Double Jeopardy and Flawed Logic

ARS §28-1592 specifies the time limit for bringing a civil traffic violation. Sort of like the “statute of limitations” for traffic tickets. The normal limit is 60/90 days, but for alleged violations when there is a wreck and investigation the limit is 180 days, and extends to a full year if a fatality is involved.

The rub is that police (cities? jurisdictions?) won’t issue complaints for a traffic violation if there is any sort of ongoing investigation, an incipient neg hom/manslaughter charge for example… and these things do seem like they can drag on forever. They appear to do this in an overabundance of caution — claiming “double jeopardy” issues. As far as I can tell there can be no double jeopardy between civil and criminal.

The end result is that drivers who would clearly be found responsible for a traffic infraction frequently end up getting off scot free; when the criminal case falls through for whatever reason. See e.g. Kandas. Or sometimes it is just an oversight on the part of police. It seems clear that the driver responsible for the Eades fatality could have / should have been cited for §28-701 “failure to control”.

Talk about getting away with murder…

Yet police didn’t confiscate her driver’s license. Had this been a DUI case, Sgt. Joel Tranter told me, they would have taken it and notified the state Motor Vehicle Division so it could administratively suspend Gilbert’s license. But police don’t pursue DUI charges in manslaughter cases, for fear of jeopardizing the more serious charges.

“The (administrative suspension) law does not apply to homicide or aggravated assault cases because those are criminal,” Tranter explained. “They aren’t traffic investigations.”

In other words, if you drive drunk, you lose your license. But if you drive drunk and kill someone, you can keep driving.

Hentoff [the victim’s family’s attorney] calls the police department’s interpretation of the law “absolutely flawed logic.”

Driver in DUI-death case still at the wheel, Laurie Roberts, The Arizona Republic. Aug. 25, 2007

We’ve heard this double jeopardy business before from the police department, and I wish someone would look into it more seriously. This is the same theory that ends up letting off negligent drivers scot free, when the criminal charges don’t materialize. See, e.g. No penalty for fatal crash on Pecos Road, AFN August9, 2006.

Aside from all of that, and aside from the accused’s repeat offenses, isn’t $5,000 bail for manslaughter too low? Isn’t there some sort of guideline for these things?

Meanwhile, back in Phoenix, prosecutors brought manslaughter and aggravated assault charges against Gilbert in July and asked that bail be set at $75,000. So, of course, Commissioner Eartha Washington set it at $5,000.

Sean Casey Death

In a column on Oct. 1, 2007, southeast valley opinion editor Bob Schuster describes a case where a distracted driver, Angela C. Cruz, ran a red light resulting in the death of Sean Casey. The driver was ticketed. Subsequently she was indicted for negligent homicide. If all that were true, it would give lie to the standard double jeopardy line, e.g. as described by Sgt. Joel Trantor in e.g. the Anselmo case “You don’t issue any citations if you think there’s a possibility of felony or criminal charges,” Tranter said. “Otherwise, double jeopardy might come into play.”

The column has some good background and quotes from lawyer Steve Twist who “said the woman’s distracted behavior while driving clearly fit the intent of the ‘criminal negligence’ portion of the code”. And thus, a charge of negligent homicide seems to be well-justified. The problem is the indictments for this sort of behavior are far too rare.

And in an update (pasted at the bottom of this article), there is closure on the neg hom case — in April 2008 the judge “ruled that there was no likelihood that prosecutors could obtain a conviction”, and so dismissed the case with prejudice (means it is settled, forever). The defense attorney also claimed double jeopardy but as far as I can tell that wasn’t why. By the way, “Causing death by moving violation” 28-672 was criminalized in 2006; Sean Casey was killed before that. But all the references refer to her civil charges and fines (which she didn’t pay, nor did she attend traffic school, as was required). Also the vehicle had a suspended (whatever that means?) registration, nor did she have insurance. The Superior court documents for case CR2007-006208-001 (chronlology only). There were motions to dimiss based on double jeopardy, and a response to the motion came way back in November.

