Cover Up DUI Accident with Black Ice

You may have seen the pictures released earlier this week of Huntington Beach covered in a white blanket of hail. Weather like that is nearly unheard of out here in sunny California. So we really don’t get some of the same stories you might hear in, say, New Jersey. In one such story, two men tried to use the icy conditions to cover up a DUI accident. Brian Byers, 24, from Sparta, New Jersey, allegedly ran a stop sign and hit a guardrail with his black 2001 BMW. It is alleged that, following the collision, Byers drove the BMW to his house, then back to the scene with 20 year old Alexander Zambenedetti, a friend of Byers’. When they arrived, the two of them dumped 5-gallon buckets of water onto the road near the collision to create black ice. The plan, according to investigators, was to create the black ice so that Byers could claim that it caused the accident, not Byer’s drunk driving.Unfortunately for the duo, an officer spotted Byers walking toward an idling car in the middle of the road. Zambendetti was found in the driver’s seat without a shirt even though the temperature was one degree. He told the officer that he had taken his shirt off because it had gotten wet when he fell.The officer also noticed two 5-gallon buckets in the car with water still in them. Byers confessed the plan to officers. Skid marks were also apparently visible through the thin layer of ice. Byers was arrested and charged with driving under the influence, careless driving, failure to stop at a stop sign, leaving the scene of an accident, failure to report an accident, and disorderly conduct. Byers was charged with disorderly conduct because the ice was so bad that the Department of Public Works had to dump a half ton of salt on the street to make it safe. Zambenedetti was also arrested charged with driving under the influence after he failed several field sobriety tests. He was also charged careless driving and failure to wear a seatbelt. They were clever enough to concoct this creative scheme, even though it didn’t work, but not smart enough to realize that they shouldn’t have been drinking and driving in the first place. 

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DWI for New Jersey teen after single vehicle accident

Police in New Jersey have reported that a 19-year-old woman has been charged with driving under the influence of alcohol after she was involved in a one-car accident during the early morning hours of Feb. 13. After being taken into custody by Stafford police officers, the woman was released to her sister. The case will be heard in Stafford Municipal Court.

The accident took place at the intersection of East Bay Avenue and Route 9 in Ocean County at approximately 2:12 a.m. According to a police report, the woman lost control of her vehicle and crossed the roadway's northbound lanes before striking and downing a traffic signal pole. Responding police officers determined that the woman was operating while under the influence, and she was subsequently charged with DWI as well as a number of traffic violations.

In addition to Stafford police officers, the accident scene was attended by personnel from the Stafford Fire Company and the New Jersey Department of Transportation. NJDOT workers replaced the damaged traffic signal pole while first responders controlled traffic flow. The woman and her passenger both escaped the accident without injury.

The consequences of drunk driving can be severe in New Jersey for drivers under the age of 21. The state has a zero tolerance policy for underage drinking and driving, and younger drivers may face DWI charges if their BAC is .01 percent or above. A criminal defense attorney may seek to assist younger individuals in this situation by seeking to have DWI charges reduced or dismissed during discussions with prosecutors. One way could be to point out the young driver's previous record of good behavior and their genuine feelings of remorse over the incident. It is also possible in some cases to dispute the results of breath or blood tests.

Source: Shore News Network, "19 year old woman charged with DWI in Stafford", Feb. 13, 2015

Tags: DWI charges

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New Jersey man charged with DWI after accident

Police charged a 44-year-old male driver with a DWI after they responded to a call regarding a car accident at about 1:42 a.m. on New Year's Day. When police arrived at Quail Ridge Drive in Plainsboro, they found an abandoned Ford Escape that had crashed into a tree. After finding the man, he was taken to Princeton Medical Center for treatment of his injuries.

Authorities charged the man with leaving the scene of an accident and failure to report an accident in addition to the DWI charge. He was also charged with reckless and careless driving, failing to wear a seat belt and failing to maintain his lane. Police released the man to hospital staff, pending his next court appearance. There were no other details given as to why police believed the man was under the influence of alcohol.

