Nestande Sentencing (Austin, Orange: credit card, college, price)

[owlman]

Maybe it's not all bad for the harsher-penalties-for-distracted-drivers crowd... Does this mean if you check your phone while driving and hit and kill someone you can now be prosecuted and convicted of criminally negligent homicide? It seems like that was the only thing she was found guilty of.

[austin-steve]

Originally Posted by Tralfaz

So if I were to, say, get drunk, fire a few shots at my TV set and go to sleep, only to wake up the next day to find that I had accidentally hit and killed a neighbor (but couldn't remember it), how much time would I serve?

Qualitatively, the results are the same, so presumably the penalty should be the same.

Most likely, in the hypothetical you describe, you'd receive probation too. If you have no previous criminal history and are generally a working upstanding citizen. It would also depend on whether the gun was legally owned by you, why you had it, and the circumstances surrounding what led you to become drunk and take out the gun. And, specifically, the exact charge brought against you, which would most likely be "discharging a firearm in the city", or something like that.

It would also depend on the quality of your defense team and strength of the prosecution's case, just as those factors played in Nestande's case. You wouldn't be convicted of "murder", because that requires both malice and premeditation, but you'd probably be convicted of homicide, which is different than murder.

I think, in this discussion, "10 years probation" is being deemed by many as an "easy" thing, and that it's "not punishment enough".

In fact, many seasoned criminals when convicted choose to serve time instead of probation because probation, depending on the restrictions and reporting requirements, is actually no walk in the park. One does remain "free", but, depending on the individual, it can actually be a greater hell than simply sitting in jail awaiting parole. I'm sure Ms Nestande and her attorney thinks probation is better, but it doesn't mean it will be "easier" for her or that it won't serve as a more effective form of both punishment and rehabilitation.

Let's see what the judge comes up with after the March punishment hearing.

Steve

[Don in Austin]

Originally Posted by owlman

Maybe it's not all bad for the harsher-penalties-for-distracted-drivers crowd... Does this mean if you check your phone while driving and hit and kill someone you can now be prosecuted and convicted of criminally negligent homicide? It seems like that was the only thing she was found guilty of.

There was more than that going on because she wandered into the bike lane. If you can't stay in your lane while check your phone, you shouldn't be checking your phone. Shouldn't be checking your phone while driving in any case.

Don

[Don in Austin]

Originally Posted by CptnRn

You need to look at how the law defines crime, not Dictionary.com, it has no jurisdiction here.

Who says my heart is bleeding for anyone? I just don't see how society has anything worthwhile to gain from jail time for this except a bigger bill for the taxpayers to pay for putting more people in prison.

I think you could make that argument about incarceration for many homicides. Fact is, homicide needs to have serious consequences to discourage the practice.

[CptnRn]

Originally Posted by Don in Austin

I think you could make that argument about incarceration for many homicides. Fact is, homicide needs to have serious consequences to discourage the practice.

But this was not a homicide, you clearly do not understand the difference.

Homicide: The deliberate and unlawful killing of one person by another; murder.

Nothing about this was deliberate.

The law makes deliberate distinctions between the various ways a person can lose a life. Accidental and unintentional is at the lowest level and deserves the least punishment.

[verybadgnome]

Originally Posted by CptnRn

No doubt she used poor judgement after the accident, she panicked, people do that, it does not make them evil. Our prisons are already overcrowded and expensive to operate. I see little benefit to society coming from putting everyone in prison who uses poor judgement and panics at some time in their lives.

Your argument falls apart because she used poor judgement not just after the "accident," but before it too. By choosing to take the wheel after five drinks she bears full responsibility and is criminally liable for any outcomes, even ones as horrendous as taking another life. This is why we have in this society zero tolerance for drunk driving, we know the consequences and we have appropriate, severe penalties.

And sorry I have never driven after five drinks. I guess that makes me a teetotaler in your eyes, but know this just because a lot of people have "been there" does not excuse the behavior one iota.

And I will also throw this one out there. Based on her limited knowledge she could have left the scene of the accident with victim who might have lived had Nestande offered help. Causing an accident and then wanting to save your own skin while leaving someone to bleed to death is indicative of someone with low character and society does not owe them a second chance. Yes, this is the type of person that should be in prison, on tax payer dollars, and should not be in any type of occupation where she is responsible for the well-being of others.

I do agree that this in not murder because it was not deliberate. However, gross negligence resulting in manslaughter is just a notch below voluntary manslaughter in my book and should have at least a minimum prison time.

[blueskies85]

It would also depend on the quality of your defense team

So the penalty depends, in part, on the quality of defense you can afford. In other words, you can often buy a lighter sentence if you have enough money. I'm not surprised that this upsets people.

