Agreed.
I’ll note that given the amount of alcohol the defendant drank that today, it’s hard to believe that a jury would find him a credible witness.
This was part of my calculation. The cop said that he drank a lot of beer, and I don’t necessarily take that at face value… but when the defendant answer with vague things like “I remember answering his questions,” I conclude that he was really sloppy drunk.
If this was an episode of CSI, I’d ask if HC’s fingerprints were on the cruiser. In real life, not likely to have been checked.
+1
Why is being drunk in public a crime? If it is. A guy sleeping it off on a bike trail is harming no one. Why does he have to be arrested? We give cops too much leeway in cases like this.
A reasonable inference is that the HC’s ribs were broken prior to contact with the deputy, perhaps by a fall. That the HC cannot recall due to intoxication is consistent with such an accidental injury possibility. There is insufficient evidence that the deputy caused injury to the HC.
Persons found laying on the side of the roadway (even a bike trail) are presumed to have been hit by a vehicle until proven otherwise by the 911 center I worked at. The deputy rousing the HC to attempt to ascertain what happened is the deputy’s duty.
If the jury believes that the HC did lower his shoulder and charge the deputy then Unlawful Wounding is the appropriate verdict. It shows intent to cause harm and not merely flee, and shows the HC’s disregard for the pain in his ribs. Virginia case precedent may differ but my jurisdiction considered even one drop of blood drawn to be sufficient to elevate an Assault ABH (Actual Bodily Harm) to Assault GBH (Grevious Bodily Harm). I can seen a broken bone as more than sufficient injury to elevate a charge.
Attempt to disarm, resisting arrest, and public drunkenness are a given. Presumable sentence for those would be concurrent with any sentence for the wounding.
IIRC it is possible in some jurisdictions to request an estimate of whether the judge would be amenable to a sentence at the lower end of the recommended range. I’d recommend taking a plea for anything less than 3 years noting that good behavior could reduce the actual time served significantly.
I want to know how HC got the broken ribs, and what the unspecified multiple injuries are, and how he got those.
Depending on the answer to that, I might want to know why it’s not the Deputy who’s being charged.
Yeah. That’s what I call ‘camping’.
I would say you are guilty of assault and battery ------ and very likely a relative on my mother’s side of the family. 
I am probably over-thinking this.
[ul][li]I would still like to know if HC’s BAC was measured, or if the intake personnel either at the jail or the hospital observed that he was drunk.[/ul][/li][ul][li]Did HC have any ID on him when he was booked, or at the hospital? If so, that would tend to disprove that part of Deputy’s story, or confirm it if HC didn’t.[/ul][/li][ul][li]HC seems to be implying that he had the broken ribs upon being roused, that the pain made him unsteady on his feet, and that pulling on his arm put him in such pain that he screamed. [/li] Yet he was able to get free from Deputy, breaking his wrist in the process, and was able to run to the shed where he was found.That is mildly inconsistent with the idea that his ribs were broken when being roused, but consistent with him being drunk, being unsteady on his feet for that reason, and having his ribs broken during the struggle.[/ul]
[ul][li]HC claims he was pepper sprayed while trying to pull free from being cuffed. So Deputy would have HC’s arm in one hand, and the cuffs, ready to apply, in the other. Deputy would need a third hand to hold the pepper spray if the spraying happened at that point. Therefore, ISTM that the pepper spraying happened later, during the struggle - which tends to support Deputy’s story rather than HC’s. [/ul][/li][ul][li]I don’t know if the judge would really allow evidence of the previous fraud conviction. [/li] If he did, I would certainly consider that when deciding whether or not to believe HC’s version of events. And the decision would be pushed pretty strongly to Not.[/ul]
I have never been a juror, but I would tend to assume that all testimony is going to be self-serving to some extent, and therefore to pay most attention to the parts of the story that are backed up by evidence. And then to give more credibility to the witnesses whose stories are backed up, and less to those whose stories aren’t. As well as those with less reason to lie, and for better or worse, in this case HC has reason to lie, and Deputy much less.
That’s not to say that police never lie. But it’s also not to say that they always lie.
But if you got two witnesses, one with a lot to lose and nothing to back him up, and one with essentially nothing to lose and at least a little to back him up, I believe the second.
This stuff about how being passed out drunk by the curb is really camping reminds me of the sovereign citizen stuff about “I wasn’t driving when I was sitting behind the wheel of a car - I was traveling, and the laws don’t apply to me because I wasn’t hurting anyone by driving without a license”.
