T1B

Posted: **Wed Aug 02, 2006 11:18 pm**

A man in a car attempts to run his car into a motorcyclist, with the sole intent of smashing the motorcyclist and his passenger into the vehicle in the adjacent lane.

The man in the car had nowhere to go in the adjacent lane since that spot was occupied by a large mobile home pulling a trailer with a boat. Any lane change to the right would mean running into the mobile home/trailer himself. He wasn't attempting to change lanes, he was simply attempting to hit the motorcyclist's bike with his own vehicle.

Note: This incident occured in a state where lane spliting isn't legal. It occured when the motorcyclist with his passenger was inching his way forward between the cars when traffic on a surface street was completely stopped, due to a fire hydrant run amok that'd completely shut down traffic in the two northbound lanes.

Assuming these were the findings following a police report what crime would be charged against the driver of the car?

To me this sounds like attempted vehicular manslaughter, though I definitely don't know for sure. Dins doesn't think it's attempted vehicular manslaughter, but he hasn't offered an alternate charge either...

So, what is the correct criminal charge when a car driver attempts to use his vehicle as a weapon against a motorcyclist on a public road?

Posted: **Wed Aug 02, 2006 11:24 pm**

Van wrote:A man in a car attempts to run his car into a motorcyclist, with the sole intent of smashing the motorcyclist and his passenger into the vehicle in the adjacent lane.

The man in the car had nowhere to go in the adjacent lane since that spot was occupied by a large mobile home pulling a trailer with a boat. Any lane change to the right would mean running into the mobile home/trailer himself. He wasn't attempting to change lanes, he was simply attempting to hit the motorcyclist's bike with his own vehicle.

Assuming these were the findings following a police report what crime would be charged against the driver of the car?

To me this sounds like attempted vehicular manslaughter, though I definitely don't know for sure. Dins doesn't think it's attempted vehicular manslaughter, but he hasn't offered an alternate charge either...

So, what is the correct criminal charge when a car driver attempts to use his vehicle as a weapon against a motorcyclist on a public road?

...following too close!

Posted: **Wed Aug 02, 2006 11:28 pm**

We went over this -- in Oregon, if the irresponsible, writes-his-own-laws motorcyclist is sporting a cali plate, the crime is known as "performing a public service."

And what's funny, is you think I'm kidding.....BWAHAHAHAHAHA!!!!!

But really Van...I cracked up, and cracked up hard. I even made jokes about the "big fancy words," and made "dictionary" jokes.

You think it might be a good idea to consult Webster's before you let TVO tear you a new one(again)?

But seriously...by all means...continue. You trying to sound smart is usually good for a good laugh.

Posted: **Wed Aug 02, 2006 11:28 pm**

Charger, nope, the bike and the car were briefly sharing the same lane, with the bike being in the left lane, between the car on his left and the mobile home with the boat in the right lane.

Two lanes, total.

I edited the above post in order to more fully paint the picture.

Posted: **Wed Aug 02, 2006 11:31 pm**

Van wrote: I edited the above post in order to more fully paint the picture.

Oh, it didn't need any editing to paint the full picture...

The artistic rendering known as "Van: What a Moron" needed no touch-up. It stood just fine on its own.

And you still haven't figured it out...fucking A.

Posted: **Wed Aug 02, 2006 11:33 pm**

Dins, Websters doesn't offer definitions covering the entire criminal code.

Tell me you knew.

Otherwise, I know what "attempted", "vehicular" and "manslaughter" mean, but in terms of it being a specific criminal charge, hey, you're the one saying those three words combined do not equal the correct criminal charge for this occurence. So, I say let's let our resident John Maddens whip out their Telestrators and answer it to a certainty...

Posted: **Wed Aug 02, 2006 11:37 pm**

Van wrote:I know what "attempted", "vehicular" and "manslaughter" mean.

Uhm.....

No.

No, you don't.

Obviously.

Posted: **Wed Aug 02, 2006 11:43 pm**

88 wrote:99.5% of jurors would like to skull fuck those motorcyclists who think they can move through traffic when traffic isn't moving. Just sayin.

88 gets it, except we're talking about a cali being a fuckhead in an Oregon tourist town, so bump that percentage to 101.1%.

