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Main Page Operating to Endanger v. Reckless Operation
(Click here to view the original thread on the MassCops Message Board)

Posted by: Delta784

After a bazillion requests, our NIBRS system still doesn't have Operating to Endanger as one of the offenses (although shellfish violations and tampering with sealed weights & measures are there), so to streamline things I've just been charging Reckless Operation.

Has anyone seen any practical difference in how the courts treat these similar offenses?

Posted by: Gil

lol you must have QED... We had the same problem as well as revoked license also among the missing.

We now have OTE Reckless or OTE Negligent.

Not so much a problem with the courts but depending on the CO it varies. Some are of the feeling that just because you charge OUI Liquor negligent operation should only be charged if there was some sort of operation that endangered the lives of the operator or others.

I think getting behind the wheel shitfaced would cover that but I'm just a peon patrolman.

All I know is that it appears to be less difficult to prosecute OTE Negligent than OTE Reckless. I usually go with neglagent unless the bozo was a real ass clown and drove like a nut.

Posted by: Wolfman

Something I heard a long time ago...

Rearending another car while putting on makeup: negligent.
Rearending another car while playing bumper tag: reckless.

Kind of boiled it down to whether the action was casued by a deliberate action (reckless) or act of neglect or failure to take proper care (negligence).

Based on that, you'd think that deliberately ingesting intoxicants and then attempting to drive a car would be more reckless than negligent.

Posted by: dcs2244

Delta, does your NIBRS system have "exceeding creel limit"...?

Posted by: 94c

Quote:

Originally Posted by Delta784

After a bazillion requests, our NIBRS system still doesn't have Operating to Endanger as one of the offenses (although shellfish violations and tampering with sealed weights & measures are there), so to streamline things I've just been charging Reckless Operation.

Has anyone seen any practical difference in how the courts treat these similar offenses?

we have this glitch, and I can't remember the word, but when you type it you default to "human trafficking".

Posted by: Macop

I charge OTE (reckless) with my OUIs. Like wolfman suggested getting drunk is a purposeful, deliberate action. While being negligent, I would think could be driving your car with some sort of a mechanical problem and you knew about it and have an accident. But one could argue either way all night long.

Posted by: j809

Reckless or Negligent. It is very difficult to prove Reckless, very easy to prove negligent, same penalties, same chapter and section.

Posted by: 94c

Quote:

Originally Posted by j809

Reckless or Negligent. It is very difficult to prove Reckless, very easy to prove negligent, same penalties, same chapter and section.

I would think it would almost be impossible to charge reckless operation just because someone is OUI. (without some intentional act during operation).

Most guys just go with the negligent operation because that is what our court suggests.

And it looks like MACOP got busted by the teacher.

Posted by: chief801

Some courts (judges and ADA's) view charging reckless or negligent operation w/OUI as duplicitous, as the charges are lesser included offenses. For example, for a murder you don't charge assault and battery. Reckless or negligent operation pertains specifically to how the vehicle was operated, not the state of the operator. I have had it explained to me that you can be totally stiff and as long as the vehicle operation doesn't create any other hazard, you don't have OTE. The standard is, would the person be charged with OTE for the manner in which the vehicle was operated if they weren't drunk. If the answer is yes, then charge it. Weaving or failing to signal wouldn't necessarily be OTE, so you don't charge for it just because someone is drunk. Another example given to me was, if a bystander saw the car go by, would they say it was being operated recklessly or negligently. Again, depends on your court.

Posted by: 94c

Quote:

Originally Posted by chief801

Some courts (judges and ADA's) view charging reckless or negligent operation w/OUI as duplicitous, as the charges are lesser included offenses. For example, for a murder you don't charge assault and battery. Reckless or negligent operation pertains specifically to how the vehicle was operated, not the state of the operator. I have had it explained to me that you can be totally stiff and as long as the vehicle operation doesn't create any other hazard, you don't have OTE. The standard is, would the person be charged with OTE for the manner in which the vehicle was operated if they weren't drunk. If the answer is yes, then charge it. Weaving or failing to signal wouldn't necessarily be OTE, so you don't charge for it just because someone is drunk. Another example given to me was, if a bystander saw the car go by, would they say it was being operated recklessly or negligently. Again, depends on your court.

Another reason not to merely charge both, Is the courts will actually drop the OUI for a plea to the negligent operation. So guys are told not to charge OTE unless it's like you explained above.

Posted by: Macop

Where I work we usualy charge OTE automaticaly with OUIs, but every P.D is different. Hell the shit head gets a free ride, room and board and the cost and hassel of the whole process, and we get the OT. It all works itself out in the long run!!

