Sunday, November 11, 2012

Killer on the road

Roadside memorial for Daniel Haley., Rt 116 northbound Hadley/Amherst line, parallel to UMass football stadium

Since his assailant was going the wrong way on a state highway and he was only a few miles from his Amherst apartment after a long late-night motorcycle trip from Pittsfield, it's safe to assume they were both going at least the 55 mph speed limit.

When he initially spotted her bearing down he may have assumed it was just an optical illusion -- that she was actually in the southbound lane where she belonged.  After all, who would anticipate a car going the wrong way on such a well marked, well maintained divided roadway, on such a clear night?

And in that split-second realization a high-speed missile was indeed locked on him, maybe he thought the UMass exit -- only a few hundred yards ahead -- could provide safe haven.  But two objects hurtling towards one another leaves little time to carry out a deliberative decision.

Whatever desperate evasive maneuver taken by Daniel Haley, age 24, it was not enough.  He was killed instantly, only a month before his scheduled UMass graduation.  By a drunk driver.  Worse, and all too typical, a repeat offender:  Brittini Benton, age 23, of Sunderland.

In a judicial review of 57,000 DUI cases spanning four years, sparked by a Boston Globe Spotlight team expose on leniency towards drunk drivers in Massachusetts, an independent special counsel found juries acquit drunken driving cases over half the time (58%).   But judges in similar situations (where a defense attorney has waived the right to jury trial) acquit a whopping 86% of the time!

In Massachusetts a driver can refuse a breathalyzer test without penalty of a license suspension, if they are later acquitted of the drunk driving charge.  And in the absence of concrete scientific evidence provided by a breathalyzer, that acquittal, sadly, is more likely to happen.

Allowing careless potential killers back on the road. So once again, sweet family will die.

21 comments:

Anonymous said...

You fail to mention the amount of time it takes a acquittal on a OUI charge, and it is much longer than the 60 day suspension penalty placed upon the defendant by law for refusal of a field sobriety test and/or breathalyzer. As an American citizen, you should understand that the judicial process takes more time than it probably should, and in most instances, without the assistance of a very renowned DUI defense attorney (who in most cases has been a DA and has worked with the judges hearing the trials as well as the current DA who is prosecuting in the trial) these cases take months to progress through the overworked courts, not only in the state of Massachusetts but also those in the other 49 states comprising the nation.

The point is, I understand this is your blog and you continuously state the right to post what you wish. But if you want to have a blog that has an impact on public opinion in those in this area, as well as others, you should take the time to report both sides of the issue and not just the side you portray as right. In matters of opinion there, obviously, always be two sides, but being able to address both sides of the issue and come up with a reasonable response, is much more respectable than just picking what is easier to argue and go with it. Before going into a much longer, detailed response, I'll stop here since you will most likely publish this and then respond with calling me a CAN.

Also, you can thank the Constitution of Massachusetts for refusal of Breathalyzer, as well as a field sobriety test, for not being admissible in court due to violations of individual rights provided by this state's Constitution. Operating under the influence is an issue, but when addressing a solution it cannot be resolved by a biased opinion.

Anonymous said...

Sad, sad, sad. Has this case been settled yet? Richard Marsh

Larry Kelley said...

No Richard, not yet.

One project I would love to do is to follow up on all 144 DUI arrests APD made last year to see what happened.

This tragic case, however, was just outside APD jurisdiction.

Anonymous said...

The Canadian system: First dui and a lock is put on the car so that the driver must take a breathalyzer to get it to operate. Big insurance premium jump, and possible fines.

Anonymous said...

i was under the impression that a refusal of a breath test was an automatic six month suspension, regardless of age...this is not the case?

Larry Kelley said...

Yeah that's what I always thought.

But no, if somebody beats the charge of DUI then they also beat the automatic suspension for having refused the breath test.

Thus anyone who knows about this giant loophole would be foolish to consent to the breath test.

Maybe why this is a well kept secret?

Anonymous said...

Wait a minute, Anon 7:12 pm.