Van, I'll help you out a little -- in Oregon, if the cop was in a bad mood due to injuring himself from laughing so hard at your self-inflicted fate, and actually decided to charge someone(trust me...wouldn't happen), the driver of the car would be charged with Assault 3(Motor Vehicle), possibly Assault 4(I think they still have misdemenor assault on the books...I think).

But, that has absolutely nothing to do with why you're such an idiot...this time.

You might want to check on the definitions of those words that you're so cock-sure of.

Posted: **Wed Aug 02, 2006 11:43 pm**

88, go back to my first post...

In this instance the police report described the car driver as intentionally attempting to smash his vehicle into the motorcycle. He was using his car as a weapon, with the intent of smashing the moving motorcyclist and his passenger into the adjacent vehicle.

That's the hypothetical we're dealing with here.

What then?

Posted: **Wed Aug 02, 2006 11:45 pm**

Dins, what are the parameters of "Assault 3"? What level of offense is it, and what's its definition?

Posted: **Wed Aug 02, 2006 11:45 pm**

Van wrote: intent

Figured out why you should shut the fuck up yet?

Posted: **Thu Aug 03, 2006 12:19 am**

[quote="Van"]attempts... intent... Any lane change to the right would mean ... he was simply attempting.... lane spliting ...(WTF)
Assuming....To me this sounds like ..... I definitely don't know for sure

Sheesh - any FACTS TO RELY ON?

Posted: **Thu Aug 03, 2006 12:54 am**

Jsc810 wrote:These threads are always entertaining.

Any time Van gets to beating himself about the face and head, it's entertaining.

When he tries to tell us how smart he is for doing it...priceless.

Posted: **Thu Aug 03, 2006 1:10 am**

Van wrote:88, go back to my first post...

In this instance the police report described the car driver as intentionally attempting to smash his vehicle into the motorcycle. He was using his car as a weapon, with the intent of smashing the moving motorcyclist and his passenger into the adjacent vehicle.

And who were the witnesses who saw this behavior? You'd better have some church-going q-tip to testify to this if you're going to get any sort of assault charges brought against the driver.

Posted: **Thu Aug 03, 2006 1:12 am**

Screw that. Just call the cops, and tell them you're making a citizen's arrest for "attempted vehicular manslaughter."

They'll probably just skip the trial and lock the guy up and throw away the key.

Posted: **Thu Aug 03, 2006 1:30 am**

Real world, w/o more facts, 88 has it. If the driver of the car has a record of this or if Mother Teresa in sporting a new Hog the D.A. may file assault charges.

Law exam answer... Assault needs specific intent and a fear of a battery (Harmful or offensive touching.) You are supplying the intent... "sole intent of smashing" (not sure where you got it) so that is a given. Ditto the fear of a bat cause you gave us that too 'nowhere to go.' So it is an assult.

As for AVM. That would be specific intent to manslaughter someone, falling short of manslaughter. Manslaughter is a death during a nonviolent felony or duing a mis-doh-meaner or with criminal negligence. Negligence is a Tort term so the weeds are only getting thicker. Don't see a felony or mis here. The VC violation is an infraction at best. As for Neg (duty breach causation and damages), this is pretty tuff. Can you really kill a guy by pinning him to a car? Or was motoboy going fast enought to crash and then die from that? Looks like a loser to me Van.

Jsc,
:?

Posted: **Thu Aug 03, 2006 1:34 am**

Diego in Seattle wrote: And who were the witnesses who saw this behavior? You'd better have some church-going q-tip to testify to this if you're going to get any sort of assault charges brought against the driver.

This is a Crim Question not an Evidence question. At least that is the way I'm reading it from Van. Please try and stay on the road, so to speak.

Posted: **Thu Aug 03, 2006 1:34 am**

88 wrote:Van-

I think the police would never charge the driver of the car with any crime unless he actually smeared the motorcycle and its passengers between the two vehicles. He might just have swerved into their lane with the intent of scaring them. At best, all they could do on such facts is charge the guy with some type of harassment or assault, and that ould be a tough proof (because you know the driver just dropped his cigarette on the floor and swerved while trying to pick it up). The dude on the motorcycle, unless he's a grease spot or a quad, makes a very unsympathetic witness in this case. 99.5% of jurors would like to skull fuck those motorcyclists who think they can move through traffic when traffic isn't moving. Just sayin.

