Oft-delayed Foshee Trial to begin

[There is a Notice of Appeal dated on publicaccess  dated 4/25/2012]

[SENTENCING finally actually happened 4/18/2012; the matter is finally (hopefully) put to rest.  According to my correspondent, Foshee received 10.5 years for manslaughter 6 years each on the endangerment, 22.5 years, but to be served concurently so 10 1/2 years, TOTAL, which is the presumptive sentence for manslaughter all by itself, a dangerous class 2 felony (see 28-704). Off-hand, not knowing all details and back-story -- this seems too light given the hit-and-run, the other aggravating circumstances, the prior DUI conviction, and the (I presume) rejection of a plea deal. In short, it seems to me the justice system is sending many wrong signals here, for example it appears that, once again, there is no penalty whatsoever for hitting-and-running. You can read the sentencing case minute here. ]

[Updates from case minutes 3/28/2012: The motion for a new trial has been DENIED.  And separately, on the Defendant’s Motion, the defendant has been found to be indigent. I assume this has something to do with lawyer's fees. Sentencing remains scheduled for 4/6/2012]

[Sentencing Update; 3/23/2012 -- to the surprise of probably no one, sentencing did not occur as scheduled. The defense has filed a motion for new trial (here is the case minute, but it doesn't explain anything), the prosecution has until 3/23 to respond. The sentencing has be re-scheduled for 4/6/2012]

[breaking news update: 2/14/2012 -- guilty on all counts / and all counts are "dangerous"; the jury in a seperate phase found the charge to be aggravated (will make sentencing, scheduled for March 23, harsher). Man guilty of manslaughter in bicyclist's death, Jim Walsh. Here is the verdict case minute, it is quite detailed ]

The manslaughter trial stemming from an incident where a cyclist was killed in August of 2009 is actually going to trial 1/30/2012 after many delays — yes, that was almost two and half years ago!

My correspondent told me that jury selection did begin on Monday.

According to police, issued to the media, at the time:

• A WB driver crossed over into the EB lane and collided head-on and killed Russell Jenkins
• “The rider…  had a working headlight on his bike”
• “The surviving cyclists … reported that Foshee had a strong odor of alcohol”
• “The driver fled the scene, but the Maricopa County Sheriff’s Office Traffic Unit later arrested Gary Foshe [Foshee], 53″
• “two deputies reported that Foshee had a strong odor of alcohol and several signs of intoxication”

The defendant’s prior DUI conviction, as well as his blood test results are likely to be key factors. On the other hand, the issue of the victim’s posthumous blood test results is, from what i can tell, irrelevant because it did not affect the crash in any way.

Much more background here and here.

AZ legislature tweaks DUI laws

UPDATE: 12/26/2011 ; new, reduced penalties kick in in a few days… DUI sentences to ease in 2012 for first time offenders:1st-time offenders will be rid of interlock devices sooner

——– original article follows ——–

The dramatic weakening of what were formerly among the most severe DUI penalties in the US take effect in mid-July 2011 – Hundreds of new Arizona laws take effect this week

In what seems to be annual ritual, the Arizona legislature passed and the governor signed changes to Arizona’s DUI laws via SB1200 (Spring 2011: 50th, 1st regular session).

There are a whole bunch of tweaks to the length of ignition interlock (IID), Read the rest of this entry »

DUI Brake Light Conviction tossed

“When it comes to brake lights, one is enough, at least according to the state Court of Appeals. In a unanimous decision Friday, the judges threw out the drunk driving conviction of Aaron Fikes.” – verdenews.com Weird, i’m not seeing anyone like Arizona Republic covering it; at least according to a search… I heard a short mention of it on KJZZ news.

Since the case was out of Tucson, it would have been heard in the Arizona Court of Appeals, Division Two. And sure enough, it popped right up under recent cases: STATE OF ARIZONA v. AARON RAYMOND FIKES CR20110124. Note that the driver was up on serious charges, aggravated (indicating other/previous problems; such as previous simple dui convictions, or suspension, or driving dui with a minor in the vehicle) DUI, and driving on a suspended license, for which he was sentenced to 4 months in jail and 3 years of probation.