Massachusetts is one of only two states in the Union in which refusal of the breathalyzer is not admissible at trial. In fact, the jury cannot even hear about the breathalyzer if it was refused.

The other 48 states see a driver's license as essentially a contract in which the privilege to drive is part of an exchange for certain terms, such as the obligation to take a breathalyzer, when requested to do so by a police officer, or have the refusal count as evidence against you at trial.

Now I understand that we view ourselves as so much more special in Massachusetts than all those terribly backward states. But when we get into a realm in which every driver is operating a piece of equipment that could kill anything in its path at any time, I'm not sure that "thanking" the Massachusetts Constitution is the end of the discussion.

We're not talking about freedom of speech, rights against unreasonable search and seizure, or freedom of religion.

What we have in Massachusetts, as a result of stretching the right against self-incrimination into an area where it doesn't belong, is a legal playground for drunk drivers, a place where innocent drivers, pedestrians, and bicyclists regularly get killed. All the complacent and pious talk about "individual rights" of drivers in Massachusetts does not change that. And so tragedies such as those documented by Larry on this blog will continue.

There's a problem here.

Dr. Ed said...

Larry, as a motorcyclist myself, I wouldn't have presumed anything and would have assumed that the oncoming vehicle was on a collision course until I knew otherwise.

I'd have shut off all my lights, gone to full throttle, and probably gone to her *right* as she was already drifting to the left.

My point: you never have to die unless you want to -- you can *always* do something to save yourself, no matter how bad the situation looks...

Anonymous said...

To "Ed". That has to be the most stupid post you have ever made. And you've posted some real stupid comments. Congradulations, you have sunk to a new low.

sally said...

"Dr." Ed, you are despicable and likely a moron to think that all accidents are avoidable. You are basically blaming the victims, that they could not maneuver to safety. You are a class 1 ass.

Anonymous said...

To "Ed". That has to be the most stupid post you have ever made.

REALLY?!?!?

Let's look at the facts. That is a divided highway that I believe was built to "Interstate Specifications." Interstate specs call for 12-foot wide lanes, of which there are two, and to make the math simple let's say the breakdown lane is only 6 feet wide (I think it is wider).

So you have a 30 foot wide road, and a car that is maybe 5 feet wide, which leaves you 25 feet of open space -- at a closing speed of 110 MPH (posted 55 x2), you'd want at least 3-5 feet of clearance because there is a wave of air ahead of the car and a partial vacuum behind it, but this is still survivable.

Now if you go to the right, as the law says you must, and the drunk driver continues to drift further to the left, which she is already doing, then you are up against the guard rail and out of options.

(I have long maintained that a lot of these single-operator late-nite OUI crashes are a combination of intoxication and a driver falling asleep, and alcohol *is* a sedative.)

But if you say "screw-the-law" and go to her *left*, there is a perfectly good 12-foot-wide lane. And you go dark because you don't want her to wake up at the last minute and instinctively pull to the right if you are going to be there -- you want to shoot by her without her ever seeing you.

It's a calculated risk -- you are dodging an out-of-control vehicle and you have to take your best option because you are not in a good situation. And as you will have - maybe - 2/3 seconds to make these decisions, you will have had to have thought it through before, "what will I do if..." and such.

And you may not see the situation for what it is quick enough to be able to act in time. But that is something completely different from not having a plan as to what you will do *if* you can.

And what exactly is stupid about the preservation of human life?

Dr. Ed said...

Two other things -- First, Federal Court precedent, at least Maine but I think 1st Circuit, is the "doctrine of emergency circumstances."

Essentially, when a driver is confronted with an emergency that he did not create, he can do *anything* that a reasonable person *might* do, even if in hindsight it was not the best option for him. And all laws are irrelevant in the face of the greater duty to preserve life & property.

It's a Federal case because it was a Navy guy driving a USN pickup who fell asleep on a rural/straight 2 lane road and drifted into other lane. Oncoming vehicle blew horn and such to no avail, so attempted to pass on left. Navy guy woke up at the last instant, pulled to his right, and there was an accident.

Ruling was that it didn't matter that the attempt to pass on left was both illegal and caused an accident, the emergency was created by the navy guy and this was a rational solution even if not the best.