Basically I agree with this post. Many many times I would develop evidence on someone, but it simply just wasn't enough to prove. Proving intent isn't as easy as you'd think it is, and your local DA's office typically wants a case that they are pretty sure they will win. I live in Clackamas County which is just south of the city of Portland. Portland is in Multnomah County. MC DA's office seldom will charge somebody with a serious felony in a he said/she said, no physical evidence type of case. It just isn't going to happen. Does it mean that a crime didn't happen? Oh hell no, ...it is just one of those shit happens types of deals. No harm, no foul.

For awhile, our DA's office was even reluctant to bring about a Grand Jury or even sign any type of complaint unless a statement, any kind of statement, even if the person opted to remain silent. Kind of a pain in the ass if you had some eyewitness who personally knew the suspect implicating him in some crime but the cops just couldn't locate the suspect for a statement. Were there exceptions? Probably. We had precinct detectives who used beg us to find certain crooks. They'd develop P.C. for the guy but they couldn't find him for a statement. They'd want the guy arrested/or detained even if they held the P.C. for several months. I used to argue with them all the time about how dangerous that is...for the street cop.

I'm all retired now, so I don't lose any sleep either way. I'm just happy to wake up in the morning. Van, you'd be lucky to even have a crime report taken, to be honest with you. I'd write one for you but it probably won't be more than what we call a "Two liner."

Rip City

Posted: **Thu Aug 03, 2006 1:39 am**

Van wrote:I know what ... "manslaughter" mean~~...~~

I missed this gem.

Here we go again...

What, pray tell, does manslaughter mean Van?

And no cheating off my notes.

Posted: **Thu Aug 03, 2006 2:17 am**

Drive a Cadillac Fleetwood, and own the road.......

Posted: **Thu Aug 03, 2006 2:59 am**

Van, I'm not licensed to practice law in Oregon, so I won't attempt to advise you on Oregon law. As a practical matter, I think TVO and 88 both pretty much nailed it.

I can tell you that in New York, on the facts you outlined, you could not charge the driver with Attempted Vehicular Manslaughter, in that that offense, by statute, requires that the motorist operate in violation of the DWI laws. For the same reason, you couldn't charge him with Vehicular Assault under New York's laws either.

Ironically, you could charge him with Assault, 2nd Degree or Assault, 1st Degree (depending on the extent of injuries suffered by the motorcyclist and his passenger), but in that case you'd have to prove that the driver of the car intended to cause such injury. As a practical matter, of course, the driver of the car, when interviewed by the arresting officer, will never admit to intending to hit the motorcyclist if he has two functioning brain cells. More likely it will be something like, "I was trying to change lanes, and I had no idea he was that close to me."

Most cops I've seen in action aren't going to let him off scot-free in that situation, but as a practical matter, what you're probably looking at in terms of a charge is something like Unsafe Lane Change, which is only a traffic infraction. Maybe, if the cop is really, REALLY ticked off for some reason, he might get charged with Reckless Driving, which is a misdemeanor in New York.

Posted: **Thu Aug 03, 2006 3:17 am**

Everybody is getting away from the basic premise here...

This is a hypothetical situation, in terms of the legal question I'm posing here. There are none of the unknowns everybody's interjecting.

So, okay, let's break it down and make it very simple by removing all the grey areas here. Let's say...

-Right in front of a cop the car driver stuck his head out the window and screamed at the oncoming motocyclist, "Try to pull up here and I'm going to smash you with my car!" The cop is considered by the court to be an expert witness. The cop heard this guy's threat and he noted it in his report thusly: "Mr X screamed a threat to smash Mr Y with his car if Mr Y proceeded forward in stalled traffic. When Mr Y pulled up alongside Mr X Mr X intentionally whipped his car to the right, smashing into Mr Y and forcing Mr Y's motorcycle into the vehicle in the adjacent lane.

Mr X then screamed out, 'I toldja I was going to smash ya!'

