2d 273, 469 NYS2d 599 (1983),while exploring the meaning of "depraved indifference recklessness" the Court of Appeals ruled that intoxication is not a defense or excuse to "depraved mind murder," although it may be to intentional murder. Its analysis started with distinguishing reckless manslaughter from the "depraved indifference recklessness" necessary for murder:

"to bring defendant’s conduct within the murder statute, the People were required to establish also that defendant’s act was imminently dangerous and presented a very high risk of death to others and that it was committed under circumstances which evidenced a wanton indifference to human life or a depravity of mind. . . . . The crime differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant’s conduct." 60 NY2d at 274."

The "Law & Order" junkies need to get a clue.

At this point, the state would be delaying arrest for procedural reasons; they don't want something in the future to come back and bite them. Right now, the DA is thinking "I don't want to screw this up." So, the state prepares as much of the investigation as they can before arresting anyone and starting the clock on "due process" and "right to a speedy trial." By not arresting him now, the state has more of an opportunity to build a stronger case with reduced risk of losing or getting a conviction overturned on appeal.

ModerateOne said: "what if the facts proved conclusively that Mr. Hernandez had only 1 or 2 beers over the course of a couple hours? Then it was not illegal for him to be driving even though it was illegal to flee the scene."

Absolutely wrong. Regardless of how many beers one has had, if you blow anything even below .08 on a PBT, if you are obviously impaired, you get a DUI. A BAC is only one factor.

YOUNGCSI, stick with TV, my friend.

Sundance,

Thanks for the copypasta, but New York State Appeals Court decisions are not the first things a Kansas state judge is going to look at in a criminal case, especially when the statutes defining crimes and punishments do not match up one-for-one. However, if there was no Kansas case law in pari materia to some argument that someone wanted to make, they could certainly cite the New York decision.

smitty, Step 1, remove tinfoil hat.

IANYL, TINLA.

Yeah brandy, I would think that the Leek family has a pretty good civil case against the suspects in this crime. However, I would guess that there isn't much to be had in the way of monetary gain by going after them. I doubt that Joel Hernandez, being 21, has many assets or much personal wealth to go after.

I do think that there's something seriously flawed with the DA's explanation of being "in the process of reviewing all the materials" is pretty weak. If someone is killed in Lawrence I would certainly hope that once the suspect is identified, they are swiftly arrested. I guess they have as long as the statute of limitations is for whichever crime they're considering charging him with, but somehow even with it being technically legal, this approach seems immoral and wrong. Get your thinking cap on and make a decision about what charges to file and get to the business of carrying out justice.

"50YearResident (Anonymous) says… Just the facts as I see them and not condemning or defending either party involved. It was written into the original story that Ms. Leek was riding in the East lane of Tenn St which would be the passing lane on the one way St ... Charges could be as little as, Leaving the scene of an accident. Additional charges are anyone's guess at this point."

You are not required to be in the right lane on a one way street within the city. The left lane is not a passing lane within the city.

As far as considering whether or not Ms. Leek was impaired, so far the police have only stated they do not believe she was.

Leaving the scene of an accident, thankfully, is not a "little" charge. Under these facts it is a severity level 9 person felony.

As for proving Mr. Hernandez was reckless... there are two witnesses from the car, there are witnesses from whatever bar they were at, there are their own statements they made on a publicly accessible site (facebook) regarding the hit and run as well as past posts glorifying drunk driving.

It saddens me that people try to make it not a big deal that three drunk people in a car ran over a girl and left her in the street to die. That dispite the horrific actions of those three that some people would try to blame the victim. Not having proper reflective gear on your bike is an asinine point to make when comparing liability to a drunk driver running someone over and leaving them to die.

To those who want to charge the passengers in the car........what did they do wrong? Morally should they have called the police to tell them what happened? Probably, yes. Should they have begged and pleaded with the driver to stop? Yes. But really, they were riding in a vehicle where the driver was in control, not them. Yes, let's "throw the book" at those dastardly people sitting in the car. I'm not saying they have no culpability, if not legal, at least moral, but get real.

Danimal, it's quite clear that you and similar posters have not the first clue about speedy trial issues. If someone is arrested, they must be charged with something and have bond set in a very short amount of time (I believe something like 48 hours, but I'm not positive off the top of my head). Then, if they remain in custody, they must be brought to trial within 90 days, absent defense continuances or delays. With the need for this further investigation to continue, it's not only acceptable for the DA/police to take their time and do this investigation right, it's THEIR JOB.

