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Drinker versus drunk collision blamed on wheelie-popping biker

On behalf of Terence Gross of Gross & Schuster, P.A. posted in Drunk Driving on Thursday, December 6, 2012.

Both drivers were under the influence. One was drunk and the second was reckless. Because of that, a court has overturned the drunk diver’s prison sentence for DUI manslaughter for a very unusual reason. This is a story about very bad behavior on the part of two motorists. One was drunk and driving an SUV. The second was driving a motorcycle he had acquired 11 days earlier. The biker was speeding, not wearing a helmet, didn’t have a motorcycle license, and had been drinking although he was not legally drunk. The SUV was weaving down the highway when the biker slammed into the passenger’s side and catapulted over the top of the car. He died at a hospital.

It looked like an open-and-shut case against the SUV driver. The driver left the scene and went home, where police later found him. Brought back to the crash site, he failed sobriety tests, fell asleep several times and his blood alcohol level was measured at 0.144. Prosecutors charged him with DUI manslaughter for failing to notice the motorcyclist and after a trial, he was sent to jail with a 12 year sentence. The driver appealed. The Fifth District Court of Appeal agreed the man was drunk, but there was no way he could have seen the biker. The reason? The biker was popping a wheelie.

Recall that the motorcycle hit the car and shot over the roof before crashing to the street on the other side. Police noticed that the front wheel and fork were intact, while the rest of the bike was wrecked. An accident reconstruction expert calculated that, at the instant of impact, the front wheel was pointed up in the air at an 85 degree angle and the headlight was shining up into the sky, making the motorcycle almost invisible. The expert estimated its speed at 70 to 75 miles per hour. A state police expert agreed an ill-timed wheelie may have been the cause.

The appeals court says the state failed to prove the SUV driver caused the biker’s death so he’s guilty of DUI and not DUI manslaughter. The case has been sent back down to Circuit Court for resentencing. The prosecution wants jail time; the defense is asking for probation.

Source: Orlando Sentinel, “Biker likely popping a wheelie,” Rene Stutzman, Nov. 12, 2012

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