Wet &amp; Reckless vs DUI What is the exact difference between a Wet Reckless vs a DUI? Moreover the financial and penal implications? I am in California.
A California "wet reckless" is not something for which you can be arrested. It is the first-level under a DUI that prosecutors will offer as a plea-bargain. It may be offered for a number of reasons, e.g., breathalyzer right at or just above the legal limit, first offense, attitude when dealing with the police, etc. The maximum penalties for a wet reckless conviction are lighter than those for a DUI. $1,000 fine and no jail for wet reckless vs. $3,000 and possible jail for DUI. The probationary period for wet reckless is shorter. However, a wet reckless conviction will still count as a prior conviction when weighing penalties for future DUI convictions and a DUI program will still have to be completed. While there is no court-imposed suspension of your license, your license can still be suspended at the DMV administrative hearing for up to 4 months. While there is a lot of information on the web related to this plea-bargain, it is critical to get a competent attorney to provide counsel on how to deal with such a charge and whether or not to accept a wet reckless plea offer.
This is manslaughter of the vehicular variety Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:... (c) Vehicular— (1) ... driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. This is what they call a wobbler, and could be charged as a felony or a misdemeanor. In the latter case, the maximum penalty is a year in county jail and in the former it is six years in state prison. If the cause was ordinary negligence, it is just a misdemeanor. The details of gross negligence are set forth in the jury instruction CALCRIM 592 A person acts with gross negligence when: He or she acts in a reckless way that creates a high risk of death or great bodily injury; AND A reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with gross negligence when the way he or she acts is so different from how an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act. The "absent-mindedness" defense seems a bit far fetched, but still not everybody who drives inattentively is prosecuted for a felony, or even a misdemeanor. However, it is really hard to imagine not being acutely aware of the fact that people drive on the right side of the road here. Without a more-detailed story, I don't see a basis for deciding what level of negligence a prosecutor is likely to argue for, and what the prosecutor's agenda is: somewhere between no prosecution, and (most likely) misdemeanor manslaughter.
We are talking about larceny and larceny &amp; destruction of property in the two cases. So at the minimum, there are more laws that apply. But what are the laws? Florida names its Larceny statute... Theft: 812.014 Theft.— (1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit from the property. Destroying someone's else property in Florida is in the statute on Criminal Mischief: 806.13 Criminal mischief; penalties; penalty for minor.— (1)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto. So, yes, you would additionally get the criminal mischief charge, but... that only grants monetary damages of 250 USD plus the damages done to the items for first timers, but it can become upgraded to a felony in the third degree - which has a maximum limit of 5 years. Note that damaging items in the course of theft is specifically an aggravating factor for the theft charge, if grand theft is combined with property damage of 1000 USD and more. A bicycle costing between 750 and 5000 USD is grand theft, felony in the third degree according to 812.014.(2)(c)1. This is also the 5 years limit. One could get both sentences... but still only sit 5 years, because often sentences are served concurrently, only rarely consecutively. So, no, you do not necessarily commit a higher offense just for breaking the lock - you'd need to have a 1000 USD damage for that - but you most certainly commit additional offenses that can result in a higher verdict in the end.
This is an excellent explanation. All Australian jurisdictions have (in general) common road rules. In NSW these are enacted by Road Rules 2014 regulation under the Road Transport Act 2013. The relevant provision is Clause 306: 306 Exemption for drivers of emergency vehicles A provision of these Rules does not apply to the driver of an emergency vehicle if: (a) in the circumstances: (i) the driver is taking reasonable care, and (ii) it is reasonable that the rule should not apply, and (b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm. From your statement (a)(i) and (b) would seem to apply so it becomes a question if (a)(ii) does. Well, you don't know the circumstances so you can't judge if it is reasonable that the rule not apply: if the police car were involved in a collision, caught on a red light camera or booked then the driver would have to show that it was. It is worth noting that some road offences like drink or dangerous driving are not in the Road Rules, they are in the Crimes Act and so the exemption doesn't apply to them. It is also not a shield from civil liability although the difficulty of proving negligence goes up because disobeying the road rules is no longer enough.
