Infuriating

[PamNY]

What about the victim and his earning potential prior to injury? The guy is a surgeon who will now be in pain and unable to work as he 0previously did.

Um, did you actually read the news coverage?

That's the whole point of restitution -- it's an attempt to make up for some of what the victim lost, and it is part of sentencing in the criminal justice system. The prosecutor claims that keeping the guy's earning ability (and the possibility of a civil suit) played a role in his decision because there will be "significant" restitution. That could be nonsense, or it could be true.

He says the plea bargain is actually "more punitive" than what the victim wants (conditional felony). I haven't found anywhere the complete details of the plea bargain -- the two misdemeanor counts could mean two years in jail, but will they?

I thought it would be interesting to consider -- and I still think that, but obviously not here.

[badgercat]

Um, did you actually read the news coverage?

That's the whole point of restitution -- it's an attempt to make up for some of what the victim lost, and it is part of sentencing in the criminal justice system. The prosecutor claims that keeping the guy's earning ability (and the possibility of a civil suit) played a role in his decision because there will be "significant" restitution. That could be nonsense, or it could be true.

He says the plea bargain is actually "more punitive" than what the victim wants (conditional felony). I haven't found anywhere the complete details of the plea bargain -- the two misdemeanor counts could mean two years in jail, but will they?

I thought it would be interesting to consider -- and I still think that, but obviously not here.

I thought I read in one article (I've looked at so many now that I've lost track) that if there had been a felony charge, there would have still been misdemeanor counts that would have "stuck" on the permanent criminal record. But maybe I'm mis-remembering.

A financial planner with a Mercedes probably has a ton of other assets. If you take away his ability to work in his profession (which is debatable, I also read that the DA himself said he wasn't 100% sure the felony would cause the guy to lose his job) so that he'd have to drain those assets, would that be even greater punishment? Again, we don't know any of the real terms of any potential deals, so who knows.

[kacie tri-ing]

Really depressing......


I will say that I am on a number of forums, and I have always enjoyed the lack of drama on this one. I go to my other forums for drama. Keep it up those of you who are posting thoughtful responses

[tangentgirl]

I would think that a felony prosecution would be much more of a detterant than a misdemeanor to the next person in CO who thinks about leaving the scene of an accident like this. Part of why we have laws and penalties is for prevention.

Both the cyclist and the driver were lucky here that someone else came along. The cyclist could have died.

[Eden]

I agree with Badger - this guy probably has lots of assets that could be sold to cover damages.....If he gets charged with a felony (not convicted just charged) he has to disclose it to either his clients or the regulatory board (I don't remember the article being completely clear on this point). That would likely would lose him clients if not his job - but really *so what*... the question is would the DA have made this concession if the hit and run driver had been, lets say, a minimum wage earning landscaper? If the answer is no, then throw the book at the guy - the big heavy one that says felony. I don't think money should be able to buy a person out facing their crimes...

[sfa]

I agree with Badger - this guy probably has lots of assets that could be sold to cover damages.....If he gets charged with a felony (not convicted just charged) he has to disclose it to either his clients or the regulatory board (I don't remember the article being completely clear on this point). That would likely would lose him clients if not his job - but really *so what*... the question is would the DA have made this concession if the hit and run driver had been, lets say, a minimum wage earning landscaper? If the answer is no, then throw the book at the guy - the big heavy one that says felony. I don't think money should be able to buy a person out facing their crimes...

The answer may well be yes, however. The one time I was in court (traffic court) another case that was being considered that day was of a guy who was a professional cab driver with enough points on his record that the speeding charge against him that day would cause him to lose his license and thus his profession. The judge decided to lower the charge so he wouldn't get any points but raise the fine, thus making it possible for the man to keep working (which would allow him to be able to pay the fine).

Now you could argue that someone with that many points on his record should probably not be driving people around in a cab, and I'd tend to agree with that. OTOH, the guy probably didn't have many skills to fall back on and losing his license could have a longer term negative effect on a greater number of people (job loss leading to loss of home, reliance on welfare, fall into poverty for himself and anyone dependent on him, possible increase in crime, etc.). I'm not sure I agreed with the judge's decision that day, but I can't say I entirely disagreed with it either. In either case, it's clear that the earning power of the person charged IS being considered in these cases, regardless if the person charged is rich or relatively poor. It's entirely possible that these sorts of decisions are made every day and we just don't hear about them.

I'm not saying I agree with the DA's decision in THIS case (in fact, I don't); I'm just saying that the decision wasn't unique.

[NbyNW]

A financial planner with a Mercedes probably has a ton of other assets. .

OR, he could be (as DH is fond of saying) "levered out to the hilt." In other words, he may be the kind of person who has borrowed tons of money against his potential earnings in order to enjoy a particular lifestyle.

If his ability to earn is curtailed by a felony charge, people and companies will be getting in line to collect what they are owed. And when the well runs dry, too bad, so sad, you don't get paid. I'm no lawyer, so I have no idea how they would guarantee that the injured party in this case would get to go to the front of the line, if that is at all possible.

