It is up to a jury now

[petersea]

"When I anchor my boat, I have a few beers and maybe a shot of whiskey. While I do not drink enough to really get drunk, I may be over the legal limit at any given time. Technically I am still in command of my vessel. What happens when a powerboat runs me down? "

Tim, here is my take on your scenario. being in command of the vessel is not operating it. Lift the anchor and facts change. Being at anchor would be the equivalent of sitting in a parked car in a parking lot. (Be real careful here cuz in some states sitting in the drivers seat or being in the vehicle with the keys in the ignition is considered "operating".) You are not operating the vessel.. big difference. Maybe a little like being drunk in your house is not quite the same thing as public drunkenness. Of course this assumes you are not anchored in the middle of the channel ! !

I got to ask why it is OK for you to have one beer (and I agree one beer would not diminish your capacity) with your crew but you would refrain if there was a child on board ?? If it is OK is it not OK all the time ?? It would have demonstrated to a child safe and responsible alcohol consumption. Would it have been that much a issue wait until you got back to the dock ?? I would guess there must not be an "open container" law in Maine.

"I do not think anyone here has come out and said it is OK to drink excessively and operate a vehicle be it a car or boat."

I disagree with this statement. While no one came out and said it was OK quite a few people ,as evidenced by the poll results that put all the responsibility on the power boat operator and none on the sailboat operator. The implication is if the powerboat operator is 100 % percent wrong (reread some prior postings) the sailboat did nothing wrong. Implying the sailboats operator's diminished capacity from the alcohol was not in any way a factor. I still believe fault on both parties ! I really would have liked the poll results to acknowledged that both parties have some degree of responsibility mostly due to the alcohol factor. It is well past time that the public not accept operating a vehicle or vessel after having been drinking . I guess will will just need to wait for the jury to return it's verdict.

 

[Stu Jackson]

Drivel...

Pete, you're my "kind of guy" standing up for your ideas. I disagree completely and think that my earlier post #106 explained why. The sailboat was a sitting duck, and all this nonsense about sobriety checks and blood alcohol levels is such a smokescreen it makes me gag. I support MADD completely, but somehow an almost motionless sailboat being run down by a speeding motorboat in the dark is a bit much to start wailing on the sitting ducks for simply being in the way of the crazy deputy. Then exacerbated by the cover up.

And, Pete, I'm sure you meant collusion in your first post, right?

BTW, I sailed Clear Lake for a number of years, kept our boat in Nice on the north shore. There were no "navigation" markers on the lake at all. In the mid-80s some folks tried to put together a "chart" of the lake for racing. The locals, who used to race sailboats, too, hooted 'em out of town on a rail for trying to get too fancy: "Use the road map, Ed, at least it's close to what the lake looks like!"

 

[Tim R.]

I got to ask why it is OK for you to have one beer (and I agree one beer would not diminish your capacity) with your crew but you would refrain if there was a child on board ?? If it is OK is it not OK all the time ?? It would have demonstrated to a child safe and responsible alcohol consumption. Would it have been that much a issue wait until you got back to the dock ?? I would guess there must not be an "open container" law in Maine.

Because children can easily distort situations. I would not want a child of a friend going home and saying "they were drinking on the boat" without the parents knowing that it was fairly innocent. That said, I do not think I have ever had a minor on my boat without one of their parents on board so it is really a moot point for me.

Not a big issue to wait but it is a personal choice I make that I feel does not impact the safety of my crew. This is actually the only time I condone drinking alcohol while under way. The bottles never open until I drop the hook otherwise. Operating my 4hp rib is another story

As far as I know there is no enforced open container law on the water.

 

[Bob V]

Open container laws

I can verify that there is no open container law in WA state as I was involved in a collision with a boat that ran into my stern while the skipper was drinking. My boat was dead in the water at the time because I had stopped to render assistance. The skipper of a 60 ft trawler tried to come alongside (without my knowledge or consent) while I was down below decks fetching some oil for him.

The accident was investigated by the Sheriffs Dept and CG and they both verified that there is no law against the skipper driving with a beer in his hand. He was not given a sobriety test because he did not appear drunk to the authorities. They blamed the accident on his incompertance to operate a vessel that he had just purchased and had no experience with. It was his first boat ride.

