The Law Is An Ass

[dales]

http://www.sfgate.com/crime/article/S-F ... 562312.php

A San Francisco labor lawyer who ran over and killed a 57-year-old bicyclist in Dublin was sentenced Friday to 30 days in county jail after an Alameda judge reduced his felony hit-and-run case to a misdemeanor over the objections of prosecutors.

Alameda County Superior Court Judge Michael Gaffney also ordered Spencer Smith, 35, to wear an electronic monitoring ankle device for 11 months and abstain from alcohol before beginning his month-long jail sentence. He was also ordered to serve three year of probation.

Gaffney’s decision came a month after Smith pleaded no contest to felony hit-and-run resulting in injury and death, and misdemeanor vehicular manslaughter.

While prosecutors objected to the sentence, Gaffney exercised his discretion, based on his review of the evidence, to reduce all of Smith’s charges of misdemeanors.

“People are saying Mr. Smith got special treatment, but he didn’t. This case was a tragic accident,” said Smith’s attorney, Dionne Choyce.

Choyce said the evidence showed that bicyclist Bo Hu, a tourist from China, was struck while walking his bike in the middle of a dark road. He said Smith, who is blind in his right eye, thought he struck a large rock or deer.

“He didn’t know he hit a person,” said Choyce, adding that prosecutors presented no evidence that Smith was speeding or driving reckless. “This could have happened to anyone. No one would expect someone walking their bike in the middle of the street.”

Smith was scheduled to surrender to authorities to begin his jail sentence, but Gaffney allowed him to put it off until next year after he submitted a note from his wife’s doctor indicating she has pregnancy complications, Choyce said.

On May 15, 2012, Hu was walking his bike north on Dougherty Road in Dublin, near Willow Creek Drive, when he was hit by a car from behind about 11:30 p.m. and died at the scene.

The driver continued north without stopping. Video surveillance footage and cell phone records placed Smith at the scene of the crash and confirmed that he was driving, authorities said.

Smith, who is still licensed to practice law, was arrested a day after the accident when police found his damaged 2012 Mercedes CLS550 in his garage in San Ramon, 3 miles north of the crash site.

“He admitted early on that he never wanted to contest this or go to trial,” Choyce said of Smith.

Bill Hutchinson is a San Francisco Chronicle staff writer. E-mail: bhutchinson@sfchronicle.com Twitter: Bill_Hutchinson

[BoSoxGal]

If he's blind in his right eye, then he should have been able to see the man in the middle of the road, as that would have been well in the field of vision of his good left eye.

In my time as a criminal attorney, both defender and prosecutor, I've seen folks do some pretty outrageous things to avoid a DUI, including leaving injured animals and people at the scene of a crash. I would guess that he was under the influence and being an attorney, knew that leaving the scene and avoiding testing would greatly reduce his exposure. Hit and run with no evidence of intoxication, a legitimate physical impairment that can be argued by a good lawyer leaves him in a much more favorable position than vehicular homicide under the influence.

I wonder about the cyclist; is that a cultural thing to walk in the middle of the road rather than the side? Very sad, in any case.

[rubato]

I agree.

It sounds like a DUI who got away with murder.

yrs,
rubato

[oldr_n_wsr]

Around here (Long Island) they are talking about upping the penalties for hit and run as the authorities think that more then a few people have left because they are drunk. Better to face the hit and run than a DUI with injury/death.

Being an alcoholic who has peed in a cup more than once, they have a test that can tell if you have been drinking in the past 80 hours. But I doubt it can tell how much.

[Lord Jim]

they have a test that can tell if you have been drinking in the past 80 hours. But I doubt it can tell how much.

I believe that would be pretty much useless in court for prosecuting a DUI; they need to establish the BAC at the time of the accident. That's way too big a window.

[Long Run]

On a related subject, it will be a wealthy person who comes up with a THC test that tell the difference between being high and having residue of cannabis (not just for DUI, but also for workplace drug testing).

[rubato]

Why would that make any money? I don't see it.



yrs,
rubato

[Big RR]

It might help with DUIs LR (but then the roadside sobriety tests do this in most states, even if there is a "smell of marijuana" in the car), but the zero tolerance policies would have to be done away with before it might affect workplace testing. Use over the weekend is no more acceptable than use while at work.