Those who have been charged with a DWI may face serious penalties. If convicted, it may be required for a driver to pay a fine or spend time in jail. A driver may also have his or her license suspended or revoked. Probation, community service or house detention are other possible penalties in a drunk driving case.

Drivers who are facing drunk driving charges may wish to speak to a DWI defense attorney. An attorney may take steps to cast doubt on the fact that a driver was under the influence of alcohol after an accident or at the time of a traffic stop. A lawyer could argue that a test was taken incorrectly or that the machine used to take the test was malfunctioning. This argument could be enough to have drunk driving charges thrown out or reduced as part of a plea deal.

Source: NJ.com, "Injured Plainsboro man charged with DWI after cops find his wrecked SUV on New Year's Day", Anthony G. Attrino, January 02, 2015

Tags: penalties

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When is an Accident DWI Not Always an "Accident?"

tag:blogger.com,1999:blog-669108141607785885.comments2013-12-01T23:30:43.447-08:00Lawrence Newmanhttps://plus.google.com/115266711474188538797noreply@blogger.comBlogger0125

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Accident Cases: The EDR is Crucial

March 16th, 2014 Allen Trapp Posted in Current Events, Defense Experts, Hiring a Lawyer |

An item that should be obtained as quickly as possible in an accident case – especially one involving death or serious injury – is the event data recorder (EDR). These devices can store data including engine speed, vehicle speed, airbag deployment, seatbelt use, and the state of the brakes before and during a crash. While these devices have aided insurance adjusters and researchers, they have also served as electronic witnesses that have sent drivers to jail. By the mid-1990’s when all automobiles had an airbag, microprocessors, solid state memory, and in-car networks gave designers all the tools they needed for capturing system performance and driver reaction data during a crash. One of GM’s early data recorders was responsible for the recall of more than 850,000 Chevrolet Cavaliers and Pontiac Sunfires for inadvertent airbag deployment. The early EDR’s captured data for approximately five seconds before a collision. However, the newer models record data for forty to fifty seconds before impact.

To read this information special equipment is needed, and manufacturers have not adopted the same stance vis-?-vis the ease with which the data from their automobiles may be downloaded. GM, for example, will not share information about a crash event except: (1) With the consent of the vehicle owner or lessee; (2) In response to an official request of police or similar government office; (3) As part of GM’s defense of litigation through the discovery process; (4) As otherwise required by law. Mercedes and BMW have designed their EDR’s so they cannot be deciphered unless the manufacturers cooperate in a particular case.

Documenting driver digressions is the most controversial application of the crash data recorders. A recorder can, for example, reveal if a driver was speeding or braking before an accident. Although it is generally agreed that the recorded information belongs to the vehicle owner, that does not mean it can always be easily concealed. Many motorists do not even know that their vehicles have the recorders and that disclosure of information from the recorder may be an invasion of privacy. Nevertheless, insurance companies and lawyers have frequently been successful in their attempts to obtain court orders to extract data after an accident. One of the most popular pieces of information is the crash pulse information from the onboard accelerometers that activate airbags. Information about this change in velocity and direction of force may indicate the cause of the crash or the severity of injuries.

Vetronix Corporation was one of the first vendors to offer a CDR (crash data retrieval) system that downloaded pre-crash and crash data from the air bag module of most GM and Ford models to a laptop computer. This CDR system included hardware and Windows based software to present crash data in graphs and tables. Depending on the make and model of the vehicle, the CDR program retrieved vehicle speed, engine speed, brake status, throttle position, seatbelt usage, whether the passenger side airbag was enabled, and other data. Bosch offered a competitive product and acquired Vetronix several years ago.

The attorney should exert every effort to ensure that the client’s vehicle is secure. The data may be lost due to an inadvertent police “error” such as starting the car, connecting it to a power source, or improperly downloading the data. Any of these events can “erase” the EDR’s memory, and with that erasure may go your  chances for an acquittal. The data may be downloaded from one of three points on a large number of models, including the DLC (data link connector or direct link connector) plug under the dash, the airbag control module, or the PCM (primary control module). Although the “black box” can be removed without necessarily damaging the instrument, most engineers see no need for removal and perform their downloads with the EDR still in the automobile.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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Actual Physical Control in Orlando DUI Accident Cases

The state may establish actual physical control in an Orlando DUI case through circumstantial evidence, including expert witness testimony.

