DJ Says...

There is an interesting and disturbing criminal case in Galveston County. On August 11, 2006, Daniel Gonzales, age 16, was struck by a pickup truck as he rode his bicycle home from his very first job. The pickup truck was being driven by Ronald Kenney, who was subsequently arrested and charged with intoxication manslaughter. On March 9th, in a trial that was delayed because of Hurricane Ike, a jury acquitted Mr. Keeney despite a blood alcohol concentration (BAC) of 0.31%, about 4 times the legal concentration of 0.08%.

The jury in the case decided not to consider the results of the blood test because of a "sloppy" investigation, which the Galveston Police Dept. admits, and a delay in the time that it took, between 2 and 3 hours, to obtain a blood sample. Another factor that the jury had to consider was the victim's cerebral palsy and what, if any, role that condition played in the wreck.

What society is left to ponder is the wisdom of a judicial system that lets a 67 year old man back on the streets after killing someone while driving with a BAC of .31%.

In the latest episode of this case, the defense has filed a motion to expunge the charge from Mr. Kenney's record.

Prosecutors are opposing the expunction of a Santa Fe man’s intoxication manslaughter charge, following his March 9 acquittal, and are probing whether additional charges could be filed, the man’s attorney said.

Not being an attorney, I wasn't aware of the law regarding expunctions, so I looked it up. TITLE 1. CODE OF CRIMINAL PROCEDURE CHAPTER 55. EXPUNCTION OF CRIMINAL RECORDS is the relevant law and it is very clear, with one exception. First the clear part:

Art. 55.01. RIGHT TO EXPUNCTION. (a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or

If a person is acquitted, the person is entitled to have all records expunged. Enter Subsection (c):

(c) A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.

So it appears that the prosecution is searching for something, anything to charge him with in this case in order to keep the intoxicated manslaughter charge on his record, which could be critical if he does something like this again. I can see why a prosecutor would want to do that.

But still, the man was acquitted. And regardless of how it plays to us in the public, should a prosecutor take this approach after a man has been found Not Guilty by a jury of 12 peers? On the surface, it would seem to be Double Jeopardy. Again, I had to look up the Texas law on this one and it is in the Constitution: The Texas Constitution Article 1 - BILL OF RIGHTS Section 14 - DOUBLE JEOPARDY.

No person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction.

Obviously, the prosecutor is searching for a way around this. My question is, will he be able to make a legitimate claim that whatever he decides to charge Mr. Keeney with is separate and apart from the original charge? And if he is able to, would his actions meet the spirit of this law?

As I said, it is an interesting and disturbing case to me.

Background links:

Driver’s blood alcohol nearly 4 times legal limit

Driver not guilty in bicyclist’s death

Galveston police reviewing 2006 intoxication manslaughter case