Neg operation and OUI
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Interesting, i would like to know how this flies also... sounds like a good thing to do.
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.
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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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.
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?
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.
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?
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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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... :shock:
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... :shock:
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 :evil: .
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 :jestera: and it taught me to write better as I refuse to embarrass myself and the department like that again. \
/
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 :jestera: and it taught me to write better as I refuse to embarrass myself and the department like that again. \
/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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