There is however an open container law for boats that have no head and galley in Canada so don't try to drink a beer in the dinghy on the way to shore there. It is also illeagal for the operator of any boat to be drinking regardless of what size boat in Canada. The Canadians where amazed that I could be operating either my dinghy or sailboat while drinking back on our side of the border.

Disclaimer: while I do occassionally drink a beer at the helm. My blood alchohol content has not been anywhere near 0.08 in the last thirty years or so even at home. Drunken operators should be prosecuted to the fullest extent of the law.

Yes, I believe that Dinius was a drunken operator. It seems that is a verified fact. The real tragedy of the boat accident is that no one is being charged who is responsible for that accident. If I was stone cold sober in that situation there would have been nothing significant that I could have done to avoid the fatal collision.

 

[John]

If I were on that jury

and the judge allowed the jury to know all the facts of the case, I'd vote "not guilty" and I'd hold out until hell froze over if I were the only one to vote that way. Here's why:

A "guilty" verdict will be used to completelye exonerate Purdock and shield him from any lawsuit. He will literally get away with murder.

As for the judge being in on it - how can the judge possibly say with any logic that questions on navigational rules aren't relevant? That's ridiculous. If I tail ended another driver, don't you think it is fundamental that a jury should know who legally is at fault in that instance?

The fix is in and the judge is in on it. Hopefully, the jury will see past it.

 

[Alan]

Let's just say for a minute that the sailboat helm was completely drunk out of his mind but was holding a steady course with no change of speed or direction. How would the alcohol have been a factor in the equation? I'm not arguing the technical issue of whether or not it is legal, just want to know 'how' under those circumstances is could be a factor?
It would have been the same if the sailboat was on autopilot. The skipper is drunk, yes, but it was irrelevant to the situation. Nothing the sailboat skipper could have done to alter the outcome. The total control of the crash rests with the driver of the cigarette speed boat.

 

[Ross]

OK.

I really am saddened by the fact that apparently so many still think it is OK to operator a vehicle or vessel after having been drinking. There is a appropriate time to enjoy a drink but it is never when operating a boat ! !

I grew up in a family that included some teetotalers and I have heard many expressions of intolerance to the consumption of alcohol in any amount and at almost any time. This accident would have had the same out come if the crew of the sailboat had been cold sober or falling down drunk. There was no evasive manouver that the sailboat could have taken that would not have been dangerous. They were hit from the stern while being essentially stopped. Very much the same as if you were slowing for a traffic signal and were rearended by a speeding driver. Drunk or sober you couldn't prevent it.

 

[Steve Christensen]

I can verify that there is no open container law in WA state as I was involved in a collision with a boat that ran into my stern while the skipper was drinking. My boat was dead in the water at the time because I had stopped to render assistance. The skipper of a 60 ft trawler tried to come alongside (without my knowledge or consent) while I was down below decks fetching some oil for him.

The accident was investigated by the Sheriffs Dept and CG and they both verified that there is no law against the skipper driving with a beer in his hand. He was not given a sobriety test because he did not appear drunk to the authorities. They blamed the accident on his incompertance to operate a vessel that he had just purchased and had no experience with. It was his first boat ride.

There is however an open container law for boats that have no head and galley in Canada so don't try to drink a beer in the dinghy on the way to shore there. It is also illeagal for the operator of any boat to be drinking regardless of what size boat in Canada. The Canadians where amazed that I could be operating either my dinghy or sailboat while drinking back on our side of the border.

Disclaimer: while I do occassionally drink a beer at the helm. My blood alchohol content has not been anywhere near 0.08 in the last thirty years or so even at home. Drunken operators should be prosecuted to the fullest extent of the law.

Yes, I believe that Dinius was a drunken operator. It seems that is a verified fact. The real tragedy of the boat accident is that no one is being charged who is responsible for that accident. If I was stone cold sober in that situation there would have been nothing significant that I could have done to avoid the fatal collision.

