Oklahoma Criminal Defense Blog

Another law enforcement has been charged with the commission of rape while on duty.  Patrick Venable, an Oklahoma Highway Patrol trooper until he was forced to resign for this offense, is charged with Rape Second Degree.  The Logan County District Attorney claims this crime took place while Venable was on duty.

The fact that Venable is neither incidental to the crime or an aggravating factor.  It is essential to the crime.  Why?  Because the sex was apparently or possibly consensual.  Why, then, if the sex was indeed consensual, could this be rape?   Because the young woman in question was allegedly in Venable’s custody at the time.  Venable’s attorney flatly denied at the time of Venable’s arraignment that the young woman was under arrest or in custody.

The Oklahoma statute which defines rape, Title 21, Section 1111, provides in relevant part that a rape occurs when:

7.    Where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim; or….

The facts alleged by the District Attorney, same as the Highway Patrol at the time of pressuring Venables to resign, include the facts that when Venables was on duty on the Broadway Extension in Oklahoma City, he stopped a woman for driving under the influence of alcohol.  After putting the woman in his patrol car and talking for a while, Venables allegedly turned off the video recorder that records the events for the later use of the prosecution at trial.  Venables then allegedly drove the woman to her home, took her inside and had sex with her at her home located in Logan County.  Apparently, the woman was very much under the influence of alcohol because, although she admits “sexual contact in the patrol car,” she had no recollection of what happened at her home.  Venables faces up to 15 years in prison if he is convicted.

Venables claimed the sex he had with the woman in her home was “100% consensual.”  That would be irrelevant, of course, if the woman was “under arrest or in custody” because the rape definition statute subsection quoted makes no reference to consent.

Driving a car or other vehicle on the streets while under the influence of alcohol or any intoxicating drug has been unlawful for decades.  It began as “drunk driving,” developed into “driving under the influence” and now includes even “driving while impaired.”  But all of those levels of intoxication required the driver to be in operation of a motorized vehicle on the public roadways.  Now, for the last 15 years in Oklahoma, it has been unlawful to operate a boat while under the influence.

The number of boat wrecks where the operator was intoxicated or suspected to be intoxicated a (often a significant difference) does not approach the number involving cars.   Nevertheless, the number of injuries from alcohol-influenced boat operators has increased.   The Oklahoma Department of Public Safety claims there have been more than 100 accidents in the last 8 years that were “alcohol or drug related.”  That “related” term includes some unprovable cases, as it always does with law enforcement, where the connection is “suspected.”  But proof in the courtroom is not required in show public safety officials there is a problem.

Title 63, Oklahoma Statutes, Section 4210.8 (Supp: 2011) prohibits operation of a boat or other vessel on the waters in Oklahoma, except privately-owned waters.   The criterion for being “under the influence of alcohol” is the presence of .08% alcohol concentration by grams of alcohol per 210 milliliters of the person’s blood.   That standard for boaters was 10.0 % until just changed by the legislature, following the path of the alcohol percentage standard applied to drivers of cars.   This change to .08% from 10.0% for boat drivers changed just last year after about 10 years at the .10% level.

After much publicized repeated failures at probation, Lindsay Lohan is finally seeing the inside of a jail cell.  Some welcomed the judge finally dropping the hammer as long overdue.  They believed she had gotten away with too much too long.  It gnawed at a lot of people to think they would never receive so many chances, that her celebrity status gave her special privileges.    They tired of watching her on television partying late and then missing her court date the next day.

Los Angeles Superior Court Judge Marsha Revel sentenced Lohan to 3 months in jail.  She is expected to serve about one-quarter of that sentence, about two weeks.  The discount in time is credited to jail overcrowding.  After reporting to the jail in Beverly Hills, she was taken to the Century Regional Detention Facility a women’s facility in Lynwood, where she will serve her sentence in an isolation unit that previously hosted Paris Hilton in 2007.   She will be separated from the general population for the same reason, the sheriff claims: her own safety.  She was sentenced to 3 additional months rehab on probation after she finishes her time behind bars.

In sentencing Lohan, the judge found Lohan had repeatedly lied to authorities and to the court, failed to attend weekly alcohol education classes required by the terms of probation on her driving under the influence charge.  Shawn Chapman Holley was her lawyer at the sentencing, somewhat grim as the television cameras watched.  After the sentence, Robert Shapiro, famed for being a member of the O.J. Simpson dream team, announced he was representing Ms. Lohan, only to be replaced again by Ms. Holley again after a week.  Ms. Lohan had stayed the weekend before she was sentenced at Pickford Lofts, a sober-living rehabilitation center founded by Mr. Shapiro after his son died of a drug overdose.

After listening to a tearful Lohan promise to do better this time and alibi for her repeated failures, the judge recited item for item the broken promises, missed appointments, and lies.  The judge noted Lohan had lied about being driving at her first arrest in 2007 and again in her second arrest two months later, both arrests for driving under the influence, and again lied about to whom the pants belonged in which a white substance was found, yet tested positive for cocaine in her system.

The judge declined Lohan’s lawyer’s request for more out-of-custody ankle monitoring.  Ms. Lohan told the judge  she respected the court process.  While addressing the judge, observers could see an expletive written on the fingernail of Lohan’s middle finger, but no one knows whether the judge ever saw it.  Lohan claimed she believed she was in compliance with the requirements of the program, yet she missed 9 classes.  The judge’s 90-day sentence was harsher than the penalty sought by the prosecution.

The judge initiated the revocation of Lohan’s probation by issuing an arrest warrant because the alarm activated from the monitoring ankle bracelet on Lohan’s ankle, the SCRAM (Secure Continuous Remote Alcohol Monitor).  The ankle bracelet announces the person’s consumption of alcohol or tempering with the bracelet.  However, the judge made clear her sentence was based on missed meetings, not the SCRAM violation.

Most people suspect Ms. Lohan will be going to a country club type of facility to serve her sentence, but that is not how former inmates describe it.  They say it is not a nice place.

Cause and effect are often too casually connected as connections claimed between them are less then sure in nature.  Given this cautionary proviso, the enactment of one recent law does seem to have achieved its intended success.   Graduated driver’s licenses appear to have lowered fatal accidents in Oklahoma.

Oklahoma enacted the law in 1999, and since that time fatality crashes involving 16 and 17-year-old drivers has dropped from 75 in the year 2000 to 39 in the year 2008.  Accidents generally were also down in that period.  The accidents in question involved a 16 or 17-year-old as at least one of drivers in the accident.

Preliminary data for the year 2009 indicate the number of such accidents was 38, which would be an even greater drop.
The total number of crashes (not just fatal crashes) involving 16- and 17-year-olds dropped from 11,837 in the year 2000 to 7,597 in the