Orange County Criminal Attorney Blog

A fatal bicycle accident in San Francisco, in which a cyclist allegedly struck and killed a pedestrian, has sparked vigorous debate about bicycling safety, but it has also demonstrated how participation in a public forum, in this case an online message board, can expose a person to criminal liability. The cyclist in question, Chris Bucchere, might face criminal charges, including vehicular manslaughter, regardless of comments possibly made by him online, but news reports indicate that law enforcement has taken these statements into consideration in their investigation.

On Thursday, March 29, 2012 a cyclist traveling south on Castro Street struck a man crossing the street at about 8:00 a.m. Both men were injured in the collision and were taken to San Francisco General Hospital. The pedestrian, 71 year-old Sutchi Hui, died in the hospital on Monday, April 2. Police originally described his injuries as life-threatening, and then said they expected him to survive later during the day of the accident. Authorities have not formally linked Hui's death with the injuries sustained in the collision, and the medical examiner has said it may be weeks before they release an official report.

Police did not release the name of the cyclist right away, but Bucchere was taken to the hospital at approximately the same time as Hui. On the afternoon of May 29, a post appeared, using Bucchere's name, on a Google group maintained by a local cycling group. The post, which was later removed from the site, described the accident in detail. It described heading down the steep hill on Castro Street at a high rate of speed and being unable to stop for a yellow light. The person writing the post said that the crosswalk quickly filled with people and, unable to stop, the person "laid it down" and "plowed through" the crowd in the "least-populated place" available. The writer then describes "seeing a RIVER of blood on the asphalt" belonging to the pedestrian, specifically identified as a 71 year-old male.

The writer said his (or her) bicycle helmet was broken in the crash, and dedicated the post to the broken helmet. The writer also concluded that the moral of the story was to always wear a helmet. This led to angry responses from other users on the message board, many suggesting that the moral should be to slow down during rush hour.

Continue reading "Fatal California Cycling Accident Could Bring Manslaughter Charges" »

Amy Senser, the defendant in a prosecution for vehicular homicide arising from a hit-and-run accident in Minneapolis, has made several challenges to the evidence and allegations made against her. She is charged in the August 23, 2011 death of Anousone Phanthavong, the chef at Minneapolis' Twin Cities Thai restaurant. Phanthavong was putting gas in his stalled vehicle on an exit ramp from Interstate 94 when a car struck and killed him. Senser is challenging witness' identifications that place her and her vehicle at the scene of the accident, as well as the sufficiency of certain legal elements of the prosecution's case. She claims that she prosecutors cannot prove an essential element: that she knew that day that she had hit somebody.

The Minnesota State Patrol announced, on the day after the accident, that they were looking for a 2009 Mercedes ML350 sport utility vehicle based on debris left at the scene. Senser's lawyer contacted the State Patrol and directed them to her house. They observed that her SUV had damage to the right front side, and that a substance resembling blood was visible on the hood. The Sensers refused to say who had been driving the car or cooperate further with police until police obtained a search warrant nine days later. Senser then admitted to driving the vehicle on August 23.

Prosecutors have built a circumstantial case against Senser. Eyewitnesses claimed seeing a Mercedes SUV driven by a blond woman in her 30's at the scene of the accident. Cell phone records also reportedly place Senser at the scene. Prosecutors claim circumstantial evidence indicates she had been drinking, but no sobriety tests were performed.

Senser faces two charges of criminal vehicular homicide. An essential element of this offense that the prosecution must prove beyond a reasonable doubt is that Senser knew she had hit a person with her car at the time of the accident. Senser denies that she knew this, believing she had hit a piece of construction equipment on the exit ramp. Without knowledge that she had hit someone, she did not have a legal duty to stop and render aid. Prosecutors have alleged that an eyewitness saw her return to the scene in the SUV about forty minutes after the accident, indicating that she was very aware of what had happened. Senser's lawyer has challenged the eyewitness testimony, since the eyewitness specifically mentioned a blond woman in her 30's. Senser is 45 years old and has brown hair.