Actually, wrt to drinking and boating in Canada, my understanding is that it is not legal to even have the beer in the dinghy at all - open or not - unless you are in the act of transporting the beer to the mother ship from shore. I know more than a few Americans who have been surprised by this, especially when the Canadian authorities took away their beer!

 

[Bob S]

It's almost the equivalent of walking on the side walk after a few beers and being run down by a car. Would that be your fault for walking drunk?

I do have a question. Reading BadO's post made me think that Dinius was pretty drunk when I originally thought he might have had a beer or two. How many beers over how long a period does it take to get a blood level of .08?

This whole event is really tragic. It conjures up a lot of emotions because like so many have posted, this could have happened to any one of us. Dinius was in the wrong place at the wrong time.[FONT=&quot]
[/FONT]

 

[Bob V]

I found out about the Canadian policy

from a couple of members of "Coastal Watch". I might have their organizations name wrong but was told that it was like a version of our Coast Guard Auxillary combined with Homeland Security. These are volunteers that visit boats at anchor or docked and look for suspicious and/or dangerous activity.

I was unaware that my dinghy was not legal as I was using it because for one thing there were no flares on board. I told them I was headed for Canoe Bay (the next day) to pick up an anchor shackle to replace the Chinese cast one that I had with a forged and rated Canadian shackle. They happened to have one in their spare parts stash and went back to their mothership to fetch it for me.

Of course, they refused to accept any money for it but mentioned that they had a fondness for beer. I was down to my last bottle and gave them that with my regrets that I did not have more. As they were starting to leave I remembered that I had a bottle of rum on board and offered them that as well. They checked to make sure that the seal was unbroken because as they explained to me it would be illegal to transport it any distance by dinghy if the container had ever been opened. If the bottle had a broken seal we could only transport from our boat to theirs by rafting up to them.

 

[Cpt. Jon]

It's almost the equivalent of walking on the side walk after a few beers and being run down by a car. Would that be your fault for walking drunk?

I do have a question. Reading BadO's post made me think that Dinius was pretty drunk when I originally thought he might have had a beer or two. How many beers over how long a period does it take to get a blood level of .08?

This whole event is really tragic. It conjures up a lot of emotions because like so many have posted, this could have happened to any one of us. Dinius was in the wrong place at the wrong time.

This same question went through my mind. What I always thought was that one beer would put you over the legal limit. So I looked up some BAC calculators and they all seem to say that it would take 3-4 beers within an hour to reach .08 BAC for a 190lb man (not that I weigh that much :naughty. The rate of matabolizing the alcohol varies a lot from person to person and situation to situation it seems, so but it doesn't seem that 1 hour per drink is a safe assumption if you are drinking faster than 1 drink per hour.

It seems that 1 beer takes you to about .02 and you probably metabolize it at a rate around .015. I am not an expert and the sources were on the internet and may not be reliable, but they were all within a range that I could think that they are fairly reasonable.

Jon

 

[foolproof]

Dinius case

Why don't sharks eat lawyers? Professional courtesy!!

The DA in this case is a fraud. He is not serving anyone but himself and the Sheriff's Department. Not sure what his motive is, but it is not serving in the publics best interest. This is so clearly a case of prosecutorial misconduct, and the DA really should be brought up on charges for this misconduct. Or maybe taken for a night time boat ride with his deputy buddy! I wonder if he'd go with him.

 

[Ron20324]

Good point, FP- take the entire court out at night at the speeds involved !

 

[John Nantz]

Alcohol testers were not calibrated

What about legally drunk?

Yes, I believe that Dinius was a drunken operator. It seems that is a verified fact.

According to the trial, the Police Department said that the testers (breathalizers or whatever they were) had not been calibrated "in a long time." By that, they meant the instruments had not be calibrated within the required time limit to make them legal for use.

Ergo, if they were not legal for use, then, if they were used on the operator the results are not legally admissible. Right?

At least that was the argument the defense used.

 

[John Nantz]

Updated Aug 5th - Recreating the events that night

From the Record-Bee web site: http://www.record-bee.com/ci_13002735?source=most_viewed

and another link. http://www.record-bee.com/ci_12995308?source=most_viewed
The speedboats designer said the operator of the speedboat would have been able to see the stern light of the sailboat. However, in my experience, a white stern light could have easily blended in with the background lights on shore and would have been extremely difficult to pick out from a 50mph speedboat.

