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Old 27-08-2007, 23:12   #106
Kai Nui
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John, I think we are arguing the same side of this. My point is, and has been, the proximate cause of the accident. If the nav lights were on, it is not a factor in the accident. If the boat was becalmed, and unable to manuever, the intoxication of the helmsman would not have been a contributing factor, despite the fact it was a violation of the law. It all seems to come back to the sheriff. His boat speed would, if the sailboat had proper lights, be considered the proximate cause of the accident based on not knowing if he was under the influence. A cause must be created by an action or inaction. If the nav lights were on, and the boat was becalmed, there was no action or inaction taken by the sail boat that contributed to the outcome. There was, however, action taken by the sheriff, in operating his vessel at a speed that was not safe for the conditions. Once you eliminate the proximate cause, there is no negligence, and no criminal action to charge Dinius.
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Old 28-08-2007, 00:28   #107
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Quote:
Originally Posted by Hiracer

That's part of what's wrong with this whole case. The fact that the sailboaters may have committed a crime doesn't mean that the deputy didn't.
Thank you! And of course the reverse is also true.

Throughout this entire thread we have been confounding the issues.

Case 1

1/ Sailboater Darius was operating the sailboat
2/ Sailboater Darius was drunk
3/ Sailboater Darius may or may not have had lights on - I like the idea to examine the filaments if the evidence was not destroyed
4/ Sailboat operated by Darius was struck by another vessel and a passenger on the sailboat was killed

Q/ Did Darius's actions or inactions, if proven, result in the death of the passenger under California vehicular manslaughter statutes?

Case 2 -

1/ Deputy Perdock was operating his boat in excess of 40MPH at night
2/ Deputy Perdock allowed his boat to strike the back of a sailboat
3/ A passenger on that vessel was killed

Q/ Did Perdock's actions or inactions, if proven, result in the death of the passenger under California vehicular manslaughter statutes.

All the controversy about the DA's willingness or not to prosecute the Deputy is white noise. All the attempts to excuse Darius based on teh actions or inactions of the Sherrif are white noise.

Regarding case 1. With the amount of media attention this is getting if the DA was not confident that he could prove points 1 through 4 he would be an idiot to go to trial. My estimation is that he is either looking to offload the case with a minimum of face loss or he can prove 1-4 and he is making sure that he closes some appeal doors before the trial.

If there are in fact 9 witnesses or whatever saying the lights were on then clearly the case has no future.
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Old 28-08-2007, 10:05   #108
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For the Record . . .

The individual at the helm of the sailboat and charged with felony vehicular manslaughter is named Bismarck Dinius. There is no one involved in this case named Darius, either first name or last.

Every county has only one Sheriff, who wins his office in a public election. The law enforcement officers who work for him are his deputies. The senior deputy in the sheriff's department is the Chief Deputy. The person at the helm of the 385 hp speedboat was Chief Deputy Russell Perdock.

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Old 28-08-2007, 10:15   #109
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Quote:
Originally Posted by Kai Nui
Once you eliminate the proximate cause, there is no negligence, and no criminal action to charge Dinius.
Yes, we arguing the same side, but come at it from slightly different persectives.

There are six potential crimes commited here:

Sailboat:
1. DUI.
2. Operating the sailboat without navigational lights.
3. Criminal recklessness/negligence in operating the sailboat without navigational lights.
4. Manslaughter for the above criminal recklessness/negligence.

Deputy:
1. Criminal recklessness in operating the motor vessel too fast for conditions and violations of a host of other marine rules of the road (failure to give way, adequate lookout, etc.)
2. Manslaughter for the deputy's criminal recklessness.

Manslaughter is the oddball charge, because it alone includes a causation element. The actions of the accused must have caused a death.

In the case of the deputy, the causation element is easy to meet. Significantly, what the sailors did, or did not do, is irrelevent. Clearly, no death would have occurred had the motor vessel been piloted at a safe speed.

