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Post by baseba1111 on May 12, 2018 7:38:43 GMT -8
This is way off topic, but it is in the off topic board now.
Eggers is correct with his quote, but that is all. He quoted the terminology used by those he interviewed, but he is not correct as per Washington law in terminology. So why do Heimlich and his family use this terminology? Probably because of complication in describing the correct situation and the ease of helping others understand. It is really difficult to say and describe something to the effect "I accepted adjudication for an offense as a minor with the terms being probation and therapy".
Here is an explanation from another: "... he’s legally not innocent (or wasn’t at that time). But he’s also not legally guilty. I know it’s a weird technicality, but it does explain why choosing this path would seem easier for juveniles who even get to make such a deal."
Here is some quotes from Martin Meyer, a Washington lawyer and true expert on this subject, that help in understanding the true difference:
"Our state constitution guarantees jury trials in criminal prosecutions and this right to a trial by jury shall remain inviolate. We have a separate system for dealing with juveniles accused of committing offenses and they are not afforded jury trials. According to our Supreme Court, Washington has been avoiding accusing and convicting juveniles of crimes for more than 100 years.
Under the Juvenile code “An order of court adjudging a child a juvenile offender or dependent under the provisions of this chapter shall in no case be deemed a conviction of crime.” RCW 13.04.240. Our Supreme Court has written: Thus, “An act which would be a crime if committed by an adult is not a crime, and thus not a felony, if committed by a juvenile.” We treat youth here in Washington differently than adults charged with the same offense. We use a completely different vernacular. Our Juvenile Justice Act operates under the philosophy to rehabilitate, correct and direct errant youth. It appears Mr. Heimlich did not require much redirection. We don’t rehabilitate youth to 95% and say “you may now resume your pursuit of life, liberty & happiness. Oh, except you can’t play professional baseball. Sorry.” If that were the case, what else couldn’t he do? Where would you draw the line in the sand?
The reason our Supreme Court denies juveniles the right to a jury trial lies in the distinction between the adult and juvenile systems. It is the rehabilitative purposes and lesser penalties of the JJA which stand in contrast to the punitive purposes and much more serious penalties of the adult criminal system. It is the nature of the penalty, not the criminal act committed that distinguishes the juvenile from the adult system. Our Supreme Court has written in justification of the denial of jury trials to juveniles as follows:
The purpose of the juvenile justice system is ostensibly to establish a system of having primary responsibility for, and responding to, the needs of offenders, as well as to hold juveniles responsible for their offenses. The critical distinction between the two systems lies in the Juvenile Justice Act of 1997’s (JJA) policy of responding to the needs of juvenile offenders. We have in the past found such a policy as rehabilitative in nature, whereas the criminal system is punitive. Such difference has led us to consistently conclude the right to jury trial does not extend to juveniles adjudicated in juvenile proceedings.
This highlights the complexities an accused juvenile faces. Especially in cases involving allegations of sexual abuse where the evidence is nothing more than “he said” “she said.” The principle function of a jury is to find facts, not determine punishment. Our Supreme courts answer to this is, if a juvenile wants a jury trial, then they can decline Juvenile court jurisdiction and be tried as an adult. The trouble with this is if convicted, one would face the consequences an adult would receive.
This further complicates the difficulties of a 15 year old accused of a sex offense faces. Although the standard of proof of beyond a reasonable doubt is the same in an adult criminal proceeding as in a juvenile offender proceeding, it is not the same standard of proof. Who would you want to decide your fate? A jury of one judicial officer wearing a black robe or a jury of 12 of your peers who must be unanimous in their decision?
So yes, youth do often plead guilty to things they didn’t do to avoid likely much worse consequences. And yes, false accusations exist. The Department of Education report references plea bargains and collateral consequences for anyone who would care to read the report."
So the bottom line is, if you go through the treatment program as Luke Heimlich did, you only declare that you are an offender and do not enter guilty/not guilty plea. The intent of the different vernacular is to show the program is about rehabilitation and not about conviction.