Nothing about this was deliberate

Accidental and unintentional is at the lowest level and deserves the least punishment.

She would deserve the least punishment if she stopped and called 911 to have them attend to the victim. In this case I would agree and feel some measure of sympathy for her. But she didn't. She deliberately drove away, not knowing if the young woman was alive or dead. Would your opinion change if the victim was still alive and died because she was not treated in time?

[Don in Austin]

Originally Posted by CptnRn

But this was not a homicide, you clearly do not understand the difference.



Nothing about this was deliberate.

The law makes deliberate distinctions between the various ways a person can lose a life. Accidental and unintentional is at the lowest level and deserves the least punishment.

My understanding is she was convicted of negligent homicide. She admitted to drinking previous to the homicide but since her lawyers got her off the DWI charge she was not convicted of murder, true. DWI is a serious crime, a death that occurs from a serious crime is one form of murder.

She got into a car after an evening of drinking, looked down to check your phone, then wandered into the bike lane causing an innocent person's death. Driving a car after an evening of drinking, taking your eyes of the road to check your phone are both deliberate actions which resulted in a death.

Nobody held a gun to her head and forced her not to take a cab or other safe ride home, come get her BMW the next day. Nobody held a gun to her head and prevented her from waiting to check her phone at the next red light or after she got home. There was no conspiracy to shield her from the knowledge that driving after an evening of drinking and looking down at your phone while driving are practices that put the public at risk.

[scm53]

People here are throwing around all kinds of opinions and labeling them as "facts". Let's set a little ground truth.

1. "She's a murderer." Without premeditation, you can't have a murder conviction.

2. "She was driving drunk." Not proven. After her arrest, there was no BA test given. Even hours later, if she was intoxicated at the time of the accident, there would have been a detectable level of BA. Bad mistake by the APD. For the record, she testified that she had a shot, one full beer, half of four more beers and a couple of sips of a vodka drink. Stretch that over several hours and yes, it is possible that even a slight woman didn't consume that amount of alcohol and not be legally intoxicated.

3. "She should have gone to jail." I have a good friend who was one of the leading criminal defense attorneys in Austin - now retired and living in France. Did several high profile murder cases. He always told me he could get me off any first time offense, including murder. I don't think anyone can point to a pattern of jail time for non-intoxication vehicle death cases for first time offenders with no priors. I could be wrong - please prove me so.

Did she have a good defense? Yep, and if it were my kid, I would empty every account I had to keep them out of jail. Bet any parent here would as well. Doesn't mean they wouldn't answer to me, but that's what I'd do. But I have to wonder if some if the hate here isn't caused by just that fact - toss in the fact she was driving a BMW, worked for a state representative, was young, pretty - heck, even the fact she worked on the Rick Perry campaign - and all of the Austin sensibilities are outraged. Irrationality flows forth. Envy is a powerful emotion, and I haven't seen as many places where it is part of the landscape as its in Austin.

Final point - not guilty doesn't mean innocent.

[verybadgnome]

Originally Posted by scm53

People here are throwing around all kinds of opinions and labeling them as "facts". Let's set a little ground truth.

1. "She's a murderer." Without premeditation, you can't have a murder conviction.

2. "She was driving drunk." Not proven. After her arrest, there was no BA test given. Even hours later, if she was intoxicated at the time of the accident, there would have been a detectable level of BA. Bad mistake by the APD. For the record, she testified that she had a shot, one full beer, half of four more beers and a couple of sips of a vodka drink. Stretch that over several hours and yes, it is possible that even a slight woman didn't consume that amount of alcohol and not be legally intoxicated.

3. "She should have gone to jail." I have a good friend who was one of the leading criminal defense attorneys in Austin - now retired and living in France. Did several high profile murder cases. He always told me he could get me off any first time offense, including murder. I don't think anyone can point to a pattern of jail time for non-intoxication vehicle death cases for first time offenders with no priors. I could be wrong - please prove me so.

Did she have a good defense? Yep, and if it were my kid, I would empty every account I had to keep them out of jail. Bet any parent here would as well. Doesn't mean they wouldn't answer to me, but that's what I'd do. But I have to wonder if some if the hate here isn't caused by just that fact - toss in the fact she was driving a BMW, worked for a state representative, was young, pretty - heck, even the fact she worked on the Rick Perry campaign - and all of the Austin sensibilities are outraged. Irrationality flows forth. Envy is a powerful emotion, and I haven't seen as many places where it is part of the landscape as its in Austin.

Final point - not guilty doesn't mean innocent.

I don't think a BAC test should be the only means of proving drunkedness, and knowing that will cause even more people to flee the scene. Eyewitness testimony by a friend that described her as "sloppy drunk" and her own admittance to having 5 drinks should be enough.