What is the correct way to handle this situation? Strictly speaking, each driver exceeding the speed limit is in violation of the traffic sign even if everybody else also infringes it. Thus it is completely valid for the police to pull &amp; fine anyone from among those drivers. Statutes like the one you mention are intended for scenarios where a driver departs significantly --and for no apparent [lawful] reason-- from the speed limit, such as driving at 20 mph in a 55 mph zone. Typically a driver would not get pulled over in the scenario you mention (driving at 62 mph where everybody else drives at 65 mph). The exception would be some police department(s) requiring its cops to meet a quota of fines per week, but that would be quite a questionable practice having nothing to do with the legislative intent. Speed limits are supposed to represent normal and reasonable movement of traffic. If informed consensus is that a particular speed limit is inconsistent with that principle (for instance, where limit is artificially low and raising it would not compromise safety), then a request could be submitted to the Oregon Department of Transportation.
You're missing some pretty important details in describing the facts of this case. The most important of which is: What were the agreed terms upon which Alice obtained possession of the car prior to paying? Your description says: Alice takes the car and doesn't pay. If that's literally true, then this case is both criminal theft and the tort of conversion — not breach of contract. Since the remainder of your question references a breach of contract, then I have to conclude that the fact as you stated it is not literally correct and there is some important missing detail about the terms upon which Alice was in possession of the car when she crashed it. So, I will have to invent some scenarios that would fit two other facts you describe: The jury awarded Bob $5,000. The jury found Alice to be in breach of contract. The following are the scenarios I can think of that would match the facts (as I understand them and speculated where important details are missing from the question). Maybe this is a small claims court and the damages are capped at $5,000? I never heard of a jury trial in small claims court but I guess it could be possible. Or maybe it was actually a judge and use of the term jury was careless or otherwise inaccurate? Maybe the terms under which Alice was in possession of the car when she crashed it put the parties in position where they effectively shared liability or risk of damage to the car? Like maybe Bob (or both parties) was/were required to carry insurance on the car while Alice was "test driving" it. I only use the term "test driving" as a placeholder for whatever she was doing with the car prior to paying for it which is left unclear by the question. Maybe Bob was found to have contributed to the breach of contract by something he did or didn't do. Similar to the above speculation about insurance. All this would be much easier to analyze if we knew how and under what terms Alice came to possess the car. Maybe there was only $5k of damage done to the car? Or, alternatively, the car was only found to be worth $5k and, for whatever reason (again, which we can not fully analyze given only the partial set of facts presented) the liquidated value of the car was the basis for the damage award and not the contracted price. (Consistent with @jimsug's comment.) I can easily imagine a scenario where Bob and Alice are close friends or family so the entire transaction is handled very loosely and informally and Bob let's Alice drive the vehicle while she is gathering the money to pay him. In this case, the jury might decide Bob shares the liability with Alice since the terms of the sales contract did not transfer the risk of liability to Alice during the time she was driving prior to payment.