Mr X made a threat and then he followed through on his threat to use his vehicle to ram into another moving vehicle, in this case, a motorcycle with two persons aboard.

In my opinion this was a deliberate, pre meditated act on the part of Mr X to ram his vehicle into Mr Y's moving motorcycle."

Yes, the cop even editorialized there at the end. He's just verbose that way. He's Barney Fucking Fife, Eager Beaver Cop Extraordinaire.

So, now, work with me here, TVO...

We have an expert witness testifying to a certainty regarding the accused's specific intent and actions. In fact, the accused's exact words upon later questioning were, "Yeah, I smashed him! Damn right I did! I was hoping to impale his lane splitting ass on the boat anchor of that big ass boat I smashed him into! He was running California plates and he was trying to cut to the front of the lines and I just hate those fuckers! I'd do it again too! Hate those California fuckers! Gaaaaahhh!!"

Again...hypothetical. None of this happened. In reality the motorcyclist managed to wedge on by when the driver of the mobile home pulling the boat picked up on what was happening and was then decent enough to move forward a bit to give the motorcyclist some space forward of the boat, at which point the motorcyclist kicked out the car driver's side mirror before riding away...

What I'm trying to have you describe for me is what would be the specific criminal charge in a "non grey area" case like this when the guy attempted to use his car to smash and very probably injure and quite possibly kill the moving motorcyclists?

If this wouldn't be attempted vehicular manslaughter then what would be the correct charge?

Also, is their such a charge as attempted vehicular manslaughter, under any circumstances?

Posted: **Thu Aug 03, 2006 3:20 am**

Terry, I posted that last post before seeing your response.

Thanks for the response, and can you add anything now that I've clarified the circumstances?

Posted: **Thu Aug 03, 2006 3:26 am**

88, try it again, taking into account everything I just added to clarify this thing to a finite point.

There was no doubt in the motivation. The witness was an expert witness, a cop. The accused freely admitted what he did and why he did it.

I'm not trying to get into the practical aspects of solving a real world case like this, I'm simply trying to find out what the specific charge would be for the specific act, once everything was agreed upon and on the table.

Posted: **Thu Aug 03, 2006 3:42 am**

Moving Sale wrote:
Van wrote:I know what ... "manslaughter" mean~~...~~

I missed this gem.

Here we go again...

What, pray tell, does manslaughter mean Van?

That's kinda what I was getting at.

RACK all of the lawyers' replies, though. I notice they didn't use the word "manslaughter" in that context. Although I did see mention of "homicide." I think "murder" works here, as well.

Hell, I ain't no lawyer, and even I knew that.

Posted: **Thu Aug 03, 2006 3:44 am**

Dins, sorry if you've already answered this one but I gotta also ask...

Your avatar? Who's the Paul Giamatti looking guy, and what's the story with the eye patch and the pancake?

Posted: **Thu Aug 03, 2006 3:51 am**

Van wrote:Your avatar? Who's the Paul Giamatti looking guy, and what's the story with the eye patch and the pancake?

Well...somehow...and I'm still not exactly sure how...bbqjones somehow came up with a pic of me off the web. I strongly denied it, until someone I'd actually met in person tossed me under the bus. Not one of my better moments.

It breifly made the rounds at TSB, then I thought it has quietly died...until that avatar showed up in my PM box...busted.

The eye patch is because I'm a boner-swinging Pirate, and the pancake means I have no idea what you're talking about, as per the age-old messageboard standby of the rabbit with the pancake on its head.

Posted: **Thu Aug 03, 2006 4:01 am**

88 wrote:Motorcycle Karma is a bitch

I just watched that clip, and was thinking of posting it here too...

The guys in the car...nice.

"They'll probably kick our ass!"

The way that moron just road straight off the road, and then the morbidly obese bikers running down after him...

Pure Stupid Americana, and everything that cracks me up about Cruiser Culture, all wrapped up in one little video.

Posted: **Thu Aug 03, 2006 4:03 am**

Dins, thanks.

I guess we can now expect no more cracks from you then about how I look, eh?

Seriously though...Paul Giamatti.

Posted: **Thu Aug 03, 2006 4:04 am**

Van wrote:I guess we can now expect no more cracks from you then about how I look, eh?

