I "Might" Have Been About To Use The ATM -- Or Rob The Bank At Gunpoint
I put some checks in the bank the other day, but maybe the police should have arrested me on suspicion that I was about to rob the bank. Not because I went inside and handed the teller a note that said "This is a stickup," but because I was at the bank and carrying pen and paper at the time, and I could have written such a note.
The logic there would have been similar to that in a just-overturned case -- Jeffrey McCave's. From TheNewspaper.com:
Jeffrey McCave was sentenced in a county court to thirty days in jail, two years of probation and a $1000 fine for listening to music in an undriven car parked on his father's driveway while drunk. The Nebraska Supreme Court on Friday used the case to clarify that the charge of driving under the influence of alcohol (DUI) does not apply in a personal driveway....Prosecutors argued that the DUI charge applies to a residential driveway because McCave had physical control of the vehicle and that he might have been about to leave.
...The court also discarded the prosecution's insistence that McCave was guilty of DUI simply because the police officer claimed the man had stated he was "leaving."
"Obviously, if McCave had committed an offense in front of the officers, they would have had grounds for an arrest," Connolly wrote. "But his statement that he was leaving, even if his hand was on the key in the ignition, showed only that he had considered driving but changed his mind."
The high court went on to blast the sloppy police work that led to McCave's conviction.
"No witness reported that McCave was driving a vehicle at any time, and the officers did not pose this critical question to McCave or any witness," Connolly wrote. "Before officers invoke the power of a warrantless arrest, the Fourth Amendment requires them to investigate the basic evidence for the suspected offense and reasonably question witnesses readily available at the scene, at least when exigent circumstances do not exist. This is particularly true when the circumstances the officers encounter are consistent with lawful conduct. As previously discussed, it is not unlawful for a person to be intoxicated in a vehicle on private property not open to public access."
via Overlawyered
Isn't the functional part of DUI "driving"?
lujlp at October 24, 2011 1:26 AM
Luj, they want to be able to pick you up if you see them fast enough to pull over and pretend to be asleep. The phrase they use in my jurisdiction is "we observed you driving", but reputedly the rules are written as "if the keys are in the ignition, you're in control of the vehicle".
It's a stupid rule, of course - I was told years ago, if you want to sleep off a big night in your car, put the keys under the seat or under a tire - forget having the radio on. Not sure how true it is and I've never had to test it. But would they prefer I a) slept under the car, or b) drove it?
Ltw at October 24, 2011 2:40 AM
So, his father called the cops on him?
And then we have the asshole cops...
"I guess I just inferred with the beer being in the car that him and the beer got there by the vehicle," Officer Benjamin Faz testified.
Well, with police work like that, I can't imagine how this case was thrown out.
DrCos at October 24, 2011 4:06 AM
I dated a guy who got a DUI opening his car door. If you're drinking, stay away from your car, is the safest route. Cab it.
momof4 at October 24, 2011 5:23 AM
'Sup, Girlfriend?
Crid [CridComment at gmail] at October 24, 2011 7:06 AM
That's really stupid. So because he had could have gotten in the care and driven off while intoxicated, the cops are allowed to charge him as if he did? That's like charging someone with child molestation merely because he's in proximity to the child and has the opportunity. Oh, wait...
Patrick at October 24, 2011 9:11 AM
A friends daughter was incidentally involved in the same sort of thing. She was one of a group of Air Force Academy cadets that had gone to some kind of sporting event in Denver. They had all been drinking and no one was fit to drive back to Colorado Springs so they called a cab and waited in the vehicle in the parking lot for the cab to arrive. It was freezing so they waited with the engine on.
Meanwhile the Denver police showed up and charged the guy who was sitting behind the wheel with DUI. His career and education was on the line so he had to fight it, and I think the charges were eventually dismissed, several thousand dollars worth of attorney's fees later.
Isabel1130 at October 24, 2011 4:39 PM
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