In every Orlando DUI case, the government must prove that

The defendant drove, or was in actual physical control of a vehicle, andWas under the influence of either alcohol beverages or controlled substances to the extent that the driver’s normal faculties are impaired, or had a BAC over .08

See Standard jury instructions in Orlando DUI cases (Word version)

In most Orlando DUI cases, the State can prove that a defendant was the driver of the vehicle because, well, the police officer sees the person driving the car. Easy. No problems at all.

But if the DUI case arises out of an accident, proof of actual physical control isn’t as easy to establish.

When the DUI investigators from the Orange County Sheriff, Florida Highway Patrol, or Orlando Police are investigating a DUI accident, they usually don’t arrive on scene contemporaneously with the accident. Depending on other issues in the area, it may be 20 minutes, 30 minutes, even hours before the DUI investigators arrive.

By the time they arrive, the drivers of the vehicles involved have usually gotten out of their cars to inspect the damage or to exchange information.

Unless civilian witnesses are available to testify that they saw the defendant driving, there may not be any direct evidence placing the defendant behind the wheel (and in actual physical control) of an operable vehicle.

Without direct testimony, the State must rely upon circumstantial proof to establish that the Defendant actually drove the vehicle. However, the state may prove this through expert testimony, as they did in West v. State, 745 So.2d 414 (Fla. 5th DCA 1999)

Orlando-DUI-circumstantial-evidence-of-driving-West-v-State-745_So2d_414-Fla-5th-DCA-1999

photo credit: Jean Henrique Wichinoski via photopin cc

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20-Year-Old Woman Given 10 Years for Deadly New Year’s DUI Accident

By guest-writer
A 20-year-old Florida resident was recently sentenced to 10 years in prison for killing two men in a felony DUI accident on New Year’s Day 2010, according to a report from the Orlando Sentinel.
Earlier this year, Nieves pled guilty to two counts of DUI manslaughter and had waited several weeks for the judge to make a determination about the length of her sentence.
Sources indicate that, at the time of the accident, Toni Nieves was already on probation for a previous drunk driving incident when she struck and killed 18-year-old Bradley Summersill and his 22-year-old friend, Brian Walker.
Summersill and Walker had been driving to a nearby town to pick up a friend’s mother when their car was struck by Nieves’ vehicle.
The sentencing was fraught with emotion, as the mothers of the two men held up pictures of their dead sons while Nieves refused to lift her eyes to look at the pictures.
Summersill’s mother made an emotional appeal to Nieves, telling her that she “should have never been on the road that night,” as she fought back tears.
In response to the emotions displayed by the families of the victims, Nieves’ stepfather, Frank Petrillo, later offered an apology on her behalf, saying there was a “lot of anguish here and a lot of feeling” and noting that he and his family were deeply sorry for the tragic result of the accident.
At the time of the fatal DUI accident, Nieves was already serving probation for a previous DUI, and sources say that the terms of her probation prohibited her from driving, much less driving while under the influence of alcohol.
Sources say that Nieves’ blood alcohol content was measured at 0.189 percent, which is significantly higher than the legal limit of .08. She claims that she saw the other vehicle’s taillights and, instead of hitting her brakes, accidentally hit the gas pedal.
During the court proceedings, Nieves’ family claimed that Summersill, the driver of the other car, should share a portion of the blame because he allegedly pulled in front of Nieves’ car and reportedly had a blood alcohol level of 0.10 percent after the accident.
The judge may have taken this mitigating factor into consideration when sentencing Nieves, because the young driver faced a maximum sentence of 30 years in prison.
Instead, Nieves will serve a decade in prison, which will be followed by five years of court-supervised probation. In addition, Nieves will eventually have to pay $20,000 in restitution to the families of the two sons for the cost of their funerals.