 

[petersea]

" how can the judge possibly say with any logic that questions on navigational rules aren't relevant "

OK let me try this...Dinius is charged with boating under the influence. So how do the navigation rules apply ?? He was not charged with a breach of the navigation rules but with operating a vessel under the influence. Whether or not there was a proper watch or that fact that the powerboat broke half a dozen navigation laws don't have any bearing on Dinius's case. The only thing that is in contention is if his blood alcohol over the legal limit. Not one rule about a navigation light or stand on vessel or what every rule you want to quote has any bearing on his blood alcohol level. The charge is being over the legal limit. As a mater of fact it could hurt the defense case to start bring up the navigation rules because some could be turned around to become a problem of him. The one post about the breathalyzer not having been tested in a long time would be a good defense position because the police have a burden of proof and faulty or uncalibrated equipment could be enough to sway a jury to a not guilty verdict. The chain of custody of evidence could also be a good defense strategy. The judge was correct to not have allowed the navigation rules as it would have not be relevant to the charge of BUI.


"How would the alcohol have been a factor in the equation? I'm not arguing the technical issue of whether or not it is legal, just want to know 'how' under those circumstances is could be a factor?"

The alcohol is a factor because the operator has a diminished capacity of awareness and response times.
Have we all not seen the news reporters who also do a public courtesy to demonstrate the effects of alcohol and response times around the new years holiday time. ?
I don't know if the sailboat operator had been sober the outcome would have been any different, I could even agree most likely not. HOWEVER The poll here on SBO asked who was responsible for the accident and an overwhelming number put ALL the blame on the powerboat. I feel both parties are responsible because both the owner and operator had a legal and moral obligation not to operate the vessel. The boat should have never left he dock. Owner and operator both made poor decision and share blame for this incident. I do agree the power boat has overwhelming responsibilities here but the fact that the owner and operator of the sailboat chose to break the law, showing no respect for the law or any one else was their choice. Let me try this...If a guy driving home from a bar over the legal blood alcohol content has a tire blow out on his car causing him to have an accident and hurt someone is it the tires fault ?? The fact that he was drunk did not cause the tire to blow out and many other people have had a tire blow out and were able to control their vehicle to a safe stop. So maybe the alcohol had some influence on the drivers capacity to notice the tire was low or that the car was steering different. His alcohol level slowed his response times and instead of being a near miss he has an accident hurting some innocent person. So.... didn't the driver have a responsibility to not be driving given his blood alcohol level ???? I think so. Did the alcohol have any bearing on his awareness and reaction times . I think so. No one has the right to drive or operate a vessel DUI or BUI. Any one who does need to accept responsibility for themselves. Dinius should not have been operating the boat with diminished capacity from alcohol . Maybe a "sitting duck" as some have stated but had he been more alert and aware of his surrounding and able to react faster maybe just blowing a horn might have been enough to made Purdock aware of the dangerous situation, maybe shinig a flash light would have gotten Purdocks attention. Maybe it could have been avoided but we will never know and the question of alcohol influence will always be there.

 

[Douglast]

some info from an ongoing article with similar arguement...Stallworth served 24 days,,

"I recognize that there is a difference between the legal standard in my criminal case and the standard to which NFL players are held," Stallworth said. "It is clear that I exercised poor judgment and caused irreparable harm to Mario Reyes, his family, the NFL, its owners, coaches, employees and to my fellow players."
Stallworth thanked Goodell for the opportunity to express his remorse and said he will accept whatever punishment Goodell hands down.
"Whatever he ultimately decides is the appropriate discipline, I will accept knowing that I have profoundly affected the NFL and its relationship with the fans of our game," Stallworth said. "I jeopardized the honor and privilege that I have been given to be an NFL player and to play for our fans. I am truly sorry."
The league has given no indication when Goodell will rule on Stallworth, who struck and killed Reyes on March 14, just a few hours after drinking at a Miami Beach club.
Stallworth had a blood-alcohol level of .126, above Florida's .08 legal limit.
At his meeting with Goodell, the commissioner was shown a tape of the accident recorded by a camera on a Florida Power & Light utility pole. The tape, which was described but not shown in court, supports Stallworth's statements that the victim darted into traffic and was not in a crosswalk when he was struck.
The presiding judge in the case issued an order allowing Stallworth's attorneys to take the tape - which has not been made public - from the Miami-Dade state attorney's office to New York for the Goodell meeting, said state attorney's spokeswoman Terry Chavez. The tape has been returned to the office.


