…

Ariz. high court rules on DUI blood-test issue

Jun. 7, 2010 02:33 PM, Associated Press

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].

—

Full text  of Bullhead City Police Department Press Release (.pdf here , includes a picture of the suspect) is below. It is well written and contains a lot of salient information, e.g. it specifically mentions the time of the collision, and the fact that the bicycle was equipped with lights. My only criticism is the use of the term ‘accident‘ — which should, of course, of been ‘collision’, or ‘crash’

Fatal Vehicle vs. Bicycle Accident
The Bullhead City Police Department arrested 53-year-old Gino Salvatore Gagliardi of Fort Mojave, Arizona for leaving the scene of a fatal accident after hitting a cyclist with his vehicle. Manslaughter charges are pending.
At 4:12 a.m. on Wednesday, September 9th, 43-year-old Larissa Jean Castilleja of Bullhead City was riding her bicycle southbound on the Bullhead Parkway, near North Oatman Road, when she was struck by a 1983 green GMC van driven by Gagliardi. Castilleja was pronounced dead at the scene.
Gagliardi’s vehicle, which had front-end damage and a flat tire, was found abandoned on Adobe and Mountain Pass Road. Witnesses say he left the area on foot. A few hours later, police located Gagliardi at his Fort Mojave residence. After further
investigation, police believe that alcohol may have been a contributing factor in this accident. A blood sample was taken from Gagliardi and per the Mohave County Attorney, manslaughter charges are pending the laboratory analysis of the blood. He was booked into the Mohave County Jail in Kingman.
Castilleja was wearing a helmet and her bicycle was equipped with safety lights.

…

2009 AZ Cyclist Fatality Grid

News reports: KPHO azcentral Mojave Daily News

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.

azcentral :

Chandler man dies in car-bicycle accident [accident? grrrrr]

by Cathryn Creno – Apr. 17, 2009, The Arizona Republic

A 43-year-old Chandler man died Sunday after his bicycle and a car collided on Maricopa Road on the Gila River Indian Community, tribal police said Thursday.

Alia Maisonet, community public information officer, said Michael Gray was dead at the scene, in front of the Koli Equestrian Center, when medics arrived about 3 p.m. She did not release the name of the driver of the car, saying tribal police continue to investigate the accident.

The Maricopa County Medical Examiners Office said Thursday that Gray died of “multiple blunt force injuries.”

“The investigation revealed the victim was struck by a vehicle driven by a white male non-community member,” she said in a statement. “Alcohol may have been a contributing factor.”

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”

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 3/25/2010 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. He was booked on four counts of manslaughter, five counts of aggravated assault and seven counts of endangerment. Apparently the suspect’s circumstances forced a quick arrest, and resulted in a relatively large bond.

The former article had lots of interesting snippets about how or why this investigation proceeded amazingly quickly. It has been only about two weeks since the crash (emphasis added):

Toxicology results take up to six weeks in most criminal investigations, according to police. Jakscht’s blood sample, which police drew after he passed field sobriety tests, was made a priority.

“In this case, to get the result, so he doesn’t drive more or drive impaired, it was the department’s decision to make it a priority,” Phoenix police Sgt. Trent Crump said.

…The Carefree Highway wreck came two weeks after Jakscht was cited by Scottsdale police for failing to control his speed to avoid a collision at Shea Boulevard and Hayden Road. The police accident report detailed how Jakscht, driving a pickup truck in his name, struck a stopped vehicle.

…

For starters, one victim, a motorist, dead. A number of injured motorists. The suspect, locked up since the crash on December 24, 2007.

Christopher Lee Smith, 32 years old, stands accused of DUI and manslaughter in a wrong-way, head-on collision on Pecos Road near 14th Street in Phoenix, AZ.

According to the Ahwatukee Foothills news story; “At the time of the crash, Smith was on probation for a previous misdemeanor DUI…”

Superior Court case number CR2008-102616 or search on supremecourt.az.gov

The “Sleep Driving” defense?