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Chicago DUI Accident Kills Law Student at Northwestern University

By guest-writer
The tragic death of a law student at Northwestern University has led to drunk driving charges for a 21-year-old Illinois man who allegedly struck the student with his vehicle at a Chicago street corner.
Last week, the Chicago Tribune reported that Bianca Garcia struck 32-year-old Jesse Bradley while he was walking in Chicago’s Old Town neighborhood, apparently in an effort to seek a late-night snack.
Sources say that Bradley was walking across a crosswalk on LaSalle Street when Garcia’s Jeep Liberty ran directly into him at about 2:30 a.m. on a Sunday morning. Doctors at Northwestern Memorial Hospital declared Bradley dead at 2:54 a.m.
After the accident, Garcia reportedly fled the scene of the accident by driving the wrong way down a one-way street, but police officers pulled her Jeep over a few minutes after the collision.
Police officers were suspicious of the car because it had serious damage to its front end, including a missing headlight, and there was a significant amount of smoke coming from the engine compartment, according to the police report.
After police pulled her over, Garcia refused to submit to a field sobriety test or a breathalyzer test, but this did not prevent Chicago prosecutors from bringing DUI charges against her.
Sources indicate that Garcia has been charged with felony aggravated DUI, misdemeanor DUI, and misdemeanor reckless driving. Police also cited her for driving the wrong way on a one-way street, and for driving with a license.
After the accident, Garcia decline medical attention, but sources say that she eventually was treated for injuries, along with a 20-year-old woman who was riding in the backseat of the Jeep, at Northwestern Memorial Hospital.
Sadly, Bradley was beyond the point where treatment would help. According to the Chicago Tribune, Bradley had taken a semester off from law school, but was planning to complete his degree this summer before pursuing a career in corporate law.
As he awaited the completion of his degree, Bradley had taken a part-time job at a local Starbucks, which was partially due to his self-admitted addiction to coffee. Bradley had lived in Chicago for about five years.
In a recent interview, Bradley’s sister expressed feelings that were shared by the rest of his family. In her words, “it’s just bizarre. It really shows you how life can change in an instant. He was healthy. He was living. And he died. He should not have died at 32.”

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Roslindale Man Is Charged With Leaving The Scene Of An Accident And Vehicular Homicide In Boston – Attorney Sam’s Take

A Roslindale man has allegedly learned a criminal justice lesson on the topic of hit-and-run accidents. Namely, you can hit. You can run. But you cannot hide.

Colin Ratiu, 23 (hereinafter, the “Defendant”) is the=is unfortunate driver according to the Commonwealth . He was arraigned in court yesterday after pleading “not guilty” to charges of leaving the scene of an accident after causing death, and motor vehicle homicide by negligent operation.

The accident happened in November. The Defendant was using someone else’s car and is said to have explained the damage on the vehicle by saying that when he had swerved to avoid a skunk, he ended up hitting...”something”.

In fact, what the car actually struck was a 24-year-old Northeastern University graduate driving home in a scooter. The scooter was thrown about 150 feet. The graduate was killed.

“He then proceeded to drive away without stopping,’’ the prosecutor told the judge yesterday.

Homicide detectives began the investigation immediately, but it was not until 89 days after the accident that an anonymous tip led them to the car that had allegedly been driven by the Defendant that fateful night. The damage on the vehicle was consistent with what they were looking for. Upon questioning, the vehicle’s owner told the detectives about the Defendant and his skunk story.

When the police went to question the Defendant, he is reported to have said, “I have a lawyer, and I don’t want to talk about it.’’

In court, the defense did not address the allegations, but pointed out that members of the Defendant’s family were in court (showing strong community ties) and that the Defendant had had no prior criminal record and had not left the state and answered to police when he knew they were looking for him.

Bail was set at $7,500 cash.

Over my years as an experienced Boston criminal defense attorney, I have been contacted by various frightened people who seem to be exploring the idea of sitting back and ignoring the fact that the police or prosecutors are investigating them. My advice to them is generally the same as what I tell you. Get an experienced defense attorney involved as soon as possible. When you do, you can at least tell the police that you are only too happy to speak to them, but they have to get the green light from your attorney first.

This way, if no statement is given, it is the defense attorney who is the bad guy, not you.

Please note the difference between “go through my attorney, but I have nothing to hide” and “I have a lawyer, so get lost.”