The victim, Sean Casey, was walking his bicycle in a crosswalk, with a green light when he was killed.

case law needs more digging: Root tried to claim civil traffic prosecution prevented a subsequent criminal DUI prosecution on double jeopardy grounds, but that didn’t hold up — see169 Ariz. 414; 819 P.2d 1000; 1991 Ariz. App. LEXIS 141; 86 Ariz. Adv. Rep. 71

Driver in DUI-death case still at the wheel

Laurie Roberts, The Arizona Republic, Aug. 25, 2007 12:00 AM

As she lay dying, Phyllis Martin’s last thoughts were for her disabled grandson.

It was noon on a Friday in February, and they’d been hit by a suspected drunken driver while on their way home from preschool.

Martin tried to talk in her final moments but could only communicate by looking frantically toward her grandson. She seemed to relax once she knew someone was with the bleeding boy.

Six-year-old Quinton Weaver doesn’t talk much about that day. Sometimes he asks where Grandma is, but no one’s been able to explain it.

“He asks questions,” says his aunt, Brittany Martin, “but I don’t think he fully understands.”

He’s not the only one.

I don’t understand how it took nearly five months to bring charges against the driver accused of killing Phyllis Martin. Or how, once charged, her bail was set at a mere $5,000, even though she’d been arrested just three weeks earlier and accused of driving drunk again.

And I can’t fathom how it is that to this day she’s still got a driver’s license.

Nick Hentoff, attorney for the Martin family, marvels that Lori Ann Gilbert is out of jail, free to drive.

“Everybody in the system failed the victims,” he said. “In my opinion, it’s a miracle that she hasn’t killed anyone else.”

Gilbert declined to comment and her attorney didn’t return a call.

Police and prosecutors, meanwhile, say they’ve done everything they can.

“We did exactly what we should have done and did it in a timely manner,” said Barnett Lotstein of the Maricopa County Attorney’s Office.

Martin, 55, had just picked up her grandson from preschool on Feb. 16 and was headed north on 43rd Avenue toward Thunderbird when a southbound pickup “made a sudden erratic turn,” according to one witness, and crossed into oncoming traffic.

“It was like she lost complete control,” another witness said.

Gilbert, 36, told Phoenix police she’d had two beers and a Vicodin. Blood tests put her alcohol level at 0.328 percent, more than four times the legal limit.

Yet police didn’t confiscate her driver’s license. Had this been a DUI case, Sgt. Joel Tranter told me, they would have taken it and notified the state Motor Vehicle Division so it could administratively suspend Gilbert’s license. But police don’t pursue DUI charges in manslaughter cases, for fear of jeopardizing the more serious charges.

“The (administrative suspension) law does not apply to homicide or aggravated assault cases because those are criminal,” Tranter explained. “They aren’t traffic investigations.”

In other words, if you drive drunk, you lose your license. But if you drive drunk and kill someone, you can keep driving.

Hentoff calls the police department’s interpretation of the law “absolutely flawed logic.”

“As long as they can prove she was over 0.08, they can take it (her license) away,” he said. “They can, they just don’t.”

Four months after the fatal crash, just before midnight on June 27, Gilbert was again stopped on suspicion of DUI after Marana police say they spotted her driving up onto the sidewalk then drifting across several lanes and up onto the center median.

Gilbert, who had an open can of Bud Light in her cup holder, said she’d had two beers and was on four medications, according to the police report. A preliminary breath test put her at 0.243 percent.

Two months later, Marana still hasn’t taken steps to suspend Gilbert’s license. Sgt. Tim Brunenkant told me they’re waiting for the blood-test results before notifying the MVD.

Meanwhile, back in Phoenix, prosecutors brought manslaughter and aggravated assault charges against Gilbert in July and asked that bail be set at $75,000. So, of course, Commissioner Eartha Washington set it at $5,000. This, three weeks after Gilbert was accused of driving drunk on the sidewalks of Marana.

Lotstein explained that nobody knew about Marana when bail was set.

But shouldn’t someone have known? A simple Internet check would have turned it up.

Now that they do know, prosecutors plan to go into court Monday and ask Judge Michael Gordon to boost the bond to $100,000.

