Watch who you hit

The star of next fall’s ad campaign against legal marijuana is going to prison for at least five years because he hit a cop running a speed trap. If he had killed a civilian, the minimum would be one year. Without a referendum on the ballot he could get probation.

A common complaint about modern criminal justice is the law allows the prosecutor too much discretion. You can’t commit just one crime; between basic crimes and sentencing enhancements the prosecutor has an often-vast array of choices. This topic is often discussed on the Sentencing Law and Policy blog and The Atlantic had some commentary recently.

It started in March when a driver in the left lane of the Mass Pike swerved across the highway and hit a car on the right shoulder. Investigation showed he legally obtained medical marijuana and probably smoked one and a half joints before or while driving. The Worcester DA found himself with a fatal crash, an apparently-at-fault driver alive enough to be worth charging, and a bookshelf full of candidate crimes.

How many ways can you kill somebody?

The usual charge after a fatal crash in Massachusetts is misdemeanor motor vehicle homicide. (MGL 90-24G(b).) The legal standard is “negligence.” You made a mistake and somebody died. Typically you go to jail for a few months, but probation is common too. Old people can get away with promising never to drive again.

Take the same driving and add legal impairment, which is distinct from actual impairment, and it’s a felony with a mandatory minimum of one year. (MGL 90-24G(a).) Typical sentences are well above the minimum.

If you drive recklessly (whatever that means) while sober, it’s manslaughter with no mandatory minimum. Your lawyer will ask for probation and the prosecutor will ask for 20 years. Former South Dakota governor Bill Janklow got 100 days.

Add legal impairment and the same reckless driving has a 5 year mandatory minimum. (MGL 265-13½.)

In California this would be a murder case, not based on intent to kill but because car accidents are murder there if the prosecutor says so.

We don’t do the “accident is murder” thing in Massachusetts. It’s only murder if you intentionally run somebody over. The Plymouth County prosecutor charged a wrong way driver on Route 3 with murder. He lost and nobody else wants to lose.

The important thing to understand here is, there is little difference between probation and 20 years (or life in California). The difference between “negligent” and “reckless” is largely emotional. There are cases where a judge will say “definitely not reckless”, but more often the jury gets to decide.

The line between legally sober and legally impaired is also vague.

Choosing charges

In the normal course of events the prosecutor would charge misdemeanor homicide, the driver’s lawyer would say the steering failed, a police investigator would say “no it didn’t“, the lawyer would say “my client got cut off”, a witness would say “I didn’t see that”, the jury would probably convict, and the driver would go away for a few months.

Two things are different this time: the dead guy had a badge, and voters are likely to legalize marijuana in November.

Charges are upgraded to manslaughter based on the victim more than the crime. This time, a police officer died. In another widely publicized case, a pregnant pretty white girl died. (If you want your death to be avenged, don’t be unattractive. Do be upper middle class or better, and white.)

Are one or two joints equivalent to being drunk? The law doesn’t say. I’d say no.

The law enforcement community wants the answer to be yes. They’re using this incident to lobby for a law giving them a magic box to declare people guilty of driving while “stoned” (i.e. with any detectable amount of THC or metabolites in the blood).

They are also preparing for a fight against the ballot initiative to legalize marijuana. In 2006 police defeated a referendum on allowing wine sale in grocery stores by spreading fear about drunk driving, and they need a stoned driving case to spread fear this time.

And so 60 days in jail becomes five years.

The opinions expressed in this post belong to the author and do not necessarily represent those of the Oostwestthuisbest or the oos Base. This content is for informational purposes and is not intended as legal advice. No representations are made regarding the accuracy of this post or the included links.

Not an oos Member yet?

Join today and get these great benefits!

Leave a Comment