Prosecutors have previously said that one factor in reaching a plea deal with Stallworth was that the tape could raise some doubts for a jury about how much Reyes was at fault in the crash, despite Stallworth's blood-alcohol level.

 

[John Nantz]

Alcohol probably not significant factor here

With the speedboat running at 40 to 50 mph, and having just come around "a point", it is doubtful that anyone on the sailboat could have done anything to make their presence known better in such a short amount of time. It would take time to get a flashlight to shine on the sails.

An air horn wouldn't do any good because the sound of the engine(s) on the speedboat would drown out any more distant air horn noise.

Any flares would most likely have been below deck too.

Frankly, I can't think of anything the sailboaters could have done to protect themselves in this particular situation given the short amount of time available.

 

[Texas Lake Sailor]

BAC Tests

Having followed the trial daily, the BAC tests given to both Weber & Dinius were actual blood draws at the Hospital. The breathalizers calibration used for the field tests were in question, not the tests done at the hospital.

 

[petersea]

OK I'm going to take another try at this. The owner and operator should have never left the dock that night based on they had both been drinking. That is where they become "responsible" for their actions. At no time is it OK to operate a vessel under the influence of alcohol. The fact that you may not have caused the accident or in any way been at fault does not relieve you of the responsibility to never have gotten behind the wheel (or tiller in this case) with a illegal high amount of alcohol in you body.

To all you who say the sailboat operator has not responsibility here I disagree. Besides the issue of if there was proper watch or not as required by law. The accident was 300 to 500 yards off the lake shore. People on shore saw the powerboats lights but apparently no one on the sailboat every saw them until it was on top of them. At 45 mph the powerboat is going 66 feet per second and there would have been 13 seconds notice from a 300 yard distance at 500 yards there was app. 22 seconds notice. I still contend that given the diminished capacity of everyone on board the sailboat awareness times and response times were significantly diminished. Diminished enough to say that had they been sober they might have noticed the power boat lights in time to avoid the collision. Some seam to think the boat was hit in the stern but all the photos I saw show impact on the starboard aft quarter. Not a direct "over the stern " hit as some have suggested. As a matter of fact initial impact appears to be app five feet from the transom on an angle. Had the sailboat had a proper watch ( first violation of the navigation rules ) They might have been able to do something to avoid the accident. Since there was not defensive action whether it be evasive maneuver or a horn or light there was nothing done by the sailboat to avoid this accident (second violation of the navigation rules) If the people on shore could see the light I contend the people in the sailboat could have seen them giving them 12 to 22 second to react. Lets get real here and not to beat up on the people in the sailboat but this was a bunch of people who were by all accounts were drinking heavily. Can it be considered reasonable for a operator and or crew who supposed to be on watch to do so while under the influence of alcohol ? ? I think not. Can it be legal ? ? I think not. Why is it most people are willing to give no responsibility to the crew of the sailboat ?? Wait I got it !! The people who saw the powerboats lights were SOBER. !! !! !! OMG...does diminished capacity not mean anything to anyone ??? By failing to put any responsibility on the sailboat owner and operator (as over 93% of the people who responded to the poll here on SBO did) it condones BUI. So I'm left to conclude it is OK to operate a vehicle or vessel while under the influence of alcohol even though the alcohol diminished my capacity to be aware of thing and slows my response times. And if I were to be involved in some sort of accident as long as I did not cause it the alcohol is in no way responsible.
I give the overwhelming share of responsibility to the powerboat and in no way condone his actions. I will predict that Dinius will be found guilty of BUI. I would also predicted that in a civil court he and the owner both would share in a percentage of responsibility. I don't know how else to say it but NO ONE has the right to operate a vehicle or vessel while impaired by alcohol.