Issue 39

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Note from the Editor: Opinion8ed2 is trying something new… After six years of publishing with the same basic format, i.e., bundling 3 – 4 posts in a single issue, starting with this issue, each new blog will be devoted to a single post.  Rather than summarize what’s new, the “home” page will feature the latest post delivered right to your internet door.  Of course, you’ll still be able to access previous content from the menu bar to the right either by Issue number, content category, or by searching for the name or key word(s).  As always, I’m interested to get your feedback on the new format as well as the content through the comment box at the bottom.   

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Going Over a Fine Line in the Law

I just completed my sexennial civic duty by serving as a member of a six-person jury on a Suffolk County criminal court case.  After it was all over, the Judge kept us sequestered in the jury room for a short while to talk with us about the experience and ask us how we arrived at our decision.

He was genuinely enthused and upbeat about the judicial process – he had been both a prosecutor and defense attorney for most of his career and was now a relatively new trial judge.  It was just his third year of service following election to the Suffolk County District Court.  This was neither the bored, seen-it-all a thousand times, crotchety old geezer going through the motions nor the upstart, power-seeking, youthful politician with greater ambitions.  While I doubt I’d have much in common with this conservative, Republican judge outside the court, I give him full credit for conducting the proceedings in a fair and impartial manner.  He set a tone conducive to an objective examination of the case – relaxed yet serious.  For example, during the voir dire process in which potential jury members are interviewed, he asked us what we did for a living, what we liked to do in our spare time and whether we had any bumper stickers on our cars.

The Judge wanted to know why we rejected the State’s case for the primary charge of driving while intoxicated (DWI) and instead returned a guilty verdict for the lesser secondary charge of driving while ability impaired (DWAI).  “I’ll bet it was that the patrolman was unable to quantify how far over the double yellow line the defendant’s vehicle travelled…” he said.

In fact, this was the one issue over which our panel had serious concerns.  None of us doubted the veracity of the patrolmen’s observation of the defendant’s erratic driving at 1:30 in the morning on his return home from work as a restaurant manager or his suspicions that the defendant was driving under the influence of alcohol, which he smelled on his breath.  The cop reported the defendant admitted to having four to five beers and this was not disputed by the defense attorney.   Several jury members argued that after having consumed at least that much alcohol, he had no business operating a motor vehicle and were ready to convict on the primary charge of DWI.

But in the absence of a quantifiable blood alcohol level, the standard for conviction of driving while intoxicated rests on proving “substantial impairment,” while the lesser charge of driving while ability impaired requires only evidence of “any impairment.”  Despite observing five separate instances of crossing over the double yellow line, the arresting officer claimed he couldn’t remember or even estimate how far over the line the defendant’s vehicle crossed.  In our deliberations, some of us maintained that in this case “substantial impairment” would have been readily apparent and memorable, e.g., crossing over into oncoming traffic, significant swerving, driving too fast or too slow, or failure to respond promptly to being pulled over.  Instead, the officer followed the defendant for more than a mile before pulling him over and failed to demonstrate any of these indicators of substantial impairment. Although he reported the defendant failed the three field sobriety tests there was reasonable doubt about how they were conducted and/or how well the defendant performed.

After a review of the charges, clarification of the law, and a reminder that the defendant is presumed innocent unless the state proved beyond a reasonable doubt that he is guilty, the six of us were sequestered to deliberate and discuss.  Our discussion was thorough as we stepped through and evaluated all of the evidence. We agreed early on that there was little question that the defendant had been drinking and should not have been driving.  However, the extent of intoxication and whether the prosecutor proved substantial impairment was not as clear cut.  Finally, after considerable debate and going over the specifics of the testimony, we reached a unanimous decision to exonerate the defendant on the DWI charge but found him guilty of DWAI and the specific traffic violations that were not challenged.

It was not until conducting some background research while writing this piece did I realize just how important our decision could potentially be.  I submit for your consideration the story of a Suffolk County resident whose life has been shattered following a single DWI, where similarly to our case, thankfully no one was hurt.  Despite taking full responsibility for her actions, more than eight years of sobriety, and no issues with parole, she has been unable to start over.  Due to inconsistencies in the law and a for-profit rehabilitation system, convicted felons often have an easier time of rebuilding their lives than a one-time DWI offender.  No one (including this woman) is advocating for treating this serious crime lightly.  But if the purpose of our judicial system is to rehabilitate people so they can learn from their experience and once again become productive members of society, our criminal court and probation systems have a long way to go.  In her own words, here is her provocative and moving story:

https://m.youtube.com/watch?v=sxKfOWGEy6U&autoplay=1