DennisBeaverJuly 27, 2008 (Original publish date) • By Dennis Beaver

“During a week’s business trip in Southern California, I was reading the local newspaper. There was an article about a woman — driving drunk — who killed a pedestrian only two months after she pleaded guilty to her first drunk driving charge. Now, with this new DUI, she was charged with second degree murder.

“Yet, a visiting judge at the preliminary hearing dismissed the murder charge, saying, in so many words that the poor driver didn’t have a malevolent heart — she was not malicious and had no ill will towards the victim. To me, two months after you plead guilty to your first DUI, continuing to drink and drive is the very definition of ill will. You know the dangers but just do not care about anyone else.”

“Her blood level was over .12 at the scene, well over the .08 limit. Judge Eugene L. Huseman reduced her $250,000 bail to only $50,000. The public defender told the court that his client was clearly distraught and that her alcohol level was not astronomically high. I understand that a defense attorney must put the best spin on a loser of a case, but the judge apparently bought this lame argument.”

“Why does this case bother me? Last year I lost my wife because of a drunk driver. Reading the article, I was so angry at the judge and the defense attorney, who was minimizing the driver’s alcohol level. Her .12 was substantially over the limit and any driver at that level would be seriously impaired.”

“Mr. Beaver, this was in your town, Bakersfield. I am a long time reader and would like to hear your reaction. What is the law? How could a judge dismiss the murder charge — because in my book, what she did is murder. Thank you. Rudy.

My reaction? Disgust

I read the same article the day it appeared, and spoke with both the deputy district attorney and public defender assigned to the case. They confirmed the article’s accuracy.

As a former deputy district attorney, it was impossible to fathom how any judge could possibly dismiss that murder charge. If any defendant deserves to face second degree murder charges, it’s one who goes right on driving drunk, with not a worry about the risk she presents to others, and to boot, this gal’s license was suspended! Respecting the law was the least of her concerns.

This judge might consider using his gavel to pound some common sense — into himself. If it sounds as if I expect our courts to help protect the public, then you’ve got my point.

I did a bit of research on Judge Huseman and found that his handling of this case earned him Internet recognition, “The International Bonehead Award.” The fact this case attracted so much attention speaks to the outrage it created.

Who is Judge Huseman? For health reasons (what I do not know) he retired eight years ago from Santa Barbara County and travels around the state, filling in where needed, as do many retired judges. California has a severe shortage of judges, and those who work part time provide a needed service. They are able to collect their full retirement pay and receive over 90 percent of a judge’s daily salary per day. So, it’s a good deal for the taxpayer and the retired judge, if that retired judge is competently serving the needs of the public.

I have my doubts about Judge Huseman. In speaking with both prosecution and defense lawyers, he’s considered, to put it nicely, “an odd duck.” “He dismisses good cases, with little or no apparent justification,” I was repeatedly told. One defense attorney — on condition of not revealing his name — told me the following:

“I was the most astonished person in the courtroom, when Judge Huseman bought my arguments. I offered an excuse for my client’s behavior which was close to being a joke — and I knew that what I was saying was no defense at all, but he bought it!”

Fatal DUI can be charged as murder

Let’s take a brief look at the law. First degree murder requires premeditation — a thought out intent to kill. Murder in the second degree only requires malice, which is an intent to kill — or something equivalent — but without premeditation.

Malice can be shown in a number of ways. In an 1981 case (People versus Watson) our State Supreme Court ruled that a DUI driver could be charged with murder, as driving while impaired by alcohol reveals a “conscious disregard for life.”

Today, when a first time DUI driver is sentenced, the following statement must be acknowledged: “I understand that another DUI resulting in death can be charged as murder.” Starting this past January, when applying for a new or renewal license, a statement must be signed which warns: “I understand that if I kill someone under the influence of alcohol or drugs, I can be charged with second degree murder.” This is called the Ambriz Law, named after 36-year-old Steve Ambriz, an Orange County city councilman killed by a woman under the influence of methamphetamine.

Public defenders perform a vital function

I have a great deal of respect for public defenders. They have what is probably the most difficult job in all of criminal law and one of the most essential. Their clients are society’s poor, often mentally disturbed, addicted and frequently of borderline intelligence. In many if not most instances, they are guilty of at least something close to what they are charged with. Yet they have the right to require the case against them to be proven beyond a reasonable doubt, the same rights enjoyed by all who reside in our country.

Final thoughts

When the public defender stated that his client was “distraught,” and that her blood alcohol concentration (BAC) wasn’t “astronomically high,” he was correct, I’m sure of it. I’ll bet she was distraught after her first DUI, two months before when she killed a man crossing the street, and now even more distraught because she is facing murder charges. The poor gal was so distraught after her first DUI that she kept right on boozing it up and driving.

A BAC of .12 could easily mean that the lady drank at least eight beers or had that equivalent in wine or hard spirits within a handful of hours. Anyone at that level is seriously affected, but in fact, .12 isn’t all that high if you compare it to someone who is .13, .14, .15 … up to a fatal .40.

The D.A. will refile murder charges against her and a jury of 12 will hear the evidence. Her lawyer will set out her entire life for the jury panel, attempting to show what a really good person she truly is.

They will not buy it.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.