The manslaughter charge against any of the sailors is much more problematic. As I stated earlier, even if the the nav lights were on, there are speeds and conditions at which it becomes impossible to see the nav lights. At those speeds and in those conditions, the question of whether the lights were on no longer has any importance to the causation element. The lights become irrelevent. Thus, in the case of the sailorboaters, what the deputy did, or did not due, remains relevent, because if his speed was high enough it can negate the causation element for the manslaughter charge against the sailboaters.

In fact, I believe this to be the case. At 40 to 50 mph, whether the lights were on, or not, is not relevent, because in all likelihood the deputy would not have seen them. As the preponderance of the evidence seems to now show, that's exactly what happened. The lights WERE on, and he never saw them. Frankly, at that speed, with the background lights on shore, I doubt he ever had a chance to see them. Ergo, his criminal recklessness was extreme, and the failure to charge him with manslaughter is a complete subversion of justice by the DA.

* * *

Let me develop my prior analogy a little more: I'm driving at night with snow and ice on the road at a speed that is beyond my line of sight. In front of me is a car stopped at a stop sign. That car's lights are off. The owner of the car is drunk; a friend who is also drunk is in the driver's seat. The are other passengers in the back seat. They are having a good time at that stop sign, parting where they shouldn't be.

I come up unable to stop, hit the car, and kill a passenger.

Have I committed a crime? Hell yes, at the very least criminal recklessness. Also, I have committed manslaughter. What would you say if the DA didn't charge me with any crime, not even criminal recklessness which has no causation element relating to the death???????

Now, as to the driver of the car at the stop light, he committed a DUI. He committed a traffic violation for failing to have the car's lights on. But did he commit manslaughter?

That's tougher because, if I had no chance of stopping on account of the road conditions and my high rate of speed--even if I saw the car, then the fact that the lights were off was not a cause of the death. The other driver did not commit manslaughter, even if the lights were off.

So you see were I'm coming from? To charge the driver of the stopped car with manslaughter and not charge me with anything is utter nonsense. The manslaughter charge against me is a sure thing, or at the very least the criminal recklessness charge is. It has no causation element. The manslaughter charge against the driver of the stopped car is very problematic. Further, if you throw in the fact that some witnesses will testify that the stopped car had its lights on, the manslaughter charge against the driver of the stopped car makes no sense at all, as the prosecutors burden of proof is 'beyond a reasonable doubt.'

Given that there's no causation element to be proved in a criminal recklessness charge, there is no excuse for the failure to charge me with something. The failure to charge me is an obvious clue that a cover up is in the works.

Now, throw in the that I'm a deputy who for years has worked hand in glove with the DA's office, the stench becomes overwhelming and the reason for the cover become obvious. Now add the fact that the DA's investigation refused to take the testimony of witnesses who say the lights were on. How cow Batman.

I know that in MY community the DA would have been fired or impeach by now. That kind of crap just isn't tolerated here.
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Old 28-08-2007, 11:15   #110
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For what it's worth June 8 had a last quarter moon. I have to believe a full sail would have shown up unless there was lots of confusing bright lights all around--which would have necessitated going dead slow on the part of the power boat.
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Old 28-08-2007, 14:12   #111
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Not sure how this relates to the present thread, but it's an interesting example of drunk driving and felony vehicular manslaughter.

"A man who drove home with a body hanging out of the back of his car after a traffic accident is scheduled to be charged today with manslaughter."

Here's the whole story from today's LA Times:

Man drives with body hanging out of the back of his car - Los Angeles Times

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Old 28-08-2007, 14:18   #112
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Quote:
Originally Posted by Tom Spohn
For what it's worth June 8 had a last quarter moon. I have to believe a full sail would have shown up unless there was lots of confusing bright lights all around--which would have necessitated going dead slow on the part of the power boat.
Tom, the accident occurred on April 29, 2006 at around 9pm local time. It was a moonless night.

StarDate Online | Moon Phase Calculator

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Old 28-08-2007, 14:21   #113
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Quote:
Originally Posted by TaoJones
Not sure how this relates to the present thread
Obviously, the man driving the car never saw the motorcyclist coming because he was busy turning on his lights as he pulled out.
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Old 28-08-2007, 16:29   #114
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Years ago, as a 16 year old member of a program to promote youth interest in law enforcement, I listened as a group of police officers "worked up" a report for a fatal auto accident where the office was to blame. It was explained to me at the time that police officers looked after their own.