Until then, Gilbert remains out of jail, free to drive the streets of Phoenix but hopefully not the sidewalks.

Someday, somebody will have to explain that to me.

Then maybe they can explain it to Quinton.

Distracted driving should be against the law

Bob Schuster, Oct. 3, 2007, The Arizona Republic
Two years after his teenage son’s senseless death, Don Casey still can’t let go. He won’t let go.

And I can’t blame him.

I live in his neighborhood. I’ve spoken with him several times these past two years. I’ve also spoken with neighbors and members of his church who are worried about him, who wish he would “let go” and “move on.”
Sean Casey was a 14-year-old student and football player at Rhodes Junior High School in Mesa when he was struck and killed Sept. 23, 2005, while riding his bike across Baseline Road in a crosswalk. Angela C. Cruz, the woman who ran a red light and killed Sean, told police that she was distracted by papers she was reading.

She could have been chatting on a cellphone. Or text messaging. Or doing any number of dozens of things irresponsible drivers do these days as they endanger their own and others’ lives.

At the time, police didn’t charge her with negligent homicide because she was not impaired. That is what Mesa’s police spokesman told me. She was flipping through papers while zipping through a school zone, ran a red light and killed a 14-year-old boy. But because she wasn’t drunk, she was given only a traffic citation for running a red light, having no proof of insurance and driving on a suspended registration.

Ten months later, she was cited for driving on a suspended license.

It was only after she blew off the traffic tickets, failing to pay a fine and attend traffic school that a judge finally got stern with her. Last March, 18 months after Sean’s death, Cruz was indicted for negligent homicide. She’s scheduled to stand trial Dec. 10.

No wonder Don Casey hasn’t been able to let go.

He told me a year ago that he didn’t want the woman who killed his son to spend years behind bars. Just a few months. Just to send a message that you can’t act that irresponsibly while behind the wheel, kill someone, and walk away with just a slap on the wrist.

After that conversation, I spoke with Phoenix attorney Steve Twist, who wrote Arizona’s criminal code while working for the Arizona Legislature nearly 30 years ago. He said the woman’s distracted behavior while driving clearly fit the intent of the “criminal negligence” portion of the code.

But distractions are so common these days that few people consider them negligent, let alone criminal, even when the distracted person is behind the wheel. Multitasking is all the rage, even while driving a 2,000-pound vehicle.

So what’s the solution?

Arizona needs a “distracted driving” statute.

We have a reckless driving statute. We have an aggressive driving statute. We have a driving-under-the-influence statute.

We need a distracted driving statute because Arizona’s criminal negligence statute hinges on what a “reasonable person” would consider negligent. Sadly, just as common sense is dead, so is the “reasonable person” test. We need to spell out negligence in the law.

The statute needs to include a laundry list of distractions that take too many motorists’ attention from the road. Text messaging, cellphone yakking, eating, shaving, putting on makeup, changing CDs, etc., etc., plus anything else that takes the motorist’s attention off their primary responsibility to control their vehicle.

The law needs to make clear that multitasking is not always a good thing.

Not when you’re behind the wheel.

Because doing anything other than paying attention to the road ahead and your responsibility to the safety of yourself, your passengers and others on the road should be illegal.

Come on, Legislature, put it into law.

Don Casey might finally be able to let go.

The rest of us will be able to sleep a little easier, too.

Bob Schuster is Southeast Valley editorial page editor for The Arizona Republic

Homicide charge dismissed against driver in boy’s death

Arizona Republic, The (Phoenix, AZ) – Wednesday, April 9, 2008
Author: Jim Walsh, The Arizona Republic
A Maricopa County Superior Court judge quietly dismissed the negligent homicide charge against a driver who struck and killed a 14-year-old Mesa boy two years ago.Judge George Foster ruled that there was no likelihood that prosecutors could obtain a conviction against Angela C. Cruz .

He dismissed the charge with prejudice, meaning it cannot be filed against her a second time.

Michelle Grashel, a deputy public defender representing Cruz , had argued in a brief that the negligent homicide charge amounted to double jeopardy, a violation of Cruz ‘s rights, because she had already been prosecuted civilly for the same actions that resulted in the Sept. 23, 2005, death of Sean Casey .

