So, I won my first felony trial in Alaska today. Well, kind of. It didn't get to the jury as the Judge granted my motion for judgment of acquittal under Alaska Criminal Rule 29 on the four felony counts. A couple of misdemeanors were left and I made a deal with the DA that saw my client get a year on the new charge. Not bad since the pre-trial offer started at 10 years to serve. I won't go in to details but I do not believe that I would have won this case anywhere else. The Alaska Court of Appeals has issued some very good decisions on when hands can be a "dangerous instrument". In California, I would have had my ass handed to me on this case. A while back I said there were some topics I would talk about, including Alaska's DUI law. I haven't got to everything yet, but let me tell you, Alaska's DUI law is stupid as hell. Mainly because it allows conviction for "operating" a motor vehicle. This is different from "driving". The theory is that people shouldn't be around vehicles when impaired as bad things might happen. The problem is that the results are absurd. The DA, of course, charges people with driving while impaired. I understand that. But operating makes far less sense. Like sitting on a towed snowmachine is "operating" a motor vehicle. Trying to get a stuck vehicle out of a ditch for your designated driver is "operating". Being in your car with the keys in your possession. Running the car to avoid freezing, even if the car never moves or the "operator" never intends to go anywhere. Hell, even being around a running vehicle while impaired is probably operating. The problem is that the law ensnares a lot of people who are trying hard not to drink and drive. Like someone who knows he has too much to drive and so sleeps in his car. During the night it gets cold, as it sometimes does in Alaska. He starts the car. Boom. He get the same penalty as someone barreling down the freeway at .26. Remember, those charged with operating are generally NOT driving. I will say this though. For the most part, the DA's I work with have avoided the absurd results with a reasonable offer. Just remember though, if you are in Alaska and have booze in you, don't be anywhere near a vehicle with keys or ever steer a vehicle.

Comments

Anonymous said…
We had a guy charged with DUI for pushing his motorcycle into a trailer. The keys were in it so that he could turn the headlight on to see what he was doing. He was moving away and had a couple of beers while doing so. Jeez.

g
Anonymous said…
Oh, the terrible injustice of it all...

Quit your whining.

It's your responsibility as a citizen to know and obey the law. It's as simple as that.

If you break the law, you suffer the consequences.

Don't think the law is fair? There's a process in place to change the law. Use it.

That's also your responsibility as a citizen.

Until that law is changed, you responsibility as a citizen is to honor it and obey it.

Our laws are a part of a dynamic democratic system of government. You're supposed to be part of that government process. That is what being an American citizen is all about.

Don't like America, don't like Alaska?

If you can't exercise your duty as a citizen, ..leave.

Whining about it only shows you aren't ready to carrying out your responsibility as a citizen.

We don't need whiners, we need Americans willing to act responsibly.

Make a choice.
Anonymous said…
Let me get this straight:

I am unhappy with a law because I think it's unfair.

I criticize the law in an open forum

You call that un-American. You call it whining.

Thank god for all of those "whiners" during the civil rights era.

g
fdr said…
And he of course leaves himself anonymous and does not exercise his right to NOT READ THIS BLOG! ;-)
Anonymous said…
I want you to know that there is a child molester in Soldotna, AK by the name of Larry Ray. The incident happened many years ago in Oregon; it was extremely violent and has affected my entire life. I was 5 years old, he was 17.
Larry's wife is aware of this incident.
Anon #1, do you realize you are reading the blog of a PUBLIC DEFENDER??? Wow. Yeah that is what I am supposed to do, "honor" the law even when unjust or unfair. My job is to challenge the law. Defend those who break it. Point out when it is absurd,unfair ot stupid. Hence the name of the blog...A PUBLIC DEFENDER's life in Alaska. Jeez man. So everyone who gets an operating DUI should leave the United States? Everytime I point out the absurdity of the law I should pack up and flee the country? That means the government could do whatever they want and NO ONE could ever critize any law under your "analysis". The First Amendment notwithstanding, a better analysis is that people in this country have a DUTY to challenge the government when it is excessive. Go read the Declaration of Independence. You really are something.
Anonymous said…
If you had been able to comprehend the Declaration of Independence, you would have recognized that it describes the importance of the mutual responsibilities between a government and its citizens in order that both order and liberty could be sustained.

The Constitution protects the right of individuals to speak out without governmental interference but that does not release one from their duty and responsibility as citizens.

Citizenship is not merely a privilege, citizenship describes your duty to participate in the process of government. You aren't just privileged to complain, your are charged with a duty to participate.

Our democratic government exists to serve the people, but citizens in democracies must also agree to abide by the rules and obligations by which they are governed.

