[Ibogaine] Court rules man sitting in vehicle while impaired did not commit crime

DC in AZ dcollier9 at cox.net
Fri Jul 25 09:58:45 EDT 2008


Court rules man sitting in vehicle while impaired did not commit crime
By Howard Fischer
Capitol Media Services

Published on Friday, July 25, 2008

An individual can be drunk, behind the wheel of a car and have the keys in the ignition and still not be guilty of drunken driving, the state Court of Appeals has ruled.

In a unanimous decision, the judges threw out the conviction of Vincent Zaragoza. They said the facts of the situation did not mean he was in "actual physical control" of the vehicle, which is what the law requires.



The ruling, unless overturned, could alter how police deal with people who they believe are ready to drive while intoxicated but have not actually moved their vehicles.

"It could put a lot of people in danger," said Tucson Police Sgt. Fabian Pacheco. He said it undermines the ability of police officers to stop people who clearly are intoxicated from getting on the road in the first place.

"These people that are in those situations are a step away from getting on the roadway and possibly killing somebody," Pacheco said.

And Tucson City Attorney Mike Rankin said the ruling "does give us cause for concern" in prosecuting cases with similar facts, where the person behind the wheel is not actually driving the car at that point.

According to court records, a Tucson police officer observed Zaragoza walking toward a vehicle in a parking lot.

He was unable to maintain his balance and hanging on to other cars.

When the officer got to the car he said he observed Zaragoza sitting in the driver's seat, with one hand on the wheel and the other putting the key in the ignition, though he had not started the vehicle. Zaragoza complied with the officer's request to get out of the vehicle.

A breath test indicated a blood alcohol content of 0.357. That compares with the legal presumption that someone is intoxicated at 0.08.

Zaragoza later testified that he only intended to sleep in the car after having an argument with a companion. And he said he needed the key to roll down the windows.

At his trial, Pima County Superior Court Judge Gus Aragon told jurors they could convict Zaragoza if they found he was in actual physical control of the vehicle.

And the judge told jurors they had to decide that based on whether, considering "the totality of the circumstances, shown by the evidence, his potential use of the vehicle presented a real danger to himself or others."

The jurors convicted him of aggravated drunken driving - his license had previously been revoked - and the judge sentenced him to four months in prison and put him on probation for five years.

But appellate Judge Peter Eckerstrom said that isn't what state law says.

Eckerstrom acknowledged that the Legislature never has defined "actual physical control." He said, though, that people cannot be convicted based on what they might be able to do in the future.

"An impaired person in possession of car keys within a vehicle, however motivated, always has the 'potential' to use the vehicle in ways that present 'a real danger to himself or others at the time alleged,' " Eckerstrom said.

"But a person has not committed an offense until that person creates such a danger by actually physically controlling the vehicle."

Prosecutors argued that the Legislature intended to allow police to stop drunk drivers before they actually drive. That, they said, made it necessary to criminalize the potential use of a vehicle while impaired.

"But nothing suggests the Legislature intended to punish potential acts," Eckerstrom wrote. "Rather, the language suggests it intended to punish actual behavior that creates a potential for harm."

Rankin said the jury instruction the court found illegal is "substantially the same" as the ones given in cases with similar facts.

He said if the decision is not overruled by the state Supreme Court prosecutors will have to come up with alternate jury instructions - ones that appellate courts find acceptable but potentially may make it harder to obtain a conviction.

That presumes that police are able to make the arrest in the first place.

"We're going to continue to aggressively enforce DUI laws," Pacheco said. But he said officers will have to take into account the legal definition of what constitutes "actual physical control."

Pacheco said it's not unusual for those arrested on drunken-driving charges to claim that they cannot be guilty because no one observed them actually driving.

"We see many of those cases where people say, 'I'm just going to stop here,' or they leap-frog going home, stopping and then continuing on," he said. "They have that potential to kill somebody."

But Eckerstrom said the appellate court's interpretation of the law also comports with other court rulings which said the laws should be interpreted to encourage those who are intoxicated to pull over and sleep it off rather than keep driving.
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Don Collier
Phone: 520-417-0436  Sierra Vista, AZ. USA
Senior Software Developer and Solutions Architect 
website: http://doncollier.clickhere2.net
service: Music Records and Tapes Converted to MP3 CDs:
                see http://doncollier.clickhere2.net/about.html
email: dcollier9 at cox.net   alternate: dcollier8 at netzero.com
"Love converts hearts, and gives peace."
__________________________________________________

  ----- Original Message ----- 
  From: Don Collier 
  To: ibogaine at mindvox.com 
  Sent: Tuesday, December 05, 2006 7:46 AM
  Subject: [Ibogaine] Consumption tips


  My recommendation for all, until you get off the best opiates, is to stop doing smack in the AM hours, do only at night-afterHours, which reduces
  your consumption to about 6-8 hours per day (noon - 6pm, or 8pm for the extra nightcap boost, is a good time-frame for better night sleeping after). Remember the
  old saying not to drink too early in the day, its sound.

  This will not only save your budget, but will also allow your body to become more minimally attached to the heavy stuff. Sure
  you can get through until noon. If its a rough time, have a little until midnight or 2am at the latest for that
  extra boost, but try to take advantage of that sleep time you can get.

  The best advice is to add water to smack and squirt that up the nose as the weakest solution possible with some taste
  to it. This works for those that have the black tar anyway. Dont do needles anymore at all, snort tiny amounts if no other way,
  such as using china-white.

  Then your times without anything can be handled by lomotil pills, 1 every 3 hours will maintain. 2 every 4 hours are OK, but will run you out faster.
  Lomotil is a narcotic anti-diareal that is easily obtained from ulcer doctors when you have the need. Do it, or the diareah
  can lead to colitis, dont go there.

  Hope this helps. Try honoring the Good Lord in your life, serious offenses against Him can cause much grief.
  He made the stuff for use, not too much abuse, smile. If you can do Sunday morning at church (completely
  straight of course) try it, getting His help does not hurt. He will take care of you if you honor him.

  Love to all.

  Does anyone know if this list is archived on usenet or google.groups etc, for unlimited future searching ?

  ****************************************************************************************************************************
  Donzo from Chicago in AZ
  service: Music Records and Tapes Converted to MP3 CDs, see http://doncollier.clickhere2.net/about.html
  "Love converts hearts, and gives peace." - last words of Pope JP2 at death in 2005.
  ****************************************************************************************************************************
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