Sean , a Rhodes Junior High School ninth-grader, was in the crosswalk when Cruz ran a red light at Baseline and Longmore roads, police said. She admitted to police that she was glancing at paperwork and did not see Sean nor the color of the light.

Grashel noted that Mesa City Prosecutor John Pombier already prosecuted Cruz for failure to stop at a red light, causing the death of another while failing to stop for a red light, having no proof of insurance and displaying a license plate while her registration was suspended.

She said police could have pursued negligent homicide charges immediately following the collision but decided not to do so because Cruz was neither impaired nor speeding at the time of the fatality.

Sean ‘s father, Don Casey , had lobbied for prosecutors to charge Cruz criminally, saying a fine in exchange for his death is insufficient punishment.

But prosecutor Rene McGregor moved to drop the charge without prejudice in January, saying that based on interviews of civilian witnesses, “there is no likelihood of conviction for the charges in this matter.”

PROSECUTOR: DRIVER DISDAINED SYSTEM

Arizona Republic, The (Phoenix, AZ) – Friday, November 3, 2006
Author: Jim Walsh, The Arizona Republic
Mesa’s city prosecutor will seek jail time for a young woman who “thumbed her nose” at City Court when she failed to pay her fines, perform community service or attend a traffic school after she was found to have caused the death of a 14-year-old boy last year.

The driver’s license of Angela C. Cruz was suspended in February when she failed to make $100-a-month payments on a $3,867 fine for civil traffic violations stemming from the Sept. 23, 2005, death of Sean Casey , a Rhodes Junior High School student, who was crossing Baseline Road on his way home from football practice.

Mesa police cited Cruz , 21, again Aug. 25 in the 600 block of South Dobson Road for driving with a suspended license, having an expired automobile registration and having no insurance. She is scheduled to make a preliminary appearance Friday before Judge Michelle Lue Sang.

“Due basically to her thumbing her nose at the court, I think jail time is required,” said Mesa City Prosecutor John Pombier. “She’s done absolutely nothing she was required to do.”

In that 2005 case, Cruz pled guilty to running a red light, causing the death of another while failing to stop for a red light, having no proof of insurance and displaying a license plate while her registration is suspended.

Municipal Court Judge James Hazel Jr. sentenced her in December 2005 to 200 hours of community service, attending the Traffic Survival School sanctioned by the state Division of Motor Vehicles within 45 days and the fine.

Cruz was not speeding or impaired by alcohol or drugs, according to police.

Mesa police submitted its investigation to the Maricopa County Attorney’s Office last week for a review of possible felony charges, but made no recommendations.

Cruz declined comment Wednesday. “I don’t like talking about something that I’m still dealing with. It was very hard and it continues to be very hard. That’s the only thing I can say,” Cruz wrote in an email to a reporter.

On the latest charges, Cruz faces as long as 180 days in jail and as much as a $2,500 fine, Pombier said, adding that his plea offer would include jail time.

5 thoughts on “Double Jeopardy and Flawed Logic”

  1. http://www.azleg.gov/ars/13/00102.htm
    C. This title does not bar, suspend or otherwise affect any right or
    liability to damages, penalty, forfeiture or other remedy authorized
    by law to be recovered or enforced in a civil action, regardless of
    whether the conduct involved in the proceeding constitutes an offense
    defined in this title.

    Also, 28-701.02
    A. A person shall not: […]
    B. A person who violates subsection A of this section is guilty of a
    class 3 misdemeanor.
    C. A person charged with a violation of this section may not be issued
    a civil complaint for a violation of section 28-701 if the civil
    complaint alleges a violation arising out of the same circumstances.

    If a civil traffic citation normally precluded a criminal charge, then
    subsection (C) would be redundant and unnecessary verbiage. Actually,
    there’s a subtlety here. Normally, I believe, “double jeapordy” only
    precludes multiple, complete *prosecutions*. I believe it’s allowed
    to eg. initiate prosecution for a felony, drop the charge, and persue
    a misdemeanor. That’s exactly what’s (should be) happening with
    Angelina S…-Matthews.

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