In short, the conviction was tossed because the traffic stop was found to be without just cause, and therefore the evidence that the driver was DUI should have been supressed. The State Attorney General’s office vows appeal to Arizona Supreme Court. Read the rest of this entry »

Foshee Trial delayed again again again

[Trial actually, finally begins: oft-delayed-foshee-trial-to-begin ]

Some background information and media reports about the incident which occurred 8/15/2009: Queen Creek hit-and-run; driver arrested Read the rest of this entry »

Horrific Crash kills 4 Motorcyclists

The driver of a heavy commercial dump truck piled into a group of motorcyclists who were stopped at a red light; reportedly he was distracted.

Phoenix Public Safety Manager Jack Harris described the scene “I have never seen such a horrific accident involving so many motorcycles,”

The crash 3/25/2010 at Carefree Highway and 27th way, Phoenix, initially killed 3, a fourth died a few days later. Several were seriously injured, including a Phoenix Fire Captain in critical condition.

Today the Arizona Republic is reporting in a 3/27/2010 story that the driver has a string of infractions, many of which sound like technical/equipment-related, and several of them were dismissed. However, the driver has an outstanding citation for failure to control about two weeks ago in Scottsdale, related to an (apparently minor) collision. These cases pop up on a search of the Arizona Supreme Court case lookup. But strangely, the reporter seems to be unaware of additional actions in Maricopa Justice Court, including one just dated just a couple of days before the huge crash. (search on Michael Jakscht)

The investigation is still ongoing, but with no hints of impairment the likely outcome, barring a surprise, will be a traffic ticket and no criminal charges.

The Surprise

Driver in fatal Phoenix motorcycle crash booked on 4 manslaughter counts, 4/06/2010 & Bond for driver in fatal motorcycle crash set at $1 million, 4/07/2010, AZ Republic.

Phoenix police arrested Jakscht on suspicion of driving under the influence of methamphetamine. Read the rest of this entry »

Legislative Immunity from DUI?

Arizona Senate majority (Republican) leader, Scott Bundgaard got into a dustup involving a fight with his girlfriend on the side of the road, a gun, and drinking and driving. This occurred on February 25, 2011; on their way home from some sort of charity function.

Over the period of time between then and March 24th he claimed repeatedly that the police report will reveal that, among other things, that he did not seek legislative immunity, and that he was “stone cold sober”… ”The final police report, released Thursday, largely contradicts his story”. Senate GOP unsure about Sen. Scott Bundgaard’s story, future

There are loads of salacious details and questions but I am mainly concerned with the drinking/driving aspect, and how legislative immunity works. Read the rest of this entry »

Arizona Supreme Court rules on DUI blood-test issue

Recent ruling in the Phoenix case of Joes Carillo: “The Arizona Supreme Court ruled this morning that, to collect blood from a person suspected of DUI, police must get specific consent from the suspect or get a search warrant…” Read the rest from NewtimesBlog. Read the rest of this entry »

Driver Sentenced: Bullhead City cyclist killed in hit-and-run

Larissa Jean Castilleja

Larissa Jean Castilleja, 43, a Bullhead City High teacher was killed Sept 9, 2009 when a driver hit her and fled the scene.

This fatality bears many similarities to several of four recent fatalities in the Phoenix-metro area this past summer.

1. the automobile driver hit-and-ran (all 5 incidents)
2. DUI on the part of the automobile driver is suspected (at least 4 of the 5 incidents)
3. time of day was overnight/early morning (ranging from 10pm to 4am)
4. no improper actions on the part of the cyclist are suspected (all 5 incidents)

The suspect was later charged with manslaughter and leaving the scene, on Sept 28 he plead not guilty; and according to the Mojave Daily News, has secured himself  all-star Scottsdale DUI lawyer Scott Maasen. In granting the reduced bond, the judge expressed reservations and then … did it anyway! It was also revealed in that story that the defendant has an outstanding warrant for DUI in Nevada, which he says he is not aware of.