The so-called “sleep driving” defense may be employed, see e.g. this minute entry “Defense expert witness re sleep driving is discussed”

Trial delayed again due to a death in one of the victim’s family. The AFN is reporting (Oct 30, 2009? but i can’t find online) that the defendant has rejected a plea deal (no details given) and trial is scheduled for February 2010. The defendant remains incarcerated.

The Trial and Guilty Verdict

Trial coverage. Verdict, guilty. 2nd Degree Murder, and 3x aggravated assault.

Sleep driving. Sleep driving? SLEEP DRIVING!? What will the defense lawyers think of next? Does this ever really work? “…But defense attorney Charles Shell told the same jury that the tragedy was not his client’s fault because Smith was driving in his sleep and was unaware of what he was doing”, “An expert witness hired by the defense, Dr. Dave Gaither of Illinois, testified that if Smith had gone to sleep first, then he was probably sleep driving and unaware of what he was doing.” Hmm, what kind of doctor? apparently not a physician.

Sentencing

Wrong-way Christmas Eve driver sentenced to 23.5 years in prison. The print edition, which strangely varied from the online version, and was much longer.

“he asked for the minimum 16 years, base upon the fact that Smith was on probation at the time for endangerment stemming from a Tempe incident where he reused to pull over of a police officer, then drove toward the officer requiring him to jump out of the way and later attempted to flee on foot…” “smith also had an extensive juvenile court record and a previous DUI”. “In sentencing Smith, Myers gave him 16 years for the second-degree murder of Vo, and 7.5 years for each of the three aggravated assaults…Myers ordered that the murder time be served first and that the three aggravated  assault terms could run concurrently. Smith plans to appeal the jury’s verdict”. [court minute entry on sentencing]

The azcentral story says the collision was 6:30p. Sunset that day in Phoenix is 7:03p. No mention of lights was made in either of the news stories.

How will this one play out? After all, three hours is a long time. The suspect will likely deny he was drunk at the time.

Maricopa County Superior Court case CR2009-155996.

(story from East Valley Tribune)
August 25, 2009
Man arrested in hit-run of bicyclist, Mike Sakal, East Valley Tribune

Police arrested a man in connection with a hit-and-run crash in east Mesa that left a bicyclist seriously injured on Monday.

Benito Gil-Mendoza, 31, was arrested on suspicion of aggravated assault and hit-and-run about 9 p.m., slightly more than three hours after he was accused of hitting the bicyclist on McKellips Road near Usery Pass Road, according to Mesa police.

The bicyclist, whose name was not released, suffered multiple pelvic fractures, a broken left arm and vertebrae and bleeding on the brain. He was flown to Scottsdale Healthcare Osborn hospital, according to police. His condition was not available on Tuesday.

An Arizona Department of Public Safety officer conducted a traffic stop on Gil-Mendoza on Loop 202 at Brown Road after his vehicle matched the description of the one leaving the scene, and said the driver had a strong odor of alcohol on his breath.

When a sobriety test was administered on Gil-Mendoza, preliminary results of a portable breath test revealed his blood alcohol content was .21, more than twice the legal limit of .08, according to police

Traffic collisions, not, say, guns, are the leading cause of line-of-duty deaths of police officers. See: More Police Killed by Traffic than Guns.

Note that the term alcohol-related means simply that any of the drivers involved had a BAC of 0.01 or greater.

What intests me, however, is how the chart looks if we include all fatalities and how the same chart would look.

I haven’t made the chart yet, but it would look way different. The new bar, i.e. everything below 0.01, would swamp all the others — it would be 59%, and the former biggest category of BAC 0.19+ would shrink to around 16%, and all the others would shrink commensurately.

raw 2007 fatalities (“old definition”) : total/alc-related/drunk – 41,059/17,036 /14,575

raw 2007 fatalities (“new definition”): total/alc-impaired – 41,059/12,998

The distinction between the old and new definition is that the “new” drops the BAC of pedestrian as a criteria. In other words, alcohol-impaired means drunk motor vehicle DRIVER. It also drops the BAC of bicyclists as well — we could debate that BUT it would only move the stats less than 1 percentage point.

