The victim says she was driving the speed limit one night on a 2-lane highway in her SUV, when a semi-tractor trailer rig got annoyed with her for apparently not pulling over soon enough for him to pass. The semi then tailgated her so close that his radiator was just inches from her rear bumper. If she had let off the gas pedel, she would have been hit by the truck. There were several vehicles directly in front of her, and there was no way she could get out of the semi's way. This went on for over 10 miles. The victim was extremely frightened by this ordeal.
I think this is clearly Agg. Asslt., but the victim is the sec'y for one of our county attys., and I'd like some other opinions.
I think it is reckless driving, at most. I suppose you could make an aggravated assault, but it seems like quite a stretch to me.
First, I am not sure that the trucker's intent was to use his vehicle as a deadly weapon. Second, had she slowed down, it is speculative that she would have been killed (notwithstanding that she would have substantially caused the situation by doing that). Third, my understanding of items that are not per se deadly weapons is that there must be a substantial likelihood of death for the item to be considered a deadly weapon. Lastly, the trucker obviously did not intend to use his vehicle as a weapon because he could have hit her and did not.
Eggregious conduct: yes. Criminal conduct: yes. Aggravated assault: no. And I have quite a reputation for going after people who kill others with vehicles!!!!
I can vouch for Warren's reputation and I agree with him that this is best dealt with as a Reckless Driving. How did the trucker end up getting arrested for this offense?
Don't you think we need a Road Rage Court? Then we could really sink our teeth into these cases.
I initially liked it as a terroristic threat. 22.07 doesn't require speech to threaten someone. Certainly the driver was in fear of imminent serious bodily injury.
I think given the rate of speed and the proximity of the vehicles, you can make 'threat'.
Carries a higher punishment range than Reckless Driving, but it might not have the same implications on his CDL as a reckless driving charge.
Terry, fortunately for the victim in your case, the reckless driving was indeed "wreck-less".
Too bad a mandatory 2 year TDL suspension with no option of an occupational dl does not
accompany a conviction for such an offense. Those who possess CDL's should be held to a higher standard of conduct than the average idiot driver.
If we're talking about recklessness, what about misdemeanor deadly conduct (PC 22.05(a) - Class A)? You'd have to prove "imminent danger of SBI," which could be a stretch, but it's a stiffer sentence than reckless driving.
I don't see how you'll ever get this up to a felony, but maybe someone will prove me wrong.
I called DPS and spoke with an accident expert. He said that he would expect a 4K lbs. Yukon bumped from the rear by a 80K lbs. semi at 60 mph to lose control and turn over, and at that speed you would definately expect serious bodily injury or death. This man has seen such accidents.
DPS policy is to not allow patrol cars to bump a vehicle they are chasing unless deadly force would be justified, and in that case they prefer troopers use their firearms to stop the vehicle rather than bumping with a patrol car. Troopers are not taught to bump vehicles they are pursuing because it is so dangerous, not only to the patrol car, but because the pursued vehicle could end up going into oncoming traffic.
I asked what distance you had to drive to be guilty of mere tail gating. He said they consider anything shorter than what driving safety classes teach to be tailgating. Driving safety classes teach you need a minimum of one car length (15') for each 10 mph. Semis need more distance than this.
I believe a truck driver who keeps the front bumper of his semi a foot or so from the rear of a private car, at 60 mph for over 10 miles is way beyond being merely reckless. He is clearly "intentionally threatening another with imminent bodily injury" and that in the manner the semi is being used, it is capable of causing death or serious bodily injury.
This DPS cpt. agreed with me that in this scenario the truck driver had committed Agg. Asslt., but he had never heard of agg. asslt. with a deadly weapon charges in such a case.
In answer to Richard Alpert's question: A reserve sheriff's deputy finally stopped the truck, but did not arrest the man. I'm not sure he even gave him a ticket. The S/O in that county has a rather relaxed view towards traffic enforcement. (Come to think of it, they have a rather relaxed view about almost all crime.)
I once sat 2nd chair on a vehicular homicide in which a trucker was speeding and tailgating, then clipped a woman from behind and spun her into on-coming traffic, where another car t-boned her and killed her. We got a conviction for manslaughter (reckless), but the jury gave him probation. It was not an easy case, and I don't know that the jury would have convicted the truck driver if we hadn't had a dead body. To steal Greg's line, good luck with a "wreck-less" trial ...
Creative thinking, but it opens up a Pandora's Box and I still disagree.
Will all tailgating be aggravated assault?? If so, there are probably 500,000 people committing aggravated assault in Texas right now. Are you just going to file on truckers because they have a higher standard?? That might cause some animosity and legislative changes that may hinder prosecutors in the future. What is tailgating?? If I am 4 car lengths behind somebody at 70 miles per hour, I am theoretically tailgating and could theoretically cause the car in front of me to roll if I strike them?? What speed is the cutoff?? What distance is the cutoff?? How do you measure these things when they happen??
I personally prefer to prosecute real crimes: murder, rape and robbery.
I can't recall ever trying anyone for an unreal crime. Of course, some crimes are more important than others. And some crimes seem unimportant from a distance, but are very important when you are face to face with the problem.
I think someone using his CDL and a semi to terrorize a family in a car for over 10 miles is a serious crime. But the static I have seen here indicates to me that perhaps my view is in the distinct minority.
Overcharging an offense is one of the most common mistakes made by police officers and accepted by prosecutors. And aggravated assault is the penal code provision that suffers from the most abuse.
Not every dangerous encounter must be charged as a second degree felony to keep the world safe. To do so is to squander limited resources and prevent your office from keeping the most dangerous criminals behind bars.
I certainly understand the power of starting off strong in a charging decision. But, early on in the process, we must be realistic and reach a resolution of the case that better approximates what a jury would do.
I seriously doubt that a jury would give that trucker prison time. I also don't think a jury's time is best spent on deciding his guilt. If the end result is likely to be a conviction for reckless driving or some type of lesser assaultive conduct, then lets get on with that decision and leave the bigger cases for jury trials and long prison sentences.
It isn't a matter of not caring about the victim of the dangerous trucker. I do. It is a matter of keeping the big picture in perspective.
Where will the line be drawn for aggravated assault. Will all reckless driving become aggravated assault? In returning from oral argument the other day I exited I-20 I barely avoided a collision. It was by my own instincts, since I had observed him being a rude driver earlier on the access road, that I knew that driver on the access road was not going to yield. I decided I had better stop on the eixt ramp and he proceeded through the yield sign at approximately 70 mph. If my attention had not been drawn to him earilier I probably would not have stopped. Just to be clear he should have known I was exiting since I tunred on my turn signals a considerable distance from the exit. I also have been tailgated by numerous semi trucks, including one time which I pulled off the road to avoid and ended up damaging my front end. As scared as I wsas I still do not consider that an aggravated assault.
sounds like this is a decision that your office does not need to be making. The victim is an employee, or has a professional relationship with an employee, and this situation has obviously stirred up emotions in your office. I would bow out and let another prosecutor office handle it.
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