[Irulan]

OR, he could be (as DH is fond of saying) "levered out to the hilt." In other words, he may be the kind of person who has borrowed tons of money against his potential earnings in order to enjoy a particular lifestyle.

If his ability to earn is curtailed by a felony charge, people and companies will be getting in line to collect what they are owed. And when the well runs dry, too bad, so sad, you don't get paid. I'm no lawyer, so I have no idea how they would guarantee that the injured party in this case would get to go to the front of the line, if that is at all possible.

That was my thought. Very few of these guys have piles of money sitting around. Unless they are Dave Ramsey fans...

[ridebikeme]

I agree with Eden ! The fact remains that we all make decisions to drive all the time. The difference here is that most people would take responsibility for their actions, and not make excuses. While there may be a sleep apnea problem for this person, the end result is that he caused a very serious accident. What truly bothers me is that he was able to stay awake long enough to drive and call his mechanic about the damages !! And if he does indeed have this problem, how does he stay awake long enough to perform his job?

Regardless of what happens, each time we drive our vehicles we are responsible for our actions. Whether we are tired, talking on the phone, or any other excuse that we can come up with... the fact remains that we are responsible.

Perhaps the family of the cyclist will file a wrongful death lawsuit against the driver, and have some sort of legal action taken. Sounds familiar doesn't it?

[ny biker]

"The new-car smell made me do it."

http://velonews.competitor.com/2010/...hearing_153108


I think bikesnobnyc sums things up pretty well:

"It's becoming increasingly clear to me that if you were addicted to humanity's shortcomings, and in order to feed your addiction you were to to take 21st century America and freebase it so that only its worst elements were left, you'd wind up with the quivering little gooey blob that is Martin Erzinger, which you'd then proceed to smoke and inhale. In any case, the patent absurdity of the "new-car defense" aside, I must say I'm tremendously disappointed in the current state of our rich people. At least "back in the day" they were ruthless in an above-board way, like robber barons, Mr. Burns from "The Simpsons," and the people in "Boardwalk Empire." Now they're just a bunch of cowardly whiners who can't handle the smells of their own luxury cars. Frankly, I think that when a human has devolved to the point where even the richly-appointed interior of his new Mercedes is too much for him, he's really not qualified for life in the outside world and should spend the rest of his life in a small enclosed area like the milk-fed veal calf that he is."

http://bikesnobnyc.blogspot.com/2010...imes-soft.html

[badgercat]

NEW CAR SMELL?!

It's like the Twinkie Defense all over again.

[JennK13]

Um, did you actually read the news coverage?

That's the whole point of restitution -- it's an attempt to make up for some of what the victim lost, and it is part of sentencing in the criminal justice system. The prosecutor claims that keeping the guy's earning ability (and the possibility of a civil suit) played a role in his decision because there will be "significant" restitution.

Um, yes, which is how I knew he was a surgeon.

So, basically, if you want to get out of a felony for committing a crime

1) earn a lot of money so your ability to pay restitution is taken into consideration when charges are filed (the more you earn, the better! that means you can pay more to the victim if they sue you, and the DA will consider that possibility when it comes to charges)

2) hurt some one who also earns a lot of money, thus justifying the need for your potential to remain since the more they earn, the more you MIGHT have a to pay.

3) do it in Mark Hurlbert's jurisdiction

But you're really in for it if you make minimum wage - since your ability to pay restitution is reduced, DA Hurlbert will help you out by charging you with the appropriate (or inappropriate charge - see the Leadville 100 case) which is more likely to lead to jail time (Hey! 3 hots and a cot!) or cause you to lose your job, which isn't that big of a deal since you don't make that much, anyhow.

I just don't get this reasoning. I also agree with Badger and SFA that the guy probably has substantial assests, other than his dented Mercedes, that can be sold off to cover restitution. He should be charged appropriately as dictated by law.

[PamNY]

I just don't get this reasoning. I also agree with Badger and SFA that the guy probably has substantial assets, other than his dented Mercedes, that can be sold off to cover restitution. He should be charged appropriately as dictated by law.

Your post said: "What about the victim and his earning potential prior to injury? The guy is a surgeon who will now be in pain and unable to work as he previously did." That's why I pointed out that restitution could be intended to address that issue.

I really don't want to argue about this; everything I've posted has been meant as a discussion point. I've read a bit about restitution playing a greater role in criminal justice, and wondered if that might be the case here. I don't know that it is; again, it just seemed like a reasonable idea to discuss -- but obviously not with this group.

[JennK13]

I really don't want to argue about this; everything I've posted has been meant as a discussion point. I've read a bit about restitution playing a greater role in criminal justice, and wondered if that might be the case here. I don't know that it is; again, it just seemed like a reasonable idea to discuss -- but obviously not with this group.

I was speaking to the case in point and this DA's history. He is "famous" for these kinds of things. As such, I don't believe restitution played a role in this particular case.

As for restitution's role in criminal justice in general, that would be a different discussion.

[Irulan]

having been on the jury on negligent death cases, fines are in part supposed to be punishment, not restitution.