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Justice to Some, Austin’s DWI Is All Relative

Austin has reached critical mass. Our highways are overcrowded. Our streets are filled to the brim with cars, trucks, motorcycles, bicycles, pedicabs, taxicabs, horses, scooters, and pedestrians all competing for space. Space is further limited by construction of buildings, new roads, repair of old roads, detours, event lane closures, street closures, and weather conditions. Sometimes that space has to be navigated among all of these competing interests AND an out-of-control drunk driver. As Austin DWI accident attorneys and car accident injury lawyers, we’re very familiar with the difficulty these overlapping forces can cause. Sound like chaos? It is. Yet, there seems to be some sort of theory of relativity in relation to drunk driving and the penalties exacted.

Each year we host events that draw crowds pushing a population already at its maximum capacity to seam splitting limits. South-by-Southwest, Austin City Limits, Austin Marathon (and a run or ride every weekend day of the calendar year), Kite Festival, Carnaval, Fun Fun Fun Fest, Formula 1, Moto GP, and ROT Rally, just to name a few. With each event brings in new folks, out-of-towners, out-of-staters, people …more people. We love it, and we hate it. Whether you’re a festival goer or a car accident injury lawyer familiar with the stresses these events can cause, you can certainly see the issues that arise due to the crowds associated with these events.

Transportation is clearly an area where we miss. We have a very lite light rail system that has very limited routes, and limited capacity. We have Cap Metro and there is no shortage of complaints about areas of town it does not cover. The UT system has a bus system, so there is that added bonus for UT employees and students. There are no pedestrian/cycle overpasses for over International Highway 35. There are a few pedestrian/cycle overpasses for MOPAC. We have all sorts of toll roads that well, nobody is on. At least, the toll roads do not seem congested or even busy. …and we are building another one.

While some events are focused on sports and family, most of these events are focused on music/alcohol. This has become our city’s trademark, music/alcohol. With alcohol comes the question of how to safely transport the drunk or drinking crowd from one event location to the next. It has long been established that there is no safe way for a drunk person to operate any sort of vehicle to safely transport themselves. Thus, what are the options:

Lite MetroRail- http://www.capmetro.org/metrorail.aspx?id=312

CapMetro-(Downtown Only Shown Here) http://www.capmetro.org/uploadedFiles/Capmetroorg/Schedules_and_Maps/systemmap_downtown.pdf

Taxis- This tidbit on taxi use in Austin is interesting http://www.austintexas.gov/sites/default/files/files/Transportation/Parking/Comparison%20Data.pdf

Short of private limousine’s this is what our city has to offer.

So what happens when you drive drunk and get caught?

Here is what could happen: Standard first offense (Class B Misdemeanor) could be 72 hours in jail; $3,000 DPS surcharge; 180 days in jail; $2,000 fine but…..and this is where it gets me, IT DEPENDS. It depends on who your attorney is, who your prosecutor is, and who your judge is. It depends because there are variables that slip through the all too slippery cracks of our justice system.

So, what happens if you are over .08 BAC and you kill someone? This is really what gets me, IT DEPENDS.

Case Study:

People v. Owens (3/2014) Kills three, capital murder charges http://articles.chicagotribune.com/2014-03-14/news/chi-sxsw-austin-car-hits-crowd-20140313_1_two-people-police-custody-police-car

People v. Marshall (2/2014) Killed two, no capital charges http://kxan.com/2014/02/05/woman-charged-with-dwi-in-deadly-northwest-austin-crash/

People v. Wyzykowski (2013) Killed two, 19 felonies charged, http://www.myfoxaustin.com/story/24331820/police-dui-driver-in-fatal-crash-was-over-3-times-legal-limit

People v. Nestande (2011) Killed Courtney Griffin leaving Clive Bar, not charged with capital murder but at least criminally negligent homicide will get you six months in jail (maybe). http://www.kvue.com/news/local/Nestande-to-be-released-from-jail-Friday-224560321.html

People v. Johnson (2012) Cody Johnson killed when hit from behind, MISDEMEANOR charges pending.  http://www.kvue.com/news/Austin-cyclists-take-to-the-streets-to-remember-one-of-their-own-killed-by-suspected-drunk-driver-177793971.html

Robert “Chops” Ramierez, 30, (2012) biking on the Ann Richards Congress Avenue bridge when struck and killed by a car whose driver was charged with intoxication manslaughter and failure to stop and render aid.

Also, Dik Van Meerten, 61, struck by a car that jumped the curb outside Wheatsville Co-op on Guadalupe Street. The driver faced charges of manslaughter and intoxication assault.

Each of these crashes were in densely populated areas, lots of foot traffic nearby, all involving alcohol and all have different charges brought. The charges span from misdemeanor all the way to capital murder. So what gives?

A study of the outcomes in all these cases, nearly too many to mention, is timely and would be welcome.  Austin’s 2012 fatalities are compiled here: http://cycling.frenzied.us/unsorted/2012-austin-traffic-fatalities.html  The fact is there are different charges levied for nearly the same crime over and over again. The variations may sometimes be slight  and sometimes they are of such severe magnitude that you have to wonder, whether you’re a DWI accident and injury lawyer or not.