Personally I don't know the issues in this case any better than I do the OJ case or California law and won't speculate. But I have to say that, despite all the good they do for our community, I believe that they should never, ever, be allowed to investigate themselves in any matter, period.
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Old 28-08-2007, 16:29   #115
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Years ago, as a 16 year old member of a program to promote youth interest in law enforcement, I listened as a group of police officers "worked up" a report for a fatal auto accident where the office was to blame. It was explained to me at the time that police officers looked after their own.

Personally I don't know the issues in this case any better than I do the OJ case or California law and won't speculate. But I have to say that, despite all the good they do for our community, I believe that they should never, ever, be allowed to investigate themselves in any matter, period.
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Old 28-08-2007, 17:19   #116
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Maybe California law isn't as goofy as I thought. To my surprise, California law actually provides:

Vehicular manslaughter while intoxicated - California Code 195.5(2)(f):

"(f) This section shall not be construed as making any homicide in the driving of a vehicle or the operation of a vessel punishable which is not a proximate result of the commission of an unlawful act,not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner."

Obviously, the accident was not caused by some drunken maneuvering of the sailboat by its skipper - it was dead in the water. In my view, the plain meaning of this provision is that unless DUI/BUI is a felony, the DA will pretty much be stuck with trying to prove that the sailboat was not displaying lights and that this was the proximate cause of the collision. Of course, the only opinion that counts is what California courts think this provision means - and yes, their opinions can be goofy. If I were Dinius, I'd be scared of this language: "commission of a lawful act which might produce death, in an unlawful manner."

Possibly, there is still physical evidence showing whether the sailboat had the switch for its running lights in the 'on' position. But, it is doubtful (even without the benefit of tampering) that there is anything left of the lights themselves - Chief Deputy Perdock managed to destroy the sailboat's transom, take out its mast, and land in front of it.

If I were Dinius' lawyer, I'd get some moonless night pictures of a stern view of an O'Day 27 with its sails up and just its cabin lights on. With some designs you might not see much; with others (especially with a hatch open) it might look like the Sidney Opera House such that no sober power boat driver could fail to see it.
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Old 28-08-2007, 17:56   #117
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The speeding power vessel actualy impacted the sailboat in the starboard quarter, rather than from dead astern. Here's a still picture of the stricken sailboat:

http://www.news10.net/display_story.aspx?storyid=32014

My guess is that the victim who died as a result of that impact was seated on the starboard side of the cockpit, directly adjacent the point of impact. It is correct that the speedboat then tore across the sailboat, severing the mast in the process, and landed in the water ahead of the sailboat.

Depending on what tack the sailboat was on, the luffing mainsail would have been either more visible (starboard tack) or less visible (port tack). Chief Deputy Perdock's guest, the only other adult aboard his vessel and supposedly keeping a lookout, is being sued by the victim's son, along with Perdock, Weber (the sailboat's owner), and Dinius.

http://www.news10.net/display_story.aspx?storyid=31859

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Old 28-08-2007, 18:57   #118
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You're right - the transom was not destroyed (don't know where I read that) and the primary impact was the starboard quarter, so maybe the stern light survived. I'd still like to see some night pictures with lights on and sails up. Not sure how much tacking they were doing under the described conditions, but all views from a starboard quarter approach would be relevant.
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Old 28-08-2007, 19:02   #119
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The tragedy is still that Dinius is getting charged at all. Weber is definitely one lucky guy for not having been holding the tiller of his own boat.

I bet Dinius rues the day he accepted the ride.
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Old 28-08-2007, 19:40   #120
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Dan, you are, of course, correct. State law and DAs don’t understand sailboats. To them all that matters is who is sitting behind the wheel. Maritime law wisely assigns liability to vessels and hence their owners. Captains can be charged, but rarely helmsmen. If (and it’s a big ‘if’ because everything in this case is disputed) Dinius is sitting at the tiller of a dead-in-the-water unsteerable boat. And, Webber is yanking on running rigging, trimming sails, and otherwise trying to find some useable wind, which one is really ‘operating’ the boat?
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