Continue reading "Hit-and-Run Defendant Challenges Allegations That She Knew She Had Hit a Person" »

A jury in Chicago convicted police officer Richard Bolling of reckless homicide, aggravated DUI, and leaving the scene of an accident on January 18. He remains in custody while he waits for sentencing, which is scheduled for February. He faces a maximum of fifteen years' imprisonment, although he is also eligible for probation. Bolling admitted to drinking the night of the accident that killed 13 year-old Trenton Booker, but he has consistently denied that he was legally intoxicated. Prosecutors contended at trial that Bolling received preferential treatment from police during the investigation of the accident. This led to interesting questions regarding evidence of intoxication.

The accident occurred in the early morning of May 22, 2009. According to Bolling's own account of events, he had been drinking at a bar with friends. He says he only had three drinks, including a beer the bartender gave him as he was leaving. Bolling says he was driving his Dodge Charger at about 40 to 45 miles per hour when he saw a bicycle coming towards him. He says he swerved to avoid hitting the bicycle, which is when he hit Booker, who was also on a bicycle. He heard the car hit something and says he felt "stunned," but did not immediately realize he had hit a person. He drove away from the scene, but was pulled over several blocks away going the wrong way on a one-way street.

Bolling claimed in court that he was planning on returning to the scene before he was pulled over. He says that he agreed to do a field sobriety test and successfully completed the test four times. The officers who pulled him over testified at his trial that they determined at the time that he was not intoxicated, but they described that determination at trial as "erroneous." One of the officers also claimed that her watch commander told her not to do the tests until two hours after the incident. She said she felt "nervous" at the scene because several high-ranking police officers were present.

Police gave Bolling a Breathalyzer test more than four hours after the accident. His blood alcohol content at that time was .079 percent, just below the legal limit of intoxication of .08. At the trial, a forensic toxicologist with the State Police testified that, had a Breathalyzer test been performed just after the accident, he would have tested above the legal limit.

Continue reading "Police Officer Convicted in DUI, Hit and Run Case" »

Yadira Torres, a 26 year-old resident of Hartford, Connecticut, will serve at least five years in prison under an agreement to plead guilty to driving while intoxicated and vehicular manslaughter in state Superior Court in Stamford. A judge will decide the exact length of her sentencing at a hearing scheduled for February 22. The case involves an accident in May 2011 that killed a truck driver and a pregnant teenager.

Early in the morning of May 7, Torres was driving a Dodge Caliber SUV home from a night out at a nightclub in Manhattan. As she was going north on Interstate 95 in Darien, Connecticut, Torres lost control of her vehicle while attempting to pass a tractor trailer. Her vehicle collided with the tractor trailer with enough force to cause it to turn over and spin, becoming separated from its trailer. The truck caught fire when it came to rest.

Passers-by managed to remove the truck's passenger, 18 year-old Kimberly Taborda. Rescue workers pronounced the truck's driver, 42 year-old James Sorto, dead at the scene. His burns were extensive enough that the medical examiner needed several days to identify his remains. Taborda died of blunt trauma injuries later at a nearby hospital. Police arrested Torres at a different hospital, where she and her three passengers were taken for minor injuries.

Torres was remorseful over the accident and admitted to full responsibility, according to the public defender who represented her. She is free on $35,000 bail pending her sentencing, and her attorney says that she has not driven a car since the accident occurred. She reportedly had minimal automobile insurance coverage, so the families of the victims have opted not to file civil claims against Torres for wrongful death. An attorney for Taborda's family, however, told the Stamford Advocate that the family is considering a dram shop lawsuit against the Manhattan nightclub that allegedly served Torres alcohol that day. Dram shop cases involve claims against people or businesses that serve alcohol, if they serve a visibly intoxicated person and that person goes on to cause injury to another person.

