Did you even read what you quoted before replying? I made it clear I was not interested in arguing what the law is, as opposed to general civil-libertarian principles; and I specifically followed that up with “if the law was followed perfectly here, the law is wrong.”
I couldn’t WATCH him do anything, since I was texting him from 3000 miles away. How would I know that he REALLY drank the beers? How would I know how “fine” he seemed to be? I couldn’t HAND him the keys, since, you know, I wasn’t physically there.
I think your grouping of someone physically being present and someone texting over a phone is simply wrong. And I’ve stated it’s my opinion. In my opinion, if I texted someone 1000 times to “Punch yourself in the face” and then they punched themselves in the face, I don’t, in my opinion, feel that I’ve committed assault or attempted assault, or involuntary assault or any type of assault. You may feel different.
If I was physically present, and told someone to “Punch yourself in the face” then it becomes more of a threat and/or coercion since they may feel threatened if they don’t do it. Texting? I don’t feel the same way, since they could simply turn their phone off and no longer receive the texts.
This is a tragic story, but seems irrelevant since the guy didn’t text her “Go play in traffic” from 1000s of miles away. He was physically present to tell her that.
Yeah, and how would a murder defendant know that when he/she pulled the trigger, their gun would release a bullet? And how would they know that the person they were pointing the gun towards would remain standing in the path of that bullet? And how would they know someone could die if they aimed a loaded a gun at them and pulled the trigger?
These things have to be impossible to prove in court, right?
One of the fundamental principles of criminal law is that the law must clearly convey what conduct is prohibited. Due process requires this; a law that fails to adequately give notice as to what conduct it prohibits is void for vagueness.
If the courts read into the common law an element of physical presence, then isn’t the populace entitled to rely on that? A person seeking to conform his conduct to the law can urge suicide by texting, believing the law is broken only with physical presence. We might imagine that the courts can modify this requirement, since it is of their making, but only prospectively.
The parallel is that prosecutors use evidence to infer what a defendant knows. The reasonable person standard could also be used to establish what the defendant should’ve known or done.
So sure, you might answer “How would I know they were drunk?”. But if there’s a long chain of text messages that have the victim telling you he’s drunk, and there’s texts from you acknowledging your belief in that (“yup, you seem drunk af, lol”), then any later assertions that you didn’t know will look like lies.
I guess. But if you can use what a person texts as a way to discern whether or not they were too drunk to drive, then you have better senses I do. Good luck with that. Can I text you next time I’ve been drinking so you can tell me if I can drive or not? Also, I’ll need your name so I can give to the cops as the person who said I was sober enough to drive based on nothing but text messages. In fact, I bet the cops just stop with side of the road sobriety tests and breathalyzers and just use text messages to see if people are under the influence. :rolleyes:
If I can tell when certain posters on the SDMB are too drunk to post safely, I can certainly ascertain that a close friend whose texting style and habits I’m well acquainted with is too plastered to drive safely.
Of all things to treat as too mysterious to reliably infer from a text message, drunkenness is not one of them.