 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Firey v. State7/14/2002
s emergency flashers while he was being towed because it would have ruined "a critical, expensive part in the fuel injection pump[.]" Although his vehicle was equipped with emergency flashers, they were tied into the ignition system, and leaving the ignition switch on without the engine running would have caused extensive damage to the vehicle. The evidence that Dr. Aarons was not using his emergency flashers was not presented to the grand jury.
Firey argues this information was clearly exculpatory and failure to present it to the grand jury called for dismissal of the indictment. He contends this information was exculpatory because it demonstrated his lack of recklessness in causing the accident.
The state has a duty to present exculpatory evidence to the grand jury, but "only material substantially favorable to the defendant need be presented." Evidence is deemed "substantially favorable," and thus exculpatory, when its production "tends, in and of itself, to negate the defendant's guilt." Evidence that "skilled counsel might develop and rely on to argue reasonable doubt" or use to impeach a witness is not exculpatory under this test. Further, failure to introduce exculpatory evidence is harmless if the strength of the other evidence before the grand jury sufficiently justifies the indictment.
Judge Card properly could have concluded that the evidence Firey argues was exculpatory was not evidence that tended, in and of itself, to negate Firey's guilt and instead was evidence that a skilled counsel might use to argue that Firey did not act recklessly in hitting Dr. Aarons. Moreover, Judge Card properly could have concluded that the presentation of this evidence to the grand jury would not have appreciably influenced the grand jury's decision to indict Firey. We conclude that Judge Card did not abuse his discretion in refusing to dismiss the indictment.
The imposition of separate sentences for driving while intoxicated and assault in the first degree does not violate Alaska's prohibition against double jeopardy
In his trial sentencing memorandum, Firey argued that the DWI conviction must be set aside because, under Whitton v. State, he could not be convicted of both assault and DWI. Judge Card rejected Firey's argument; he found that the DWI and the assault were two separate crimes protecting different societal interests and, thus, separate convictions and sentences did not violate double jeopardy.
Firey renews his argument on appeal. Firey argues that Judge Card erred in sentencing him for both assault in the first degree and driving while intoxicated. He argues that the charges arose out of the same criminal incident and that both statutes protect the same societal interest - protection from physical injury. He argues that because the state relied on Firey's intoxication to prove his recklessness, the state was precluded from seeking multiple sentences for that single act under the double jeopardy provision of the Alaska Constitution.
Whitton sets forth the applicable standard for determining whether imposing multiple punishments arising out of a single criminal event violates double jeopardy:
The trial judge first would compare the different statutes in question, as they apply to the facts of the case, to determine whether [they] . . . involved differences in intent or conduct. He would then judge any such differences he found in light of the basic interests of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments. The social interests to be considered would include the nature of personal, property or other right
Page 1 2 3 4 5 6 7 8 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|