May 23, 2011

Open Containers: Absolut Justice

District of Columbia Court of Appeals: Derosiers v. DC Court of Appeals

Vodka is often the preferred adult beverage for those looking to maintain a low profile when imbibing at inappropriate times or places. The prevailing wisdom is that it is not only colorless, but odorless. Less odorous, however, is not the same as odorless.

Appellant Chrishana Derosiers was convicted of an open container of alcohol in a vehicle. She brought this appeal claiming no one proved that the container in question actually had vodka in it. The question for the court was whether the evidence for conviction was sufficient absent a chemical test of the liquid in Ms. Derosier’s glass jar. Sometimes in court, as in life, the smell test is enough and it doesn’t matter whether the glass is half full or half empty.

Ms. Derosiers and a girlfriend were found by Park Police asleep in her Honda. She was behind the wheel. Between them in the cup holder was a glass jar with clear liquid. Office Matula woke the unconscious occupants and observed that their responses were “slurred” and a bit “incoherent,” that they had bloodshot eyes and breath smelling of alcohol. After administering a field sobriety test which produced less than “optimal” results, the cops removed the glass jar, smelled it, and determined it was vodka. Having sniffed out a crime, they poured out the booze and charged Ms. Derosiers with an open container violation.

She was convicted after a bench trial which was affirmed by the Superior Court then taken up to the DC Court of Appeals.

In the high court, Ms. Derosiers claimed that without a scientific analysis of the liquid, there was insufficient proof to sustain a conviction. While noting that vodka is 70 – 80 proof,, proof beyond a reasonable doubt is what's needed for an open container conviction. And that standard can be met by competent circumstantial evidence, to wit, the smell test.

No taste test is required. No scientific analysis of the liquid is required. Just the indicia of alcohol consumption identified, coupled with the “distinctive smell of vodka” coming from the open container, as testified to in open court.

The verdict may be hard to swallow for Ms. Derosiers, but she took her best shot.

This may yet prove to be headache for courts, cops and carousers, but for now, if it smells like booze, you’ll probably lose.

Posted by Mark A. Eskenazi | | Email This Post | Comments (0)

Posted In: Crime and Punishment , Drunk Driving , Evidence , U.S. Court of Appeals

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December 2, 2008

Underage Drinking: Minor Drinking, Major Problem

Supreme Court of Illinois: The People of the State of Illinois v. Jenna M. Christopherson

Can a minor who supplies another minor with beer be charged with unlawful delivery of alcohol to a minor?

Does your answer change if the minor who received the alcohol dies in a one-car accident after drinking some of the contraband brew?

Illinois law provides in part that:

No person, after purchasing or otherwise obtaining alcoholic liquor, shall sell, give, or deliver such alcoholic liquor to another person under the age of 21 years, except in the performance of a religious ceremony or service.

Defendant Christopherson was a minor. She provided the late Jamie Smith, also a minor, with a 30-pack of Icehouse beer and two cases of Bud Light. After his death at the wheel, she was charged under the above section with a Class A misdemeanor (even though the same statute provides that since death resulted, she could have been charged with a Class 4 felony). She moved to dismiss claiming the statute didn’t intend to apply to minors, but to adults who could legally buy booze then illegally give it to minors. In response, the state argued that the language of the statute was unambiguous: Defendant was a person, which was all that was required by law, and as such, she could be charged under the statute.

The lower court agreed with the defendant and dismissed the charge. It also agreed that the evil the statute addressed was “adults providing alcohol to minors.” The state appealed.

The appellate court reversed, finding that “the commonly understood meaning of ‘person’ is ‘an individual human being,’ and that … ‘no person’ would encompass juveniles.” Defendant appealed.

Defendant’s main argument was that if the alcohol laws were read in context, “it’s clear that the entire section is directed only at those people who are authorized to possess liquor,” to wit, adults, and since defendant was not authorized to possess liquor because of her age, she couldn’t be charged (this logic brings to mind the defendant who shoots his parents to death, then asks the court for leniency because he’s now an orphan).

The Illinois Supreme Court wasn’t buying, and neither should have defendant. It found that the statutory language “is clear and unambiguous” and because defendant is “an individual human being” she is a “person” under the statute, regardless of her age.

The true legislative intent of the statute was to keep alcohol out of the hands of minors, no matter how it gets to them. As the court noted, “The tragic facts of this case indicate that the potential harm when alcohol reaches the hands of minors is no different when the alcohol is provided by another minor rather than by an adult.” Moreover, that the state had mercy (or a weak case) and charged defendant with a felony instead of a misdemeanor did not mean that it conceded that the statute was ambiguous or defective.

It’s back to the lower court for Ms. Christopherson to take a plea or go to trial.

Certainly adults know the risks of supplying minors with booze, guns, drugs and other controlled substances. And those who don’t know the risks at least know they can get in serious trouble for doing so. Minors should become aware of the same potential trouble. Unfortunately, the very nature of being a minor is not to appreciate the risks to self and others, to be ignorant of the law, and too often, not to care one way or the other what might happen.

When it comes to minors buying or dying for a drink, there may be more to answer to than just parents, and way more to regret the morning after.


Posted by Mark A. Eskenazi | | Email This Post

Posted In: Crime and Punishment , Drunk Driving , Minors , Other State Courts , Underage Drinking

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July 16, 2008

Insurance Limits: Drinking, Driving & Death

U.S. Court of Appeals for the First Circuit: Stamp v. Metroplitan Life Ins. Co.

If you get so drunk—3 times the legal limit—that you crash your car into a tree and die as a result, does your family collect from your accidental death and dismemberment life insurance policy? Affirming the Rhode Island District Court, the First Circuit Court of Appeals says your family does not collect anything. The policy in question did not clearly define what an “accident” was, so the court had to: It concluded that Mr. Stamp was “so highly intoxicated that his death was not an ‘accident.’” It went on to find that when you are behind the wheel this drunk, you should “objectively and reasonably” expect to die or be seriously injured.

The dissent saw it differently, finding that Mr. Stamp did not set out to kill himself and that the circumstances of his death were no more than a “fatal mistake.” Under the circumstances, his wife should have collected from the insurance policy.

Fatal mistakes cannot be undone. Think twice before you get behind the wheel drunk. You may kill yourself and your family’s chances of surviving without you.

Posted by Mark A. Eskenazi | | Email This Post

Posted In: Auto Accidents , Drunk Driving , Injuries , U.S. Court of Appeals , Wrongful Death

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