I realize internet message boards provide anonymity and the chance to vent/voice opinions, but at least try to make them somewhat informed opinions.

And in no way am I excusing what allegedly happened here.

md,

They could have chosen not to ride with a drunk driver, if they didn't want to be at the mercy of one. And, morally and legally, they absolutely should have called the police and reported this, not probably.

Eride,

From a "blame" point of view, you're probably right. But from a preventive point of view, bikers shouldn't ride at night without reflective lights.

And, isn't it in fact "contributory negligence" that she didn't have lights?

No, legally, they had no duty to report that I can come up with. That's just wrong to say. Morally? Yes. Unless/until you cite a statute that makes their failure to report the accident a crime, you are just simply proving my point that people post what they WANT to be facts as real, established facts. I can find no LEGAL duty that the passengers had to the victim. That's all that matters in whether they will be charged.

FYI, after a little research, the closest thing I can find is in KSA 8-1606. This is the only statute I've read that says ANYTHING about a passenger's duty to report an accident, and that duty only comes about if the driver is INCAPABLE of making a report of an accident. There is no indication that is the case here. Everything else deals with the DRIVER'S legal duty, not a passenger.

And yes, let's just say "don't ride with a drunk driver; if you do you are in trouble". Seriously?

monkey, if you have one drink and are under the .08, but you are "incapable of safely operating a motor vehicle" yes you CAN be charged with DUI. The per se .08 violation is not the only way that can happen. So, if you have one drink but you are all over the road, or if you HIT someone, it's a POSSIBLE charge.

And guess what, that's probably something the DA's office is considering. It's very fact specific, and it takes time to sort out. So, again, the DA's office is actually doing their job as they are supposed to in this case, at least from the info I can gather in the news.

"jafs (Anonymous) says… Eride,

From a “blame” point of view, you're probably right. But from a preventive point of view, bikers shouldn't ride at night without reflective lights.

And, isn't it in fact “contributory negligence” that she didn't have lights?"

My response:

1. We are discussing criminal liability, tortious liability is a different issue.

Even though it doesn't actually matter since this is criminal liability I will go ahead and correct it anyways...

1. Kansas uses comparative negligence, not contributory negligence and in fact, basically no jurisdictions use contributory negligence anymore.

In conclusion: Kansas' negligence standard is irrelevant because we are discussing criminal liability but even if we were discussing tortious liability your point would still be moot. Under Kansas' comparative negligence standard, as long as a person's percentage of fault is found to be less than that of the other parties that person will not be denied recovery on that issue (now the amount of recovery will be reduced dependent on the percent of fault attributed to the other party but they will still be allowed to recover that percentage of the damages). It is doubtful based off the facts we currently have available to us that any jury would find her as being equal or more at fault then a driver who was impaired, who hit her, and left her to die.

IF the passengers helped conceal the crime, I think there may be some legal liability. As for the person that owned the car, I can't answer that question. Civilly there is probably liability for that, but criminally, I can't say yes or no.

KSA 21-3205 says a person is criminally liable for a crime committed by another if such person intentionlly aids, abets, advises, hires, counsels or procures the other to commit the crime. So it appears that if they actively assisted the driver in hiding the crime they could be liable criminally, but if they didn't ACTIVELY do something to help facilitate the crime, they probably aren't liable.

Very quick research doesn't show any criminal statutes for loaning your car to someone who is intoxicated, but I didn't have a lot of time to do more than skim.

md,

Not reporting the crime is "actively assisting the driver" in hiding it, in my book.

My comment was a response to yours that they weren't in control of the car. While that is obviously true, anyone who rides in a car with a drunk driver is putting themselves at risk. If you don't want to be at the mercy of the drunk driving the car, then don't ride with them.

To ignore the obvious choice that passengers have to ride/not ride with a drunk driving is to paint an incomplete picture of the situation.

It's not like the driver abducted the passengers.

In general, I'm more interested in prevention than blame after the fact.

If the biker had had lights, this might not have happened.

If the driver weren't drunk, this probably wouldn't have happened.

If more people refused to ride in cars with drunk drivers, then fewer people would die in alcohol-related accidents.

Smitty-

Dolph had to use the space to throw in his two cents about how the Chancellor can do her job.

Thanks for the update!