This is not an isolated problem with a quick fix solution. There are systemic issues that include a city with a long tradition of celebrating music and alcohol as its primary form of entertainment and its loudest trumpet to hail tourists. The issues include a shortage of transportation alternatives, police, district attorneys, and our attitudes, yes-us! as a society and a community. What are our limits? What is our tipping point? Do we have one? When do we demand what other cities have, transportation options, consistent enforcement and prosecution of these crimes?  When do we take to the jury box and convict for maximum penalties? Do penalties help? Wouldn’t up front solutions be the smartest alternative? Harsh consistent penalties could be a solution. As Austin car accident injury attorneys and DWI injury lawyers, we advocate for solutions that will bring a higher level of safety for all of the residents of Austin.

For instance, any driver that has a first time DWI with no injury mandatory  intoxilyzer installed as part of a probation and sentencing. It is expensive, and it is a partial preventative for drunk drivers. There are ways around the device but no harm in causing an offender to get one. Mandatory minimums without negotiation for fines, $5,000 minimum with heightened fines for elevated BAC levels or other infractions. Mandatory court suspension of driver’s license privilege for one year, you will now learn to ride a bike or take the bus. Mandatory drug and alcohol classes, money benefitting victims fund.  Mandatory 120 days of actual jail time. Mandatory 80 work release as part of the probationary terms (little orange jacket working to clean sidewalks and pick up trash). And three year court supervised probation and no matter who you are this is what you get for a first offense.

The point is this, no matter who you are, no matter how much money you have, no matter who your employer, no matter which prosecutor you get or what court room you are assigned, you walk in for your arraignment and it is written on the wall what your penalties are for your DWI whether it is a first, second, and especially when harm is caused to another. What we have now is so unpredictable, the variables scream justice to SOME.  Driving under the influence of alcohol is serious, the outcomes are outrageous, and the law and its delivery is specious.

SXSW Car Crash

SXSW crash

SXSW crash

Austin it is a sad day, as this crash happened during an internationally recognized event that our City is famous for and embraces as a robust boost to our economy. This is horrible for the families, the survivors, their friends, loved ones, those injured, those who will suffer and struggle to rehabilitate.

There is a subtext, one that needs and deserves discussion. As Austinites we know that there is an inconsistency about enforcement of drug and alcohol driving violations, especially those involving serious bodily injury and death. As an Austin DWI accident attorney and car accident injury attorney, it pains me to see these inconsistencies play out.

Our city wholeheartedly embraces a drinking atmosphere and culture. We have virtually no public transportation to speak of after midnight and very little for those after “Happy Hours”. There is almost no municipally supported program that would assist a drunk driver. Okay, well that is another topic because this perpetrator was driving a stolen car and probably would not have ended up on our burgeoning light rail had we an effective one. Yet, what did happen? What was said? Why is it important?

When Chief Acevedo spoke at today’s conference about the #SXSWcrash about the officer that gave chase to the suspected drunk driver, Chief Acevedo mentioned the officer was part of the “STEP” program.

In this article from 2006 in policechiefmagazine.org, we found this explanation of what a “step” officer is….

“The DWI Task Force focused on areas where offenses were likely to occur and during peak hours when impaired driving was most prevalent. Task force officers worked as two-person units. Two teams patrolled Sunday through Wednesday nights, and four teams worked Thursday through Saturday. On Saturday night, officers hired through the DWI Traffic Selective Enforcement Pro-gram (STEP) supplemented the teams.” http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=974&issue_id=82006

The Step program seems to be a program that brings in additional coverage officers for DWI enforcement. Let’s hear more about this program. Let’s hear more about official policies of APD. Yes, there is definitively one person who did very bad acts and those bad acts were the proximate cause of great bodily injury and death. That man has been apprehended.

Interestingly, the community is hearing Chief Acevedo, not the District Attorney, make claims that this person will be prosecuted for capital murder? Really? Manslaughter, no, that is not what he said. He said, Capital Murder. That would be novel at best and probably the wrong charge but we will leave that to the District Attorney, since that is their province. Yet, we know similar egregious acts are still listed as misdemeanors, such as when Stephen Gilbert ran over Cody Johnson from behind, killing him, registering a BAC over .08% and over 18 months have passed and there is not even an indictment. In Austin, our DWI injury attorneys and car accident injury lawyers are sadly familiar with these kinds of cases. Indictments can be made on ham sandwiches, an often quoted line from every first year criminal law class throughout the land.

What raises some additional pause of course is the circumstances involving this crash. The chase, the actual decision to chase a drunk driver past a barricaded street, into a crowd of people. Is this against APD policy?

Was this a trained officer? Do the STEP officers know APD policy on when to give chase? When not to give chase?  Was the crash, the two killed, the 23 injured a forseeable event in light of the circumstances? And moreover, was it preventable?

As personal injury attorneys practicing DWI accident law and car accident injury cases in Austin, we’re tired of seeing these tragedies occur. Let’s push for a transparent government. Let’s push for consistent charges, sentencing, and let’s let the public know what happens when you break the law, drive drunk, choose to put others lives in peril.

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