After completing the treatment program and the appropriate period afterward (5 years), the records can be sealed. At this time the offender is no longer an offender in the eyes of the judicial system. There is no record of wrong doings.
"I accepted adjudication for an offense” including a personal letter of apology to the victim that acknowledges the offense actually occurred - versus a plea of guilty, seems in laymen’s terms to be a “distinction without a difference”. You care to "keep digging", even with this explanation... really? Laymen vs the Law... that's the entire point... correct? The point many having been making for a year. Highly complicated by an extremely emotional issue, but "convicted" and "guilty" don't apply to Luke in this situation. It may be a distinction that some refuse to make for whatever reason, but it's the FACTS. Gawd... broke my "rule" again. |
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Post by NativeBeav on May 12, 2018 8:18:02 GMT -8
If I recall it right, Corvallis/Benton County had a DA back a few decades ago who lost someone close to a drunk driver. He became a zero tolerance, charge anyone with even the smallest amounts of alcohol in their system prosecutor, and it was not a good time to drink anything and drive. Then we had this guy on the police force www.thenewspaper.com/news/20/2067.aspBecause it is always good to make decisions based on personal bias and prejudice, when in law enforcement  . Anecdotally, I worked for a company many years ago, where our office manager was killed at work. She was crushed by one of the concrete barriers you see sometimes along roadways, to create bunkers for sand, etc. OSHA came out, as did other gov't agencies to do their investigation. Lead investigator determined it was indeed a freak accident, and the business was not at fault (did nothing wrong). However, the owner, my boss, was told that it was the agencies unwritten rule, that whenever there was a fatality, it was their obligation to the family of the deceased to find something wrong, something that needed to be changed, even if there was no crime, no fault - a freak accident. So, the owner had to make some expensive changes somewhat unrelated to the accident, and that was the end of it. I vehemently disagree with making people pay for other people's mistakes - or punishing people, companies that have done nothing wrong "out of respect for the family of the deceased". I think sometimes officers of the law, having seen the horrors of drunk driving, and other mayhem, begin to have their perspective colorized by these events, and become unnecessarily rigid in their application of the law. This is one of the big reasons I am vehemently opposed to giving officers "discretion" regarding DUI charges. Since BAC is proportional for size/ weight, either you are over the limit, or you are not. Giving the officers "discretion" ends up clogging the dockets in court, and makes the justice system/ lawyers lots of money, often getting these ".05" cases dismissed.
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Post by Werebeaver on May 12, 2018 8:26:20 GMT -8
"I accepted adjudication for an offense” including a personal letter of apology to the victim that acknowledges the offense actually occurred - versus a plea of guilty, seems in laymen’s terms to be a “distinction without a difference”. You care to "keep digging", even with this explanation... really? Laymen vs the Law... that's the entire point... correct? The point many having been making for a year. Highly complicated by an extremely emotional issue, but "convicted" and "guilty" don't apply to Luke in this situation. It may be a distinction that some refuse to make for whatever reason, but it's the FACTS. Gawd... broke my "rule" again. I don’t want to give the wrong impression. But it seems like there are 3 groups when it comes to LH: 1. I will never forgive LH. And seeing him in an OSU uniform disturbs me. 2. I forgive LH. He’s done what the law requires and perfection is not required of those who wear the OSU uniform. 3. LH has done nothing requiring my or anyone’s forgiveness. He is the innocent victim of tragic family dynamics and an overzealous legal system. He is to be admired for overcoming these challenges. I’m not in category 1 - far too draconian. I’m in category 2. Along with a lot of OSU fans That I talk to. I just can’t buy into category 3 but understand why others could take that POV. Willing to live and let live. |
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Post by baseba1111 on May 12, 2018 8:50:16 GMT -8