The Plea

The defendant plead guilty to manslaughter, leaving the scene, and DUI. Sentencing is scheduled for May 21, 2010. Case number S-8015-CR-200900986, online lookup.

Sentencing

The [mohavedailynews] had a pretty good rundown of the sentencing:

Judge Steven Conn sentenced Gagliardi to prison for 13 years for both felony crimes (8 for the manslaughter, 5 for hit-and-run), saying the two charges were separate crimes and deserved consecutive sentences. He only found a lack of criminal record as a mitigating factor and that Gagliardi also had about 20 moving violations, mostly for speeding. He found aggravating factors that Gagliardi’s blood alcohol rate was more than twice the legal limit and the emotional harm to Castilleja’s family. The judge also said he hoped the sentences would be a deterrent to people who visit the casinos and drink then get into their cars to drive home.

see also [kingmandailyminer].

Read the rest of this entry »

Motorist Pleads to Manslaughter in Cyclist Death on Maricopa Road

Michael Gray (Michael Gordon Gray), 43, died Sunday April 12, 2009 when a suspected impaired driver killed him at 3PM traveling along Maricopa Road nearby the access road to the Koli Equestrian Center. GRIC (Gila River Indian Community) police say they suspect the motorist may have been under the influence.

Here is near where the collision occurred. Maricopa Road is a fast (posted 50MPH) two-lane rural highway — one relatively narrow lane in each direction, there is a shoulder stripe and perhaps a foot or so of irregular asphalt and lots of gravel

In the several months that have passed, I am looking for updates on the status of the investigation. From what I gather, sometimes but not always, serious crimes on the reservation go to federal jurisdiction, see e.g. Sacaton man gets 27 years in killing of Gilbert bicyclist (more detail in the DoJ press release). Here’s some more explanations, see “Role of Gila River Indian Community Justice System”, from meeting minutes of the Arizona State, Tribal, and Federal Court Forum.

2009 AZ Cyclist Fatality Grid

Criminal Case

I spoke with Sgt. Hilario Tanakeyowma of GRIC PD (GRIC PD main number — I had some difficulties finding this — (520)562-7139, x7122). in mid-March 2010 and he confirmed that the defendant is in custody and was charged with manslaughter.

Case  CR-2009007876 in Maricopa County Superior Court, and can be looked up at  supremecourt.az.gov. Strangely, when I looked this up in mid-March, the case was sealed for some reason(?). In any event David Allen Wiechens, Sr. plead guilty to manslaughter. Sentencing is scheduled for April 30, 2010. This carries a presumptive sentence of 10.5 years (13-704 , dangerous, non-repetitive). On April 30, for unknown reasons, sentencing was “continued” to 06/18/2010 at 8:30 a.m.

Sentencing then did occur on 6/18, minute entry here. Defendant was sentenced to 10 years in prison and ordered to pay $8,019.28 restitution to the victim’s parents, and his driver’s license was revoked.

Arizona Crash Report

I obtained a copy of the crash report # 09-14619 from GRIC PD.

The report written by Officer M. Evins appears to be of very high quality, with several lucid pages of narrative and witness statements. The manner of collision is not at all what I had imagined. There were three cyclists traveling together; but they were not physically together. They were each separated by ~ 50 yards, and they were all riding to the right of the fog line, on the very small paved shoulder. Wiechans passed the first two without incident, after passing the second cyclist he inexplicably swerved sharply, thus striking and killing Gray. Wiechan’s statement was that he saw two cyclists only and then heard a loud bang. There were many witnesses; in addition to the two cyclists who were not struck, the driver and passenger of a car traveling behind Wiechens also saw the whole thing. Wiechans, up until the fatal swerve, did not appear to be driving erratically, according to witnesses behind him. There is a hypotheses put forward by the investigating officer about the fatal swerve: “It is believed that David (Wiechans) was drinking from the open Bud Light bottle while he was driving and possibly spilled it in his lap when the collision occurred because I observed a fairly large wet spot in the right groin area of his pants”.