As a linguist who reads laws for a hobby, I would say that "and" legally means what it was intended to mean. There are often interpretive statutes which say that "and" can be read as "or" or vice versa, when necessary (as in ORC 1.02 "And" may be read "or," and "or" may be read "and" if the sense requires it. Delaware doesn't have that as a rule, but it is a rule employed by courts "as required". One approach to interpretation is to discern intent from surrounding text, so we would look at the whole code. The general context is the rule that "A building or land shall be used only for the following purposes". Following Article XXVII of the code, other uses could be permitted because "§115-32. Special use exceptions may be permitted by the Board of Adjustment and in accordance with the provisions of Article XXVII of this chapter and may include...". That section ends with "C:Other special use exceptions as follows", and includes "Private garages for more than four automobiles and with floor area of more than 900 square feet in a residential district". From the list of things enumerated in §115-32, there is no coherent pattern – some things are in the list of special exceptions, some things are in this list, some not. So the "surrounding text" approach doesn't help in this case. Scrutiny of legislative debate is sometimes invoked, especially at the federal level, but there is negligible chance that there is any such evidence here. The almost-final approach is to spell out the competing interpretations, and see if anything jumps out as ridiculous (because it is assumed that lawmakers do not pass ridiculous laws). The two interpretations are "both must be true", versus "one must be true". Since the general rule is that you can go ahead unless it is restricted, then with the "both" interpretation, you need a special exception permit if you simultaneously plan to have more than 4 automobiles (which means, 5+, so 4 is allowed) and floor area greater than 900 sf. Thus if you plan for only 4 cars, or can fit the 5 cars into 900 sf, then you would not require a permit (on the "both" interpretation). Which btw is the literal interpretation of "and". This is not an absurd scenario (using a generous 10'x18' space, which I derived from parking slot regulations in Danbury CT). So it is reasonable to think they meant "both". The "either of these" interpretation says that they are being even more restrictive – you need permission to have a 5+ car garage (regardless of size), and you need permission to have a garage larger than 800 sf (even if there were only 1 car in it). This seems a bit specific since there isn't generally a size restriction on structures in the code – except that playhouses are limited to 150 sf. and can't be tall enough for an adult to stand up. Since the literal meaning of "and" is "both at once", and since no facts about the code say otherwise (i.e. that interpretation does not result in an absurd nullification of some other provision), an objective court should interpret this rule to mean "both at once", thus the government imposes the fewest restrictions on your property. No way to know what they will do.
Q: Why don't US prosecutors press for imprisonment for crime in the banking industry? Q. Why aren't US prosecutors (and UK prosecutors for that matter) not pressing for imprisonment in such cases? Is this because there are no such laws under bankers can be so indicted (notably, in the case reported on above, there is the additional complication of extradition) . . . ? Prosecutors have the legal authority to prosecute bankers for crimes, and not infrequently do press charge bankers with crimes and press for imprisonment for crimes in the banking industry, and have obtained many very long prison sentences in cases like these. For example, "following the savings-and-loan crisis of the 1980s, more than 1,000 bankers of all stripes were jailed for their transgressions." And, in 2008, the laws involved were, if anything, easier to prosecute and had stricter penalties than they did in the 1980s. There were 35 bankers convicted and sent to prison in the financial crisis, although arguably only one of them was really a senior official. This said, the real question is not why they don't do this at all, but why prosecutors exercise their discretion to refrain from seeking imprisonment or lengthy imprisonment, in cases where they either have a conviction or could easily secure a conviction. A former justice department prosecutor (in the Enron case) argues in an Atlantic article that it is harder than it looks. But, he ignores the fact that a lot of people looking at the very Enron case he prosecuted after the fact has concluded that the criminal prosecution may have done more harm than good, leading to significant harm to innocent people (for example by destroying the careers and wealth of Arthur Anderson accountants who had no involvement with the case, due to a conviction that was ultimately overturned on appeal). This changed the pro-prosecution of corporations attitude that had prevailed before then (corporations are easier to prosecute than individuals since you don't have to figure out exactly who in the corporation committed the wrong). This time, regulators and securities law enforcers sought mostly civil fines against entities with some success: 49 financial institutions have paid various government entities and private plaintiffs nearly $190 billion in fines and settlements, according to an analysis by the investment bank Keefe, Bruyette &amp; Woods. That may seem like a big number, but the money has come from shareholders, not individual bankers. (Settlements were levied on corporations, not specific employees, and paid out as corporate expenses—in some cases, tax-deductible ones.) The same link also points out