Prosecutors charged Torres with driving under the influence, reckless driving, and two counts of manslaughter. Her plea, entered in court on November 22, includes all four charges. At her sentencing hearing in February, her attorney and the prosecutor will each present arguments to the judge regarding an appropriate sentence. She will serve a minimum of five years, but could serve as many as eight years in state prison.

Continue reading "Driver Pleads Guilty to DWI, Vehicular Manslaughter" »

Steven Dickson is facing a manslaughter charge because a passenger riding with him died after an auto accident. Mr. Dickson was alleged to have been driving under the influence. Mr. Dickson lost control of his vehicle when he attempted to avoid an animal in the roadway. He was ejected from the car when it overturned and suffered only minor injuries. His blood alcohol level was alleged to have been over 0.10.

Even though this is a Florida case, it raises an important issue; i.e., when is a DUI resulting in death murder and when is it manslaughter?

It seems like there are now more DUI cases being filed as murder than ever before. There are a number of issues which separate a DUI murder from a manslaughter. I will
attempt to clarify them below:

California Penal Code Section 187 [Murder] is the most serious charge that can result from a DUI. Murder is killing with malice aforethought, either express or implied. Whereas express is essentially intent to kill, implied requires certain elements. These elements are: 1) intentionally committed act 2) natural consequences were dangerous to human life 3) at the time, the defendant knew the act was dangerous to human life 4) defendant deliberately acted with a conscious disregard for human life.

The difference between implied malice and gross negligence (the burden in manslaughter) can be somewhat subtle. Gross negligence has been ruled to be exercise of so slight a degree of care so as to raise a presumption of conscious indifference to consequences where implied malice is present when a person, knowing his/her conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life.

Awareness of risk and an element of wantonness separate gross negligence and implied malice [People v. Watson (1981) 30 Cal.3rd 290]. The level of wantonness and awareness is usually provided by way of evidence, such as blood alcohol level, knowledge of the hazard, intent to drive before drinking and prior DUI convictions.

Punishments for this type of offense can be 15 years to life in prison or even more in certain circumstances.

Vehicular manslaughter is either with gross negligence or without gross negligence. The elements of gross negligence is the killing of a human being without malice, while driving a vehicle in violation of California Vehicle Code Section 23140, 23152 or 23153, and the act was proximately caused by an unlawful act not amounting to a felony or a lawful act which might produce death in an unlawful manner with gross negligence.

The penalty for this can be 10 years in prison.

The elements for involuntary manslaughter are basically the same as above but without gross negligence. This charged, as a misdemeanor, can bring a sentence of 1 year in jail or, as a felony, 4 years in state prison.

The previous discussion clearly shows the complex nature of murder and manslaughter filings. The filing cannot be determined by a computer, but rather, by a serious and close examination of the facts.

A jury in Santa Ana returned a verdict of guilty in the manslaughter trial of Jeffrey Kirby. Mr. Kirby was on trial for the death of Tagout owner Charles Lewis, Jr. Mr. Lewis was killed when he allegedly became involved in a street race between his Ferrari and Mr. Kirby's Porsche. The prosecution argued Mr. Kirby lost control of his vehicle and this caused Mr. Lewis's vehicle to hit a pole. Mr. Lewis was killed instantly and his girlfriend was severely injured when she was ejected from the car. The race involved speeds over 100 m.p.h.

Mr. Kirby was convicted of vehicular manslaughter with gross negligence while intoxicated as well as causing injury to another victim. He faces a maximum prison sentence of 13 years. Mr. Kirby also had a prior conviction for DUI. Mr. Kirby was acquitted of fleeing the scene of an accident, which could have added an additional 5 years to his sentence.

Defense counsel for Mr. Kirby has maintained Mr. Kirby was extremely remorseful for the incident. It was the Defense's contention during the trial that Mr. Kirby spun out but did not believe he collided with the Ferrari. The People contended, even though Mr. Lewis was racing, Mr. Kirby's negligence actually caused the crash.