Posted by: NEPS

Regarding QED: It has the dumbest search engine there is for offense titles. Search for the offense "Assault and Battery" and you will find nothing. Search for "A & B" and you will find nothing. Search for "A&B" and then you will get the offense you are looking for. In trying to charge the offense we know as "Operating to Endanger" I would suggest Delta try searching in the QED system for "Negligent Operation" as in "Negligent Operation of Motor Vehicle" which is how the District Court Complaint Manual titles the offense. The QED/NIBRS titles are typically the same as the the Complaint Manual titles. (The complaint code, which is the real key as far as what the clerk's office looks at to print out a criminal complaint, is "90/24/E.")

The criminal complaint manual, by the way, can be found online here:

http://www.mass.gov/courts/courtsand...nt_manual.html

Regarding "reckless" vs "negligent:" Always use negligent operation. It is the same statute, c. 90, s. 24(2)(a), with the same potential penalty, but "negligent" requires only a showing that a driver failed to excercise the caution of an ordinarily prudent driver while "reckless" operation requires a showing of something closer to "conscious disregard of a substantial danger" or "wanton conduct" and so on.

As far as the decision to charge negligent driving along with an OUI, I would look for something in addition to the OUI, like an accident or a pursuit or some really f'd up operation, to add the negligent driving charge. But that is just an opinion.

Posted by: Delta784

Quote:

Originally Posted by NEPS

Regarding QED: It has the dumbest search engine there is for offense titles. Search for the offense "Assault and Battery" and you will find nothing. Search for "A & B" and you will find nothing. Search for "A&B" and then you will get the offense you are looking for. In trying to charge the offense we know as "Operating to Endanger" I would suggest Delta try searching in the QED system for "Negligent Operation" as in "Negligent Operation of Motor Vehicle" which is how the District Court Complaint Manual titles the offense.

I learned my lesson on searching with QED, I always use the chapter & section, but Operating to Endanger simply isn't in our system. It's good to know that there are all sorts of Brockton city ordinances & Whitman town by-laws, but no OTE......

Quote:

Originally Posted by dcs2244

Delta, does your NIBRS system have "exceeding creel limit"...?

I've never seen it, but it certainly wouldn't surprise me if it did. The QED cluster is the worst piece of software I've ever used, it seems totally geared to producing numbers for the Feds.

Posted by: Gil

Quote:

Originally Posted by Delta784

I've never seen it, but it certainly wouldn't surprise me if it did. The QED cluster is the worst piece of software I've ever used, it seems totally geared to producing numbers for the Feds.

Hey Delta did you lose the first couple of hundred incidents on 01/01/07 like we did? lol The system Quickly Erases Data reissued the 2006 incident numbers, quite a cluster fu#k

Posted by: Delta784

Quote:

Originally Posted by Gil

Hey Delta did you lose the first couple of hundred incidents on 01/01/07 like we did? lol The system Quickly Erases Data reissued the 2006 incident numbers, quite a cluster fu#k

I haven't heard, but now that you mention it.....the journals they read at roll calls a couple of weeks ago had 2006 dates on them......

Posted by: phuzz01

Up here, we would charge reckless driving or negligent driving in addition to driving while intoxicated only if the operation in question would be considered reckless or negligent if the person were not drunk.

For example, I had a drunk who was screwing around with his buddies, swerving the steering wheel to the right and left. He lost control and hit a tree. He ended up blowing a .24. I charged him with reckless driving in addition to the DWI because it was reckless even without the alcohol involved.

As it turned out, the County Attorney indicted him for felony reckless conduct with a deadly weapon, in addition to the DWI. So it all worked out.

Posted by: NEPS

Delta 784,

What we call "operating to endanger" is called by QED and the complaint manual "Negligent Operation of Motor Vehicle." That's why you won't find OTE in QED.

Posted by: MM1799

Quote:

Originally Posted by phuzz01

For example, I had a drunk who was screwing around with his buddies, swerving the steering wheel to the right and left. He lost control and hit a tree.

It would've been a lot more fitting had he a made a hasty exit through the windshield.
Ah did I say that? Oops! To our civilian readers: I am just kidding save the nasty PMs.

Posted by: phuzz01

Quote:

Originally Posted by MM1799

It would've been a lot more fitting had he a made a hasty exit through the windshield.

While there was no such luck there, he WAS driving a work van full of unsecured tools. When the van came to a "sudden arborial stop," dozens of wrenches, hammers, and assorted other goodies became high speed projectiles, and I'll be damned if one of the idiots didn't get doinked right in the noggin by a flying tool.

Posted by: dcs2244

That's excellent, phuzz...the citizen's new nickname: "hammerhead"

.</IMG>

Posted by: 94c

Quote:

Originally Posted by phuzz01

Tool as in work equipment?
Or
Tool as in a knucklehead buddy?

Posted by: phuzz01

Quote:

Originally Posted by 94c

Tool as in work equipment?
Or
Tool as in a knucklehead buddy?

I meant as in work equipment, but really it was both: the TOOL was struck by a flying TOOL.

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