Anyway, many of these calls from either people with outstanding arrest warrants or who have been involved in some kind of accident…and then kept going.

Often, these individuals figure that if the police have not already come banging down their door, then they are probably home free and so do not need any help.

This is generally a mistake.

First of all, as you can see from this story, the investigation does not stop simply because the driver is not yet caught.

Second, in most cases, particularly if there is damage on the vehicle, the more you wait the worse it will be. Every case is different, of course. However, if you contact the police, at least you can take some of the sting out of the leaving the scene. Perhaps you did not know you hit something until you got out of your car and saw the damage.

“But, Sam, what if you do not know if it was a car bumper or a living person you hit?”

It really does not matter in terms of leaving the scene. It is illegal whether a person was injured or killed or if it was simply property damage that was the result.

“What if you can tell that, at worse, it was a little scratch you may have left behind?”

It does not matter. The law indicates that any damage, “however slight” counts. You see, once you leave the scene, the damage is not really the issue anymore. It is the fact that you left the scene.

And, yes….the Commonwealth takes these cases quite seriously, even if the damage was slight.

So, if only to minimize damage to your liberty, it is best to get an experienced criminal defense attorney involved as soon as possible.

If you would like it discuss such a matter with me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, please go to : http://www.boston.com/news/local/massachusetts/articles/2011/02/15/suspect_is__held_in__fatal_nov__hit_run/?p1=Local_Links

View the original article here

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Massachusetts Drunk Driver Admits Guilt But Is Not Responsible For Vehicular Accident- Attorney Sam’s Take

It would appear that this Massachusetts driver thought ahead. Realizing that the coming storm would make it difficult to go out and drink, Ms. Tara Tobin (hereinafter, the “Defendant”) got in one last trip just before the snow. The result was not too pretty.

The Yarmouth police say that the Defendant admitted that she had drunk six or seven beers in Dennis before driving.

What happened? The crash took place Tuesday night around 9 p.m..

The unusual part? According to the police, the Defendant, whatever condition she was in, did not cause the accident.

Apparently, a 47-year-old emotionally disturbed man jumped into the path of a Dodge Dakota pickup truck. The truck's driver swerved to avoid the man and was then rear-ended by the Defendant’s car..

The man suffered serious, but non-life-threatening, injuries and was taken to Cape Cod Hospital, police said.

The Defendant is to be arraigned in Barnstable District Court…whenever it reopens following the storm...for drunk driving.

Let’s all hope she presents a bit better than she did in her “mug shot” which was published at the below link in the original article.

My experience, since 1984, handling drunk driving cases in Massachusetts goes back to my last year at Boston University School of Law as a student prosecutor. The cases, particularly when a breathalyzer is involved come down to issues of perception and prejudice.

I do not mean racial prejudice, but bias based upon indoctrination. Most often, if a police officer pulls you over because he or she feels you are intoxicated, or begins to suspect you are under the influence, you will most likely be charged with

This influence, by the way, can be alcohol, illegal drugs or even legal prescription drugs…to say nothing of any mixture of the three.

In my experience, once suspected of being under the influence, you should assume that the police report will say that you have glassy eyes and slurred speech. Most likely there will also be some kind of odor of alcohol listed.

That said, consider yourself under arrest. Any other descriptive is gravy for the Commonwealth. This is why it is usually a mistake to submit to any tests. Granted, if you pass the breathalyzer, for example, it will help you down the road. However, it will probably not prevent your being arrested. If you do not pass it, it will surely hurt you down the road.

Given the amount of vehicular homicides last year due to drunk driving allegations, victims sometimes being police officers, you are not likely to receive a “break” from the officer.

So don’t ask for one. Said request will simply be treated like an admission of guilt by the prosecution.

And, yes, there will be a prosecution.

The advice in these cases is to not quarrel with the officer, or try to outwit or outrun the officer.

Simply remain polite, do not make statements (except name, license, etc.), and get an experienced criminal defense attorney as soon as possible.

If you would like to discuss such a matter with me, please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, and charming photograph about which parts of this blog were based, please go to : http://www.boston.com/news/local/breaking_news/2011/01/by_john_r_ellem_29.html

View the original article here

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