the two very early criminal prosecutions against individuals resulted in acquittals by juries at trial, for reasons that may have been very specific to those trials, undermining the willingness of prosecutors to press even strong cases for almost three years and undermining the credibility of their threat to prosecute criminally. Also, this is not a universal rule. For example, China routinely executes people who are convicted in summary trials of banking law violations and corruption charges. Q. Is this due to the principle of limited liability? No. Banking officials in a limited liability entity (and all banks are limited liability entities) can have criminal liability for acts in violation of banking and fraud laws, notwithstanding limited liability. Is this because . . . powerful vested interests prevents the actual execution of the law as it is intended? If so - how exactly are they prevented? This does happen but not often. Sometimes this happens, but not very often. The corruption angle is a popular narrative on the political very progressive left of American politics, but as I explain below (as you note "Chomsky, the formation of Western capitalism was in large part by due to "radical judicial activism".", and Chomsky is a very left wing social and economic historian almost to the point of Marxist analysis), this visceral narrative isn't really accurate most of the time. First, for what it is worth, the prosecutors play a much larger role in this than "activist" judges do. Secondly, the decision making process is more nuanced and less blatantly corrupt and self-interested than his attempt at "legal realist" analysis would suggest. There are legitimate reasons for someone in a prosecutor's shoes to focus less on these cases, even if in the end analysis you think that they have made the wrong choices in these cases. The case for prosecuting banking fraud severely is basically a utilitarian one, but criminal prosecution is guided by norms beyond utilitarian norms. There are certainly cases where an elected prosecutor or high level elected official is persuaded not to bring criminal charges or to be lenient due to pressure from powerful vested interest. When this is done, a white collar criminal defense attorney, or a "fixer" who deals with political sensitive cases (sometimes on an elected official's staff and sometimes not), or an elected official or political party official contacts the prosecutor or the prosecutor's boss or is the prosecutor's boss, and based upon the plea from the powerful interests (direct or indirect) urges the prosecutor to back off and the prosecutor complies. At the most extreme level, a Governor or President or parole board can pardon someone facing prison for banking crimes, which has happened, but is extremely rare. But, this sort of direct intervention in an individual case is not terribly common. My guess would be that 1% to 10% of banking prosecutions are affected by this kind of influence particular to a given case. This is far too small a number of cases to reflect the reluctance of prosecutors to bring criminal bank fraud cases that we observe. More Often Policy Decisions Are Involved Budgets And Institutional Case Prioritization Much more common would be for the elected prosecutor or the administration that employs an appointed prosecutor to decide to deprioritize a particular kind of case and/or to reduce funding (both at the law enforcement/regulatory agency level and at the subdepartment of the prosecuting attorney's organization level) for prosecution of these kinds of cases as a matter of broad policy. Every prosecutor's office and law enforcement office on the planet has more crimes that it could prosecute and pursue than it has resources to do so, so it is always necessary to have some kind of priorities to decide which of those cases will be pursued. For example, perhaps the Justice Department funds a white collar crime enforcement office with the resources to prosecute only 750 cases a year, and there are 7,500 strong cases that the offices could prosecute. The white collar crime prosecution office has to then prioritize which of the 7,500 strong cases is chooses to pursue. It might, for example, in good faith, decide the focus on white collar crime cases that harm "widows and orphans" and other large groups of people who can't afford to hire their own lawyers to bring civil cases to sue the wrongdoers themselves to mitigate the harm that they suffer. More specifically, a policy set in place by Deputy Attorney General Eric Holder in the Justice Department in 1999 was followed: The so-called Holder Doctrine, a June 1999 memorandum written by the then–deputy attorney general warning of the dangers of prosecuting big banks—a variant of the “too big to fail” argument that has since become so familiar. Holder’s memo asserted that “collateral consequences” from prosecutions—including corporate instability or collapse—should be taken into account when deciding whether to prosecute a big financial institution. That sentiment was echoed as late as 2012 by Lanny Breuer, then the head of the Justice Department’s criminal division, who said in a speech at the New York City Bar Association that he felt it was his duty to consider the health of the company, the industry, and the markets in deciding whether or not to file charges. This was a top level policy choice made a decade before the Financial Crisis arose, not an individualized act of corrupt interference. Advocacy From Representatives Of Victims Another common voice for leniency are lawyers on behalf of victims of white collar crimes (I've been in this spot myself on behalf of clients). Why? Mostly for two reasons: People in prison don't make future income to compensate the victims out of. People prosecuted criminally pay