You care to "keep digging", even with this explanation... really? Laymen vs the Law... that's the entire point... correct? The point many having been making for a year. Highly complicated by an extremely emotional issue, but "convicted" and "guilty" don't apply to Luke in this situation. It may be a distinction that some refuse to make for whatever reason, but it's the FACTS. Gawd... broke my "rule" again. I don’t want to give the wrong impression. But it seems like there are 3 groups when it comes to LH: 1. I will never forgive LH. And seeing him in an OSU uniform disturbs me. 2. I forgive LH. He’s done what the law requires and perfection is not required of those who wear the OSU uniform. 3. LH has done nothing requiring my or anyone’s forgiveness. He is the innocent victim of tragic family dynamics and an overzealous legal system. He is to be admired for overcoming these challenges. I’m not in category 1 - far too draconian. I’m category 2. I just can’t buy into category 3 but understand why others could take that POV. Willing to live and let live. I'm not sure I've ever seen a poster on this site in category 3 except for the "overcoming" the obvious challenges when faced with any life altering circumstance. No matter how one may classify other posters, Luke has never played the victim card and I can't imagine what he has had to deal with. And again, saying that doesn't diminish the trauma everyone else in the family has endured. It is isn't an either, or choice... speaking to a topic referring to an OSU athlete doesn't at all say that Luke has been mistreated or has suffered more. Folks have blamed the ineptitude of law enforcement in the handling of certain issues, but not in the aspect of giving Luke a "pass". People have questioned the motives involved when a dysfunctional family has a very public breakdown. But, again not to give Luke some excuse. Almost every case of those "defending" Luke have been in the characterization of the crime/legalities. It includes the lazy reporting of the actual legal "facts" that are readily available... to Eggers and any other caring to report the story. In Eggers case, using "quotes' from those involved is NOT research. Actually finding a legal scholar that could explain what was clearly outlined above is! Even with numerous cites on this forum of said legal facts, posters continue to argue and misrepresent. There is also the multi-layered aspect of any such case that have been discussed, again never to excuse Luke but to shed light on all things we don't and never will know. |
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Post by nabeav on May 12, 2018 22:19:29 GMT -8
So she wasn’t TECHNICALLY drunk and Luke wasn’t TECHNICALLY guilty.
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Post by Werebeaver on May 12, 2018 22:52:55 GMT -8
So she wasn’t TECHNICALLY drunk and Luke wasn’t TECHNICALLY guilty. I won't belabor the LH issue any further. But if the woman athlete in question decides to contest the DUI charge a jury will ultimately decide her guilt or innocence (assuming the DA declines to drop the charges). BTW I like the phrase "technically drunk". Is that like slamming a 2-3 shots of Wild Turkey and doing a tune up on your engine? |
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Post by atownbeaver on May 14, 2018 13:16:02 GMT -8
Look up ANY chart about BAC levels. There are lots of factors including body size and weight. Lets see, what does BAC stand for? Blood Alcohol Concentration. NOT PERCENTAGE!! It's not the percentage of alcohol in your system which would be the same for everyone. It's the concentration which is affected by a lot of variables. And if you don't believe me, here is a chart from Virginia Tech that matches any chart you will look up. Check out the section marked body weight. A women who weighs 120 with a BAC of .04 is considered SIGNIFICANTLY AFFECTED. www.brad21.org/bac_charts.htmlBlood Alcohol Concentration is LITERALLY the percentage of Ethanol in your bloodstream. That is what the measurement is. A BAC of 0.1 means there is 10g of ethanol for every 100ml of blood. (one gram=1 mililiter. same unit. 10g/100ML=10% =BAC of 0.1) The legal limit is 8g of ethanol per 100ml of blood. This is constant for any shape, size, height or weight. BAC is a constant measurement. It is a ratio. How much alcohol is required to reach the same BAC varies by person. Your body weight, your height, your metabolism, food in your system, etc all affect the alcohol required to reach the same BAC. And personal tolerance will vary. 0.04 will affect two people in different manners. Which, of course, is why in Oregon and most places you can get a DUII and be under the legal limit. All it takes is a police officer "trained in drug and alcohol intoxication identification" to testify that in their expert opinion, the person was under the influence. Going to trial for a DUI with a breathalyzer under 0.08 is super dodgy for this reason. We have DUI diversion in Oregon, and many, many, MANY people that blew under 0.08 take it to avoid the risk of trial. Most DUII attorney's will encourage a client to take diversion