A Newport Beach police officer saw the accident while he was transporting a prisoner to the Orange County Jail. Mr. Kirby stopped at the crash for a few seconds before he drove a short distance to where he was ultimately arrested. He had a blood alcohol level of .13 and also had marijuana in his system two hours later.

A Texas State Senator has filed a bill which would permanently revoke a person's driver license for driving under the influence. State Senator Jane Nelson cited a crash in which two people were killed by a man who had three prior DUIs.

It is common around this time of year for efforts to be made to increase penalties against drunk drivers. It is thought even tougher penalties will decrease the number of DUIs and, in particular, the number of alcohol-related deaths. The problem with this line of reasoning is most people who are convicted of DUIs never get another DUI. These are people who have just made a mistake. Further, a great many people drive under the influence and are never caught or never cause injury.

Many years ago, when the blood alcohol level required for DUI was .15 percent, most people had to consume a significant amount of alcohol to reach this level. However, now that the legal limit is .08 percent, only a few drinks are needed, and hence, a lower level of intoxication. Can it really be argued a 45 year old man with a blood alcohol level of .08 percent is more dangerous on the road than a 17 year old boy who now has a California Driver License and can drive alone?

Some people argue more jail time is needed in DUI cases involving deaths. In California, however, if a person is convicted of murder because of a DUI, he/she will be sentenced as a murderer. If you think they are not punished enough, pay attention to the sentence handed down to the driver who caused Angel's pitcher Adenhart's death. For most people convicted of driving under the influence, including many second offenders, jail time is not the answer. In fact, there are many who believe it does not work at all.

By permanently revoking a person's privilege to operate a motor vehicle, it will likely only result in the person driving anyway, but this time without insurance. While some people may take public transportation, the reality is California is not like New York City...many Californians commute very long distances. So, if a person is confronted with the dilemma of driving without a valid license or going bankrupt because he/she can't get to work, the choice is obvious.

I'm not arguing individuals convicted of DUIs should not be punished. A law has been broken and people must be persuaded not to break it again. However, fines, alcohol treatment programs as well as license restrictions is all that is needed to accomplish this goal in the vast majority of cases. It is asking a bit much to take away a person's freedom, driver license, livelihood and money and, then, tell them to also stop drinking.

Final arguments were given in the trial of Jeffrey Kirby charged in the death of Charles Lewis. Lewis, known as Mask, was a wealthy businessman who owned the TAPOUT clothing business. Mr. Kirby is charged with vehicular manslaughter with gross negligence while intoxicated as well as driving under the influence causing bodily injury with included sentencing enhancements.

The main issue presented in this case is who caused the accident. What is known is that on March 11, 2009, at 1:00 a.m., the victim's Ferrari spun out of control and collided with a pole, killing him instantly. A passenger was thrown from the vehicle and suffered numerous severe injuries. Mr. Kirby was arrested later with a blood alcohol level of 0.13 percent. Mr. Kirby also has a prior conviction for driving under the influence.

The surviving victim has no recollection of the incident or even of being in the vehicle. The prosecution contends Mr. Kirby caused the accident when he lost control of his Porsche during a race with the victim's Ferrari involving a speed in excess of 100 miles per hour. The defense argues the Ferrari was traveling at 100 miles per hour and caused Mr. Kirby to lose control of his Porsche when he was attempting to get out of Mr. Lewis's way.

The prosecution must prove Mr. Kirby was a substantial cause of the auto accident and, while driving under the influence of an alcoholic beverage while speeding with gross negligence, caused the death of Mr. Lewis. Since this incident happened early in the morning on a relatively deserted road with few witnesses, the jury will not have many, if any, independent witness accounts upon which to base a decision.