---
Second, I don't believe that there is a blinking yellow light where 116 goes into the split highway, and I believe that code calls for one.

Bear in mind that interchange was temporary -- I have seen circa 1960's plans for UMass which show the dual highway continuing up past all of UMass and a northern UMass exit on the NW corner of campus.

Anyway, if there had been a blinking yellow light there, would the drunken nitwit have stayed on her side of the road -- quite possibly. The state seems to think it worthwhile to install and maintain them elsewhere (eg on a similar part of Route 2).

Anonymous said...

Ed,

You have finally pinned the official crazy meter in the red zone by implying that this poor victim of a drunken driver was in fact a suicide for which you provide no evidence other than you would have done something different in your hypothetical motorcycle ride. Truly offensive.

Anonymous said...

Ed,

So, you are defending a person that was proven to be drunk, and who had a prior history of drunken driving, on the basis that there wasn't a blinking light? Gee, how do all the other drivers do it? Oh, that's right, they're not DRUNK. Sheesh!

Dr Ed said...

...implying that this poor victim of a drunken driver was in fact a suicide

No. I did not intend to make any such implication, and I apologize if anyone read it that way.

The phrase "you only have to die if you want to" is not meant to be read literally -- we all are going to die some day and I suspect that none of us are going to want to.

What it means is even if you rationally conclude that there is no way you possibly are going to live through this mess, don't stop trying until you actually *are* dead -- don't give up.

I grew up in an environment where slightly more than one out of every thousand workers will die on the job each year. Commercial fishing *is* that dangerous, I have been in three situations that I realistically did not expect to live through - and I am still here.

I am not saying that tragic accident is that young man's fault, nor that I would have been able to avoid such a fate. What I *am* saying is that I have taken the time to think through what I would do were I to suddenly find myself in such circumstance, and even if my death was inevitable and it was for naught, I would still try.

I am not saying that he didn't, either.

So, you are defending a person that was proven to be drunk, and who had a prior history of drunken driving, on the basis that there wasn't a blinking light?

Absolutely not. She shouldn't have been on the road.

Gee, how do all the other drivers do it? Oh, that's right, they're not DRUNK. Sheesh!

So let's remove all the guardrails and marking reflectors, not bother paint the lines or anything else because the sober drivers can find the road without help.

Drive Route 2 through where it widens to a divided highway and not only do they have a flashing yellow light, but you have to physically knock stuff over to get onto the wrong side of the divided road.

Somebody thought that it was a good idea to put all that stuff there. Why not at least some of it on a similar road configuration particularly after there has already been one fatal accident!

This is not defending drunk drivers.

Anonymous said...

In Japan, if you are caught driving under the influence, accident or no, you lose your license. Period. End of story.
Same in the Czech Republic, but in addition you are arrested and sent to jail. These two countries don't wait around for an accident to happen. What is this "flashing yellow light" and refusing to take a breathalizer test idiocy? Totally irrelevant. The bottom line is we don't take this issue seriously enough to do something concrete that will actually make a difference.

Anonymous said...

Dr. Ed: I am a medical professional in eastern Massachusetts. Because my son attends an Amherst college (I'd rather not say which one), I've been following this blog - especially your posts - for the last few months, with growing concern. Have you ever considered talking to someone about your preoccupations and anxieties? I ask this question as gently and respectfully as possible.

Anonymous said...

That's is a very good point. Especially being that it is much easier to get out of the way when riding a motorcycle.

Anonymous said...

Do you even know how far of a distance he saw her before they crashed? Or at least should have?

Anonymous said...

Had the Motorcyclist drinking as well? Get the facts straight before assuming

Mike said...

I'm the great uncle of Dan Haley. The hole in my heart from this loss, can never be filled. Anonymous, call me at: (413 ) 537-9149 an let's arrange to meet face-to-face and I'll answer all of your questions and tell you about Dan and the kind of person her was. I'll tell you in detail what the police told me, what the DA 's office told me, and what those who knew the acused told me. This, I hope will help you get your questions answered...get the facts straight for you.