fines and court costs that don't go to the victims and reduce the pool of available funds for the victims. The private lawyers representing victims recognize that not prosecuting a white collar criminal leaves that person at large to commit future economic crimes (white collar criminals are rarely a physical threat to the people in the community around them or to anyone who doesn't do business with them) and that it fails to strongly discourage others from doing the same thing in the future. Institutional victims of banking crimes and other white collar crimes may also urge prosecutors not to prosecute the crimes that victimized them, because they fear that the publicity would harm them more than the criminal penalties for the offender (whom they have ample means to sue in a civil action) would benefit them. The fact that victims seek leniency more often in white collar crime cases than in almost any kind of case (other than domestic violence cases, where victims also often urge leniency out of love and as a result of their economic dependency on the perpetrator), often causes prosecutors to determine that criminal prosecutions seeking long prison sentences are not a priority for the victims of these crimes and to prioritize their case loads accordingly. To get the $190 billion of settlement money that was paid from individuals would have required convictions of 1900 people capable of paying $100,000,000 each in 1900 very hard fought individual criminal cases, instead of 49 civil cases. This may or may not have been possible, as the most culpable figures were often in upper management, while the most affluent potential defendants were in top management and would have been harder to pin with personal criminal liability. Many top managers are relatively hands off in their management style and didn't get into the culpable criminal details. There are plenty of very influential and powerful bankers who were highly culpable who would have had less than $10,000,000 of net worth, much of which wasn't tainted with improper conduct, which isn't to say that prosecutors couldn't have seized it from them for fines and restitution, but it does make the moral case for doing so less clearly compelling. Evaluating Priorities For Limited And Expensive Prison Resources Prosecutors sometimes reason in white collar crime cases that keeping a white collar criminal in prison is very expensive to the state (up to $70,000 per person per year), and doesn't change the risk of physical harm to the general public, and that a felony conviction itself and fines and publicity and probation conditions are often sufficient to mitigate the risk that the convicted person will reoffend and to discourage others from doing the same thing in the future. Parole boards, in systems that have them, often release white collar criminals as early as possible, applying the same reasoning. Also, white collar criminals tend to be model prisoners. An incarcerated white collar defendant is also depriving the public of tax revenues on income that person would otherwise receive if out of prison. A long prison sentence can victimize the public economically in amounts comparable to a moderate magnitude economic crime. Crudely speaking, prosecutors reason: "Why spend huge amounts of scarce prison money to lock someone up when we have murders and rapists and people who steal things at gun point and violent criminals who seriously injure people without justification who really need to be our priority to get off the streets? The devious and dishonest banker doesn't present the same sort of risk to the general public and his conviction and probation conditions should suffice to prevent him from having the ability to do this in the future." Social Class Bias Yet another reason is that often prosecutors and the people who set policy for prosecutors don't see white collar crimes as culpable in the same way that they do blue collar crimes. Most prosecutors spend the vast majority of their careers prosecuting blue collar criminals, terrorists and the like. These are people from a different social class, who live lives very unlike their own, and the people who are victimized by these crimes tend to be middle class or more affluent people and businesses. Banks, for example, are routinely victims of armed robberies which prosecutors prosecute, and of embezzlement by low level employees, which prosecutors prosecute. Bankers socio-economically and culturally are a lot like the prosecutors themselves (who are lawyers), their peers, and the victims they usually defend, and are rarely like the people that they usually prosecute (lower class, often minority people, who have never worked in an office, failed in school, are quick to anger and hurt others, etc.). At an individual case level, a white collar criminal defense lawyer can often marshal very impressive character witnesses to say that the defendant is basically a good guy who messed up once, while this is frequently very difficult for blue collar criminal defendants to do in a way that really reaches prosecutors and judges. The bottom line is that prosecutors (and judges, many of whom are former prosecutors) sympathize with, understand and relate to white collar criminals far more than they do with ordinary blue collar criminals. And, this colors their judgments about what kinds of punishments (criminal or non-criminal) are appropriate for the kind of conduct that these people commit. Their instinct is that a crime that might be committed by someone like me is probably not as serious as a crime that a judge or prosecutor would never dream of committing like an armed robbery of a bank, even though economically, the banking fraud crime may have caused $500,000,000 of harm while the armed bank robbery may have caused only $5,000 of harm.