Regards,
Shodan
I do have to wonder what “legal limit” for his BAC are you referring it to? That is, there is a “legal limit” of one’s BAC if one is to operate a motor vehicle, but I don’t think there is one for walking down the street, voting, or even posting on the internet (although, perhaps there should be).
Just because someone is sitting down on the ground, listening to iTunes with a BAC over 0.08% does not make him a “danger to society”. Unless the laws in Virginia are considerably different than where I grew up, it is not against the law to be drunk in public. What is typically called “public drunk” is often a generic term for an offense such as “drunk and disorderly” or the like. If merely having a BAC over 0.08% is enough to get you thrown in jail these days, I think we all (even those of us who do not even drink) are in a whole lot of trouble.
Now, if it is not contested that the HC had consumed many beers in the hours before the encounter and that he yelled and ran away from the arresting officer, then I’d tend to agree with charges related to being drunk in public. For the assault and battery charge, I’d want some evidence that the injuries the officer claims actually were caused by HC (as it stands, the officer hasn’t testified that HC caused them, only they they existed after the encounter). Perhaps I am a bit jaded by proven instances of police lying under oath, but if all wa have is one man saying “he assaulted me” and another saying “I did not”, I am not prepared to blindly consider the officer’s testimony to be credible and the defendant’s not credible.
I voted for the various misdemeanors and would only consider assault if there was evidence in addition to the officer’s testimony that the injuries were caused by the HC. I’d also like to know what the Hell a Commonwealth is, how it differs from a State, and why Virginia can’t be like all the others States that call themselves States.
They are apparently. Under Va. Code 18.2-388, it is unlawful to be “intoxicated in public, whether such intoxication results from alcohol, narcotic drug or other intoxicant or drug of whatever nature”. Va. Code 4.1-100 defines “intoxicated” as “a condition in which a person has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior.”
I prosecuted a number of these cases years back (it tended to be people passed out drunk in various bushes) and as I recall the case law the threshold for “observably affect” is really very low.
There are four Commonwealths.
I can’t argue this, but I do have to ask is if ones BAC has any relevance, and from what you quoted, it does not appear that it does. That was the point I was making. Some posters were saying that if HCs BAC had been tested and was over some (undefined) level, then he should be guilty.
I would argue that if you “drunk enough … to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior” that you are likely to be a nuisance, and the police have a right and a duty to remove you from those who you are annoying, I do not believe it gives the police the right to assault you and break your ribs.
What does that have to do with anything? There 6.02 x 10^23 atoms in a mole. My car’s gas tank holds 16 gallons of gasoline. I could go on. What the Hell is a Commonwealth, how does it differ from a State, and why can’t Virginia be like all the other States that call themselves States.
I know a guy who has cerebral palsy. It affects his manner, disposition, speech, muscular movement, general appearance, and behavior. I’m not sure if that makes him a nuisance and I really do not think the police should bother him.
Assuming his cerebral palsy is not voluntary, and that it doesn’t cause him to sleep in the gutter or fight with police, I agree with you.
Regards,
Shodan
It boils down to this: the Commonwealths can’t shut up about how they are Assistant Regional Managers, and all the other States have to constantly remind them that they are Assistants to the Regional Managers.
Yeah, diabetes can also cause at least some of the above. So testing is warranted. Checking on people passed out in odd places is also warranted.
Even if we take the deputy’s version of events as true, I don’t see how three punches and a scuffle on the ground comes anywhere close to showing an intent to “maim, disfigure, disable, or kill” the deputy.
However, I do think that the deputy’s injuries, his testimony, and the likely self-serving and impaired testimony of HC would lead me to be convinced beyond a reasonable doubt that HC indeed committed an assault and battery on the deputy.
I am a criminal defense attorney in West Virginia and had a very similar trial this week. Verdict was battery.
There wasn’t a “Not guilty” option, so I didn’t vote.
So, about 80% of people in any given bar in Va. at any given time are violating 18.2-388? Did any defendants ever bring up selective prosecution?
Obviously, the Dope is not exactly a typical jury pool, so I don’t know how helpful we really are. Me, the biggest evidence is the cop’s broken wrist, which makes it seem that some kind of struggle really did happen (not just cop kicking the guy awake and getting pissed when he ran off). But I can’t see how the prosecution can prove intent to maim here, let alone malice.
Well, sure, if I was fighting a guy who had a poisonous snake, I’d try to get it away from him too!
I’m not seeing proof beyond a reasonable doubt of any of the four listed elements of the crime of Malicious Wounding except #1. I could be convinced of assault and battery, but frankly I’d like to hear the detailed testimony on that one, too.