Here is the reasoning. The terminology switch at NHTSA occurred years ago…

A Plea for Prevention
Poole, Galen V. MD, FACS
Chairman, Violence Prevention Task Force; Eastern Association for the Surgery of Trauma.

“Crashes Aren’t Accidents” Campaign

by Pamela Anikeeff, Traffic Safety Programs

On June 8, at the opening of the Lifesavers/15 Conference in Orlando, Florida, Administrator Ricardo Martinez, M.D., with Secretary Rodney Slater kicked off the new nationwide campaign “Crashes Aren’t Accidents”. The Campaign was initiated by Adminstratror Martinez to encourage removal of the word “accident” from our vocabulary. The campaign kickoff featured a poster sized Proclamation (see box) announcing the “Crashes Aren’t Accidents” campaign which was signed by the Administrator as part of the ceremony. In a short time, numerous organizations representing thousands of supporters joined the Administrator and literally “signed onto” the Proclamation as well.

A Crash Is Not an Accident

Changing the way we think about events, and the words we use to describe them, affects the way we behave. Motor vehicle crashes and injuries are predictable, preventable events. Continued use of the word “accident” promotes the concept that these events are outside of human influence or control. In fact, they are predictable results of specific actions.

Since we can identify the causes of crashes, we can take action to alter the effect, and avoid collisions. These events are not “acts of God” but predictable results of the laws of physics.

The concept of “accident” works against bringing all the appropriate resources to bear on the enormous problem of motor vehicle collisions. Continuous use of “accident” fosters the idea that the resulting injuries are an una-voidable part of life.

“Crash”, “collision”, “incident”, and “injury” are more appropriate terms, and should be encouraged as substitutes for the word “accident”.

Within the U.S. Department of Transportation’s National Highway Traffic Safety Administration (US DOT/NHTSA), the word “accident” will no longer be used in materials published and distributed by the agency. In addition, NHTSA is no longer using “accidents” in speeches or other public remarks, in communications with the news media, individuals or groups in the public or private sector.

Recently, two other U.S. Department of Transportation agencies, the Federal Highway Administration (FHWA) and Research and Special Programs Administration (RSPA) joined NHTSA Administrator, Dr. Ricardo Martinez, endorsing his goal to eliminate “accident” from the agencies’ vocabulary. In this manner, attention will be focused on causes of crashes, and what can be done to prevent collisions and the resulting injuries.

Campaign materials include three specific items: 1) a four page booklet which contains a letter from Administrator Martinez concerning the campaign, a copy of the Proclamation announcing the campaign, a sample article for newsletters, and a page of the “Crashes Aren’t Accidents” logo in various sizes ready for use; 2) a brochure which lists 15 proven ways to prevent crashes and avoid injuries; 3) Stickers with the “Crashes Aren’t Accidents” logo. These three items are available from the Office of Communications and Outreach, Marketing and Media Division. Additional materials for conference exhibits include: Plastic carrying bags, red plastic paper clips, and lapel pins with the “Crashes Aren’t Accidents” logo.

PROCLAMATION

Whereas, changing the way we think about events and the words we use will affect the way we behave. Our goal is to eliminate the word “accident” from the realm of unintentional injury, on the highway and across the nation;

Whereas, motor vehicle crashes and injuries are predictable, preventable events. Continued use of the word “accident” promotes the concept that these events are outside of human influence or control. In fact, they are predictable results of specific actions;

Whereas, we can identify their causes and take action to avoid them. These are not “acts of God”, but predictable results of the laws of physics;

Whereas, use of the word “accident” works against bringing the appropriate resources to bear on this enormous problem. It allows the idea that the resulting injuries are an unexpected part of life;

Now, therefore, we the undersigned, in recognition of this life saving and injury preventing opportunity, do hereby proclaim a national campaign:

“Crashes Aren’t Accidents”

To eliminate the word “accident” from the realm of unintentional injury, on the highway and across the nation, with our partners, with the media, and in all public contexts.

I encourage the use of other appropriate terms such as “crash,” ” collision,” “incident,” and “injury.”