Citizenship in a democracy requires participation.

Those who believe they are privileged to complain about the rule of law, without recognizing and fullfilling their responsibilities to the law, and their duty towards upholding the rule of law, are not acting to honor their citizenship.

It's your responsibility to obey the law, it's your responsibilty to ensure the law is fair and just.

Criticizm in the absence of duty, honor and action is nothing but whining.
Anonymous said…
Wow. That is some crazy theory you've got there. Obviously, a fundamental misunderstanding about the role of government.

Firstly, I am confused as to why you've made the assumption that people who criticise certain laws aren't participating. Isn't it possible that I vote? Isn't that participation? Isn't possible that I've run for elected office? Isn't that participation? And yet, I also criticize. Hm.

Might I suggest that criticism of one's government IS participation, all by itself. That's why the First Amendment is so important. It's called political discourse. It's advocating for change. It's those who voice no opinion regarding current affairs who are the most dangerous in a civil society. In other words, those non-whiners you love so much.

Your characterization of our political system, particularly a citizen's role within government, suggests a woeful lack of education. Quite frankly, it is this sheep-like deference to government that scares the shit out of me.
What amazes me is how some of my readers are so articulate and educated and some others are just dip shits. Hey Anon I'm not the one breaking the law so you can knock your crap off. As a lawyer are you seriously saying that I can't point out injustices without being a "whiner"? What do you think I do all day? I protect people's rights. Apparently people must never, ever speak out when the law, or its result, is absurd or unjust. Just be a good citizen. Stay silent. Wow.
operator101.com said…
Congrats on winning your case.

I know this is a silly question, unless it was a felony assault case why did the DA bring the case to trial?

I kinda agree with you about the 'operating' law. It is, at times, incredibly counter-intuitive. Funny you should mention it as I just got finished with a DUI trial yesterday where the entire issue was 'operating' but in my case the Defendant turned the car on and it crashed into a nearby parked car.
Chinook Charlie said…
All time most BOGUS DUI......Kasilof River drift boat. Guide was drunk...clients took over rowing.....NO MOTOR...charged with DUI.

Months later dropped.
operator101.com said…
okay, read the post a littlebitcloser this time. understand it was a felony assault. must've been under the old 'dangerous instrument' statutory definition?
Correct...hands can only be a dangerous instrument if actual risk of serious bodily injury or death OR if choking. Fail to show either of those and it is 4th degree only.
operator101.com said…
the old 'dangerous instrument' definition totally sucked. :) the recent changes, well 2005 recent, are much better. :)

"hands or other objects when used to impede normal breathing or circulation of blood by applying pressure on the throat or neck or obstructing the nose or mouth"

That'll convict someone real quick.
Anonymous said…
Best you read that Declaration of Independence.

Seems you advise other's to do so, and yet have not a clue what the actual document states, nor what it's purpose may have been.

The declaration states an intent to break free of tyrannical rule, and when it does so, it confers a commonly held responsibilty towards upholding self-rule in it's place.

Creating one's own version of reality only allows one to continue to deny what must be an uncomfortable truth you'd rather avoid.

Best you acquaint yourself with the words and intent of our founding father's creations.

It is the Constitution which expand on what rights and responsibilities were agreed upon to form our form of governance, ...that self-enforced, self-government the declaration notices as our intent.

Key to our form of governance is compliance with the rule of law. We do not get to pick and choose which laws may pertain to us, but we are given the opportunity, if only we would exercise that duty as self-governing citizens, to be given a vehicle to change the laws which govern us.

You are 'protected' in your right to dissent, but that does not grant you any relief of your duty to comply with, and obey the laws which govern us all.

Whining and whinging, is not, by itself, advocacy.

Advocacy denotes action which could be taken to bring about change.

Dissent without advocacy, or action taken to bring about change, is merely whining and denotes a lack of respect for the duty of citizenship.

Yes, you are protected in your right to dissent, but without the attendant participation in the process of changing what you decry, all you accomplish is whining, and a further promotion of apathy and unrest.

That, my friend, is shirking your duty as a citizen.

The examples are all around us, ...the ineffable result is evident.

So again, if all you can manage is to whine, I suggest you don't honor or value your citizenship as you should, ....and perhaps, if you continue to be unwillling to take the responsibilities granted you as a citizen, ....that you depart, because you will continue to be nothing more than an impediment to positive change.
Anonymous said…
Able use of that dusty thesaurus. However, lofty words do not change the fact that one of the main goals of the constitution was to protect freedom of speech. Freedom of speech was considered so precious because ideas alone cause action. Whining. It even protects your whining about all the whiners. Unless your constant jibber jabber is accompanied by action.

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