unless driving is essential to employment, diversion would risk employment, or that is an iron clad fault in the investigation that will get the charge tossed on technicality. Makes sense. if a court finds you guilty, you will likely have 10 days in jail, lose your license for a year, have about 80-120 hours of community service, court ordered rehab, a prohibition on alcohol for your 2 years while on probation, and require a breathalyzer in your car for two years (which costs about $100/month). If you take diversion, you only lose your license if you blew over 0.08, and if so, it is for 90 days only. if not, you keep it. You have to go to 12 weeks of drug and alcohol classes, pass a UI every two weeks during that time. you have to have a breathalyzer in your car for a minimum of 6 months. at the end of diversion, the case is dismissed, and you have no conviction on your record. It should be noted, a requirement of entering diversion is pleading guilty to DUI... in the event you fail your diversion requirements, the charge reverts to guilty and you are in a heap of trouble. I am not going bring up LH per se, but I wanted to highlight some parallels in our system, that encourage people that could be "innocent" to take deals. This concept is woven into our legal system. We make the penalties for things very severe, and the alternative much more enticing. We do this on purpose, it would be administratively impossible for every accused case of everything to go to trial. It would violate every person's constitutional right to a speedy trial. We would need to quadruple our judges and justice department staff to even begin to handle it all, if it wasn't for plea deals and diversion agreements. |
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Post by seastape on May 14, 2018 16:31:40 GMT -8
An OSU female athlete was arrested on Saturday night by the OSP after blowing a .05, nearly 38% below the legal limit. Police report says she "failed to stay within her lane." My advice to her? Take it to trial. No jury will convict you. Unfortunately, you'll be out of about $5,000 in legal fees, and go through a big hassle. Served on a DUII jury about four years ago. cops pulled a guy for turning into the middle lane of Harrison from 6th Street (the street alongside the RR tracks), where the sidewalk bulges into the street and makes a turn into the far left lane neigh-impossible. It's a move used by almost every single driver at that intersection, without being stopped by the cops. He blew an .06, easily handled the field sobriety tests, cop said his driving showed no signs of impairment. It took us 20 minutes to find him not guilty, and 15 minutes of that was sitting around in the jury room, laughing at the cop, and at the poor DA who had to prosecute an unwinnable case because of CPD over-reach. Just another CPD/OSP/BCSO horror story. Yes, DUII is a terrible thing. But .05 is not DUII. A person can still be convicted at under .08% (ORS 813.010(1)(b)); the driving performance weighs heavily in the decision. I note that in the case in which you served on the jury, the FSTs were easily handled and the cop said there were no signs of driving impairment. It makes me wonder why such a case was taken to trial in the first place. The athlete's case, however, was different. If she was weaving all over the road and there is video of it, she could be in trouble.
I don't know when she blew the .05, but if it was a couple hours later, she could have easily been above a .08 at the time of driving (BAC declines at a rate between .010 -- .025% per hour, with most people in the .015 -- .020% range). That essentially means that she could have easily been above a .08 at the time of driving if the breath test was taken 2 hours before.
On the other hand, if she blew the .05 at the time of her arrest and her actions of not staying in her lane were not that bad, then yes, she has a great defense. Even if she got convicted, the trial judge may not sentence her too heavily, anyway. |
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. Anecdotally, I worked for a company many years ago, where our office manager was killed at work. She was crushed by one of the concrete barriers you see sometimes along roadways, to create bunkers for sand, etc. OSHA came out, as did other gov't agencies to do their investigation. Lead investigator determined it was indeed a freak accident, and the business was not at fault (did nothing wrong). However, the owner, my boss, was told that it was the agencies unwritten rule, that whenever there was a fatality, it was their obligation to the family of the deceased to find something wrong, something that needed to be changed, even if there was no crime, no fault - a freak accident. So, the owner had to make some expensive changes somewhat unrelated to the accident, and that was the end of it. 