Guess again...

You look like a flaming homo.

Posted: **Thu Aug 03, 2006 4:27 am**

Bwaaahaha!!

Truth be told, you actually look FAR gayer than I ever could, what with your cliche'd angst ridden U&L ouevre...

Keep working that endless mochas and art film screenplays angle, Mr Morbid Affectation...

'Cause this...

...is the look that can only be the crestfallen result of the metrosexual douche at the Doc Martens outlet telling you no, he can't go out with you 'cause he's busy this entire August.

Posted: **Thu Aug 03, 2006 4:55 am**

Van wrote: "Try to pull up here and I'm going to smash you with my car!"

That might be charged as a 422 Terrorist threat in CA... Dumbass Unconstitutional law if you ask me. Top that off with a possible assault and you ain't got much*. Again, badguy has a record of this (on parole or whatever) or motoboy is the pope things change some, but not to AVM. W/o some GBI (Great Bodily Injury)to the vic this case is a dog.

*422 can land you in actual prison in CA, but that is for nutjobs, wife abusers and people who fuck with the cops.

Posted: **Thu Aug 03, 2006 5:45 am**

TVO, so it'd basically boil down to some level of assault charge, and nothing more, unless the bike guy was seriously injured or worse, at which point the charge would escalate to something much heavier...

Gotcha.

Thanks.

Posted: **Thu Aug 03, 2006 6:44 am**

Actually, to really break it down into reality...you got shit.

I loved the detective/street cop/DA pow wow's...Van.

Rip City

p.s. Typically, the power breakdown went like this...Dets 35 %, DA 33 %, investigating cop 31 % and the victim 1 %. Had they read this report, it would look worse....DA 0 % (no lookie, no peekie), Dets 0 %, and the street cop 1 %.

Posted: **Thu Aug 03, 2006 12:06 pm**

Van,

Coupla points on your clarification post.

First, a cop would not be considered an expert witness under those circumstances. You may be confused as to what an expert witness is. Basically, an expert witness is someone with specific training in a certain field who, as a result of his/her qualifications, is allowed to testify, within the parameter of those qualifications, as to his/her opinion as to what happened, as opposed to what actually did happen. Basically, an expert witness is entitled to testify as to things of which he/she does not have firsthand knowledge, whereas an ordinary witness is not.

In this case, the cop is not an expert witness. Certainly, he doesn't have the necessary psychological training to testify as to what might have been going on in Mr. X's head at the time of accident, although he can testify as to what he saw and heard. That's not to say that a cop never could be an expert witness. One with training in accident reconstruction could, for example, be considered an expert witness on accident reconstruction. But in this case, your cop was an eyewitness. As such, his testimony, by virtue of being a cop, is entitled to no greater or lesser credibility than is the testimony of any other witness.

The facts you included do not change my opinion as to what would have been the charge under New York law. But in any event, it sounds like Mr. X was some kind of stupid to say that out loud.

Posted: **Thu Aug 03, 2006 3:08 pm**

Van wrote:Bwaaahaha!!

Truth be told, you actually look FAR gayer than I ever could, what with your cliche'd angst ridden U&L ouevre...

You both look like out and out flamers. Why don’t you just fuck and get it over with.

Posted: **Thu Aug 03, 2006 3:09 pm**

Terry in Crapchester wrote:One with training in accident reconstruction could, for example, be considered an expert witness on accident reconstruction.

Or bricklaying if he/she had been doing it for years and a foundation could be laid that they knew bricklaying fwds and bkwds or Chemistry if they got a Phd or whatever in that field. Or blackjack dealer. or...

That was for Van's knowledge base as I know you knew that... and ya can't type everything out. Just didn't want to leave him with the impression that some class was needed b4 someone can be an EW.

Van,
422 can lead to prison in CA so I wouldn't call it nothing.

Posted: **Thu Aug 03, 2006 6:42 pm**

Here ya go, Van...

velocet

Posted: **Thu Aug 03, 2006 6:50 pm**

^^^^ Awesome...totally awesome.

T1B

TVO or Terry...

TVO or Terry...

Re: TVO or Terry...

Re: TVO or Terry...