Posts Tagged ‘Offender Score’

DUI pled to Flying While Drunk: Prosecutorial Discretion Run Amuck?

March 6, 2012

So it snowed last night. A fair amount. I think we’re up to about 3 inches. The freeway won’t be a problem, but the side road is iffy. Rather than risk certain death (I’m ever-phobic of driving on snowy roads…people are idiots). I decided to peruse fark.com.

That’s when I came across a story that was a little disturbing. It starts out like most drunk driving stories, with a man almost putting himself in a ditch and generally driving like the opposite of Ms. Daisy. Soooo…replace Morgan Freeman with Charlie Sheen.

So he gets popped, blows double the limit, but there are inconsistencies in the blow. Best consistent reading is .13. The prosecutor sees the weakness, even though there’s three sets of FSTs, all very damning. So what does he do, gives a plea to Operating an Aircraft under the Influence. This doesn’t count as a driving offense, so none of the usual DUI penalties are put in place. The guy never even had a pilot’s license.

Friends on both sides of the v, I’d be happy to hear your take on it. What do you think of pleading down a DUI to a non-traffic offense?

One side note, the process in Wisconsin, where this went down, will still count the Flying while Intoxicated charge on his offender score.

WA Legal Roundup – WA State Supreme Court: Per curium defining substantial bodily harm; withdrawal of plea ok given misunderstanding of offender score

October 6, 2011

Two new opinions out of the court. One was a per curiam decision. What does that mean? The law in the thing is so basic, that the court doesn’t really feel the need to have a “majority” author, because the court is speaking with one united voice. Here, in State v. McKague, the court used the opportunity to correct the court of appeals definition of substantially bodily harm:

The Court of Appeals affirmed the convictions in a split decision. Judge Armstrong dissented on the issue of the sufficiency of the evidence of “substantial bodily harm.” He specifically disagreed with the lead opinion’s citation to a dictionarydefinition of the term “substantial” as including “something having substance or actual existence.” State v. McKague, 159 Wn. App. 489, 520-21, 246 P.3d 558 (2011) (Armstrong, J., dissenting in part and concurring in part). Judge Armstrong opined that under this definition, any cognizable injury would necessarily be “substantial.” He would have held that the term “substantial” requires the harm to be considerable and that the State’s evidence was insufficient to meet that standard.

We agree with Judge Armstrong that the majority applied an erroneous definition of “substantial,” but we nonetheless affirm McKague’s conviction because the evidence was sufficient to show that Chang’s injuries were “substantial” under a proper definition.

The court takes no side on whether it was appropriate to define substantial in a jury instruction, only that the definition by the court of appeals was wrong. So what is the proper definition?

We hold instead that the term “substantial,” as used in RCW 9A.36.021(1)(a), signifies a degree of harm that is considerable and necessarily requires a showing greater than an injury merely having some existence. While we do not limit the meaning of “substantial” to any particular dictionary definition, we approve of the definition cited by the dissent below: “considerable in amount, value, or worth.” Webster’s, supra, at 2280.

The next case on the block is State v. Robinson. Robinson was given a plea deal after being explained the implications. He thought his juvenile offenses had washed out. Not true. So basically he hadn’t made a knowing and voluntary waiver, and the trial court allowed him to withdraw the plea. The Supremes agreed, holding that it was not an abuse of discretion to do so.

 

WA Supreme Court: Courts Need to Compare Out of State Offenses

May 6, 2010

State v. Lucero

Lucero was convicted and had a previous Cali. conviction. The trial court used it in calculating Lucero’s offender score without doing a comparison, relying on his acknowledgement that the offenses (burglary) were comparable. While this is likely the case, it’s the Court that has to do that analysis. The WA Supreme Court remanded for just that purpose, and the Court of Appeals reissued the same opinion, relying on the acknowledgement. It is now kicked back down a second time so the court of appeals can do what it should have done the first time it was remanded. The court issued its opinion per curiam, which essentially means that its not worth anyone taking credit for and is a very obvious opinion (usually adopting the prehearing).


Follow

Get every new post delivered to your Inbox.

Join 476 other followers