Other issues: according to the report the vehicle involved was purchases just a few days before the crash; and that it had no insurance. The investigating officer found an “…Admin per se suspension in the open center console dated 1/2/09 at 2032 hours at a location in PCSO’s jurisdiction with BAC results of .171 and .164 which was impounded as evidence”.  In addtion to GRIC PD, a DPS Drug Recognition Expert (DRE) was called in, and blood was drawn.Though alcohol was clearly involved, the suspect was not apparently particularly drunk, though other impairment was suspected. Any results are not in the crash report — but presumably figured heavily into the criminal case. Read the rest of this entry »

Arizona sees surge in DUIs tied to medicine

Arizona sees surge in DUIs tied to medicine; AZ Republic, 4/08/2010.The gist of the article is that there is better detection; resulting in more DUI’s for non-alcohol.

One wonders how this ties into crashes involving injuries and death. Is blood routinely drawn, even when the driver passes field sobriety tests, as was the case of the dump truck driver who killed 4 motorcyclists recently?

Apparently blood was drawn from the driver who killed Allen Johnson — the investigation of which dragged on for 5 months culminating in a traffic ticket. Conversely, presumably no blood was drawn from the driver who killed Jerome Featherman. That case wrapped up with a couple of traffic tickets more-or-less immediately. Both cases were handled by the Pima County Sheriff’s Office, and in both cases impairment was not suspected. Was the driver who killed Featherman under any influence of prescription drugs? We’ll never know for sure.

It seems to me that blood should be drawn in any serious injury crash, and most certainly in EVERY crash involving a fatality. What are the rules?

Another problem is what to do with the results; The 21 year-old driver who killed Lance Adams (walking on the SIDEWALK, for cryin’ out loud!) was never charged despite Ambien (sleeping pill) , Darvon (a narcotic pain reliever),  plus some marijuana in his blood. In that case, police recommended charges but the prosecutor wouldn’t bring any. Setting the marijuana aside; the warning for both these medicines has warnings not to drive (as do many, many medicines).

Background Info on drug impairment

Ambien / Zolpidem

Zolpidem (sold under the brand name Ambien) is a short-acting nonbenzodiazepine hypnotic with quick onset, and short (2 – 2.6hrs) half-life. It is well known that it can cause driving impairment, particularly when not taken as directed.

In hunting around for quantitative info on Ambien impairment, I ran across work from WSLH, the Wisconsin State Laboratory for Hygiene. Within their perview is the Medical Toxicology Section which performs alcohol and drug analysis for law enforcement agencies in support of Wisconsin law enforcement. Zolpidem Impaired Drivers in Wisconsin A Six Year Retrospective, William R. Johnson, et al. [.ppt of presentation][view online]

A white paper from the IECP :  Zolpidem and Driving – A Dangerous Mix [.pdf][view online] has some useful summaries.

Some interesting info on voluntary vs. involuntary acts with respect to drug DUI from this CA defense attorney firm.

Here are two published papers, with PubMed link (and also, click on either and check out the “related”):

• J Forensic Sci. 2001 Jan;46(1):105-10. Zolpidem and driving impairment. Logan BK, Couper FJ.
• WMJ. 2003;102(6):79-83. Forensic Toxicology Program: alcohol and drug testing in Wisconsin drivers. Harding P, Liddicoat LJ. [full .pdf article]

Ambien/zolpidem prescribing info – warnings (emphasis added): “Patients should be cautioned against engaging in hazardous occupations requiring complete mental alertness or motor coordination such as operating machinery or driving a motor vehicle after ingesting the drug, including potential impairment of the performance of such activities that may occur the day following ingestion of Ambien”

Here’s a handy reference list to drugs/driving: nhtsa.gov/people/injury/research/job185drugs/index.htm