A BAC test would be an objective piece of evidence as to whether Deputy’s claim that HC said he had drunk a dozen beers was true or false. If HC’s BAC was determined to be too low to measure, or something similar, that would be reasonable doubt as to HC saying he had drunk twelve beers.
I also asked if any of the jail or hospital personnel noticed that HC was visibly intoxicated, which would another piece of evidence, albeit less objective.
I think it has been stipulated that HC was sleeping in the gutter, and upon being awoken, was unsteady on his feet. That certainly is part of his general appearance and demeanor.
As to the last part, police are entitled to use reasonable force to effect an arrest. It hasn’t been established when HC’s ribs were broken - perhaps when Deputy woke him up, perhaps during the struggle, perhaps HC’s ribs were damaged being woken up and further damaged in the struggle. It has been objectively established that Deputy has a broken wrist, and even if you take HC’s story at face value, that had to have happened during the struggle. The struggle happened in the course of resisting arrest, pretty clearly, therefore I said HC is guilty of obstruction. And A&B as well - if you break an officer’s wrist in the course of resisting arrest, that is pretty clearly assault and battery.
We go over this a lot on the SDMB - you do not have the right to resist arrest, even if it turns out later that the arrest was unjustified. You submit to being cuffed, and you make your case to the judge that you weren’t passed out drunk in the gutter - you just decided to take a little nap for some reason, and the cop (and possibly the jailers and hospital nurses) are all lying that you stank of stale beer and couldn’t stand up straight.
Reasonable doubt doesn’t mean believing six impossible things before breakfast. HC is guilty of resisting arrest by his own admission, his story of how he was in so much pain he couldn’t stand up straight but was able to break a deputy’s wrist and run away, that he was sober as a Mormon when he decide to go nighty-boo in the gutter, and that he was lying before but is telling the God’s honest truth this time - pull the other one, it’s got bells on it.
I can’t speak for MrDibble, but I have concerns about the police stirring up trouble when their “help” is not needed. “Let sleeping dogs lie” kind of thing. I’ve been drunk in public. I’ll be drunk in public again.
As I said, I am a criminal defense lawyer, but if the police come across a guy lying in the gutter, I think they would be remiss for not at least checking it out. The guy could be having a medical episode and dying right there. It is sufficiently unusual to be sleeping in that place.
For the idea that being drunk in public should not be a crime, I tend to mostly agree with you that it should be amended to be drunk and disorderly in public, but I can agree with the idea that if you are SO drunk in public that you need to fall asleep in a gutter, that is an issue for public policing. First, I don’t want to live or travel or go out for dinner in an area where people are passing out. Second, if I was drunk to that point, I would appreciate being woken up to at least get me back home or to a hotel or even a shelter.
But in any event, there is no constitutional right that I can see which makes Virginia’s law so tyrannical that a person has a right to resist arrest of it with force.
The description given of the incident is consistent with the following scenario:
– Deputy tries to wake HC, and, at some point in trying to do so, kicks HC in the ribs, breaking HC’s ribs.
– Deputy then gets HC onto his feet. HC is confused due both to drunkenness and having been abruptly woken up, and in pain. Deputy tries to cuff HC, who due to confusion and pain pulls away. Deputy then pepper sprays HC, which adds to both the pain and confusion. HC, not really understanding what’s going on but in pain both from his ribs and from the pepper spray and having trouble breathing due to the spray, flails around, not attempting to harm Deputy but just trying to get away from the source of pain and breathing disruption; manages to do so, and runs off.
– Deputy, having figured out that the kick did serious damage and/or having realized that ‘I woke him up by giving him a good hard kick’ may not go over well, is now lying to cover up this fact.
That’s not necessarily what happened, of course. But it strikes me as a possible scenario. If there’s medical evidence that the ribs had been broken earlier, or that other injuries to either HC or the deputy are inconsistent with that scenario, then it can be ruled out. Even if the medical evidence is consistent with it, that probably wouldn’t be enough evidence to convict the deputy of whatever charge would be applicable in the given state if the deputy did cause the broken ribs by kicking a sleeping or unconscious man; but it would cast enough doubt in my mind that I’d be unlikely to vote to convict HC of anything. Certainly not of anything requiring intent.
