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Posted by: drewpopo

Has anyone charged negligent operation in conjunction with OUI. If you review the law it seems like it would fly. I have been told that some courts suggest charging this way but I do not know what courts.

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Posted by: Wolfman

For "straight" OUI I have not charged negligent operation; however if there is a crash, an operator passed out cold behind the wheel, or other specific dangerous aspect brought about by the drunkeness, I have added the charge in the past and it has more or less flown. Also good to have as a backup in case the OUI gets beaten.

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Posted by: RPD931

Quote:

Originally Posted by drewpopo @ Tue Oct 12, 2004 6:08 pm Has anyone charged negligent operation in conjunction with OUI. If you review the law it seems like it would fly. I have been told that some courts suggest charging this way but I do not know what courts.

Interesting, i would like to know how this flies also... sounds like a good thing to do.

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Posted by: Opie

We typically use OUI and OTE (Operating to Endanger) as a std. for OUI arrests on the basis that the act of OUI is Neg. Oper.

It seems to fly most of the time in District Court and when it doesn't it's the jury who finds them NG, not the ADA or Judge throwing it out.

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Posted by: M. C. Hess

I too have charged negli. operation and OUI (plus a few other charges), especially when the operator in question is a real danger to those on the road, and in the smaller towns where there are no marked lanes and the knucklehead in question almost hits me on the other side of the road.

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Posted by: drewpopo

LED shows acase law from 1982 which states that red glassy eyes. the odor of an alcohlic beverage and a moving violation would leave a reasonable person to believe that the person would be negligent. In my minde is driving cocked negligent?

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Posted by: darkknight750il

If you want Neg op and OUI to both fly, make sure in your report both charges are identified by seperate actions, if you charge both for the same actions an ada I talked to said the defendant may get convicted of both but only punished for one otherwise its a violation of double jeopardy in the constitution.

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Posted by: Burner1

What Darkknight said...OUI and Negligence separate, spell it out in your report though on the negligence : duty, breach, causation, damages. etc...

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Posted by: Dan H

like darknight said
I would see that you would give the extra help to the court to mention them seperately. In my mind if you pull over an OUI even the slightest thing he has done should be arguable for OTE. Crosses the center line 1000 feet in front of you while you are traveling toward him, any marked lanes especially if someone else is around, speeding. Shouldn't most moving violation while drunk be considered OTE?

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Posted by: dcs2244

I did a 'fatal' recon for a local department involving OUI: the thing was a six day nightmare because the people in the clerks office didn't right up the charges correctly: the complaint app was right, but not the court's paperwork...anyway, we lost the negligent charge. It didn't help that the judge was a notorious "111B"...

If you are going to try it, hang around and make sure the official charges are correct...the court was saying it was a "software glitch". I reckon it'd be too bad if some one actually had to type a paragraph instead of hitting a button...

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Posted by: darkknight750il

Dan, you're right most violations can be cited as OTE while OUI. The report is what makes the OTE/OUI and other cites stick. For example OUI observed subject driving 10 under speed limit, crossing fog line and center line 3 times in 200'. OTE observed subject while crossing center line almost caused head on collision and subject failed to stop for stop sign. If your report lumps everything together the multiple major cites are less likely to stick because it can be argued that the perp is being punished twice for the same thing which violates his constitutional rights .

Remember the more details you include the better and the easier it is to testify. I had an OUI where I just noted odor of alcoholic beverage not glassy/bloodshot eyes, flushed face, slurred speech, etc. On cross exam I couldn't remember any signs of impairment just the odor and I couldn't testify if it as strong/weak,etc. I looked like an and it taught me to write better as I refuse to embarrass myself and the department like that again. \/

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Posted by: EchoUnit

Just about every OUI case that my department deals with includes the Neg. Op. charge. The fact that the operator is operating under the influence of alcohol portrays the act of negligence.

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Posted by: Wolfman

Funny coincidence, I had one last night - guy had left work, had a few pops, then got "disoriented" on his way home and wound up quite literally crashing and burning. An anonymous Samaritan dragged the guy out of his burning car and left, thus saving his life.

I'm talking to him, turns out he wa a diabetic and his blood sugar was all messed up and he alleges he blacked out due to the blood sugar problem. Verified at the hospital, no idea what the ETOH was.

So, I charged him with both the OUI and OTE: OUI since it appeared that the consumption of alcohol was a contributing factor in his inability to operate safely (if for no other reason than perhaps it prevented him from recognizing the onset of a diabetic condition), and OTE due to the fact that he lost consciousness while driving.

We'll see how it goes from here.

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Posted by: darkknight750il

Looks like a good stop VOR. That's the point I was trying to get at, even if the guy proves blood sugar was the cause of accident not intoxicating liquors the OTE will should still stick because in your report it says he passed out, not he's drunk as reason for the OTE charge, giving the court two chances instead of one.

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