Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

ATTORNEY SAM’S TAKE ON WHY SELECTIVE ENFORCEMENT AND UNNECESSARY LAWS SHOULD PUT YOU IN FEAR (PART THREE)

Today, we finish this topic and I provide evidence that I am trying to get these blogs out on a regular basis. The latter item first. Two blogs posted in two days.

And now the important stuff.

You might think that, by yesterday’s blog, I am arguing that DA Morrissey should have been criminally prosecuted. I am not. However, his example shows what we already knew…not everybody gets the same treatment by the prosecutors or courts. Further, some statutes just lend themselves to illogical prosecutions.

Simply, DA Morrissey’s case was handled properly. My client’s, and perhaps yours…maybe not so much.

“But, Sam, how can you fault new laws that mandate educating people about the need for sleep and the problem of drowsy driving?”

I would imagine that the information is already given. If not, I do not fault that part of the laws. Education is good. Of course, burying it in a statute may not be the best way to get it read by most people.

I cannot protest efforts to bring a higher level of education to new drivers as the suggested legislation provides. I would hope that common sense would take care of that without the need for such a regulation, but I have learned that “common sense” is not really so common.

Call it professional experience.

Other statutes, however, which seem to suggest complete medical diagnoses and/or per se prosecution for being drowsy, cranky or typical civil law “negligence”, in my view, are neither enforceable nor sensible. We are not talking about intentional or even reckless behavior here.

In the criminal arena, we are also dealing with a burden of proving beyond reasonable doubt what someone might have or should have known…in this case, about their own mind state.

How do we measure such awareness? Should it be a crime to leave home in the morning having not had your cup of coffee? What do we do with all the police officers and other such workers who work “double shifts” all the time? Perhaps anything other than an 8 hour day should now be made against the law.

Further, why stop at being tired? What about driving with a toothache? I remember how distracting a toothache can be. Many artists claim that great ideas come to them while driving. It would seem that this, too, should be illegal. Inspiration is distracting. Inspired driving, under the current view of the Commonwealth, should be a crime if you are one of the general public.

I recall your attention to the heart patient about which I wrote in my last blog. The heart patient has a heart attack while driving. He passes out and his car hits someone. Was his driving, clearly inattentive, a crime? What if that heart patient had a big dinner of salami and cheesecake the night before? What if he had an argument with his wife? These are even more indications which could precede a heart attack. Should he be prosecuted for homicide if he drove under those circumstances?

Most intelligent people would answer in the negative. There are some places where criminal prosecution does not belong. I would say that questions of simple negligence is one of them.

Now the big question…what does this issue mean to you?

The trend toward criminalizing everything is something we have discussed many times in the past. This is but one more example.

It is also another example of how the Commonwealth and the courts do not always enforce those laws equally.

Thus, every time you talk to someone, get behind the wheel or even get out of bed in the morning, you are best advised to “watch it”.

Beware that if you speak harshly to someone, you may be bullying or emotionally abusing them. Beware that if you “get something off your chest”, even if in writing lyrics to a song, you may be labeling yourself a threat to society. Beware that if you drive, certain things could go wrong which could turn your last name into “Defendant”.

And we have not even gotten to circumstances in which people actually lie.

“Come on, Sam! You are painting a pretty dim picture of daily life, aren’t you?”

I guess I am.

Call it professional experience.

For the full story upon which this blog is based, please go to: http://www.lowellsun.com/news/ci_26081375/townsend-man-found-not-guilty-mv-homicide#ixzz36lyLLJqz
, http://www.ncsl.org/research/transportation/summaries-of-current-drowsy-driving-laws.aspx#current and http://www.bostonglobe.com/metro/2013/08/19/norfolk-michael-morrissey-quincy-court-for-closed-door-hearing-milton-crash/MT1IIJQ3Ei0YyuDkgEYYVM/story.html

Contact Information