The trial of Jeffrey Kirby in the death of Charles Lewis, an entrepreneur better known as "Mask", is currently underway in Santa Ana.

The collision which resulted in Lewis' death involved a Porsche and a Ferrari allegedly traveling at speeds in excess of 100 miles per hour. The Ferrari, driven by Lewis, hit a concrete light pole and was cut in half. The People are arguing Mr. Kirby knew driving under the influence was dangerous and that his blood alcohol level was .13 percent two hours after the accident.

Mr. Kirby is facing one count of vehicular manslaughter with gross negligence and one count of driving under the influence causing bodily injury. The Defense is alleging Mr. Kirby didn't cause the accident. Rather, they argue the victim caused the accident when he tried to pass Mr. Kirby's Porsche. The defense is further arguing Mr. Kirby, in fact, did not know a collision had occurred because he could not see the Ferrari. Mr. Kirby faces substantial state prison time, in excess of 15 years, if convicted.

Factors which may have contributed to this tragedy are the presence of two high performance vehicles, on Jamboree Road, in the evening. Even though the victim did not have any alcohol or drugs in his system, traveling in excess of 100 miles per hour on a road at night can be fraught with danger.

The real question in this case may not be the DUI (Mr. Kirby was a .13 BAL two hours after driving), but rather, what the real facts are with regard to the true cause of the collision.

After celebrating Game 2 of the World Series, a Folsom man drove his vehicle from San Francisco into Washington Creek. The man thought he was heading home to Folsom but instead crashed in Petaluma. When asked where he was, the man said "Folsom", a city nearly 100 miles away. A possible reason for the disparity in location was his blood alcohol level of 0.19 percent.

A witness said the man might have fallen asleep at an intersection and, when startled, accelerated rapidly through the intersection and into the creek. Since the water level was low, the man was uninjured. The interesting thing about this incident is 1) the man drove a very long distance and 2) he drove a very long distance the wrong way!

Although this author does not know the time of the chemical test, it would not be a leap of logic to assume it may have been up to an hour after the accident. Add to this the one to two hour time elapse after the last drink, and it could be further assumed he was in the elimination phase for up to three hours. The importance of being in the elimination phase for three hours is this: Although the blood alcohol level may have been 0.19 percent after the incident, it may have been a great deal higher when he left San Francisco. The best evidence of this is probably the fact the man drove 100 miles in the wrong direction.

Large quantities of alcohol can adversely affect a person's ability to make rational decisions. The fact this instance of driving under the influence occurred very early in the morning likely stopped this accident from being something quite worse.

Joel Miranda, who has three prior convictions for driving under the influence, received 20 years in prison for his most recent conviction of gross vehicular manslaughter. Mr. Miranda's blood alcohol level was 0.23 percent one hour after the crash which killed a pedestrian.

In this case, only one of the prior convictions appears to have occurred within 10 years of this offense. Even though a prior over 10 years old can be used in sentencing, it is usually only a valid prior if it occurred within 10 years of the date of the present offense. But since Mr. Miranda was convicted of gross vehicular manslaughter, this was probably not important. What is becoming increasingly obvious to me, however, are the very high blood alcohol levels involved in these types of cases.

As alcohol is a central nervous system depressant that reduces inhibitions, it must also interrupt a person's rational thought process when ingested in high levels. If Mr. Miranda had been asked the day before the accident if he would ever drive with a blood alcohol level of 0.23 percent, I am sure he would emphatically have said no. Some individuals are incapable of monitoring the number of drinks they consume and the more drinks they consume, the less they are able to monitor...and this also means they are incapable of monitoring when or when not to drive.

The interesting thing about this problem is the real problem is driving and not drinking. If you don't drive, you can drink all you want. The decision to drive is at least partially decided when a person is sober. We have to assume a person drove sober and parked his car at the location where he then got drunk. So, wouldn't it make sense to find a way to get people to dispose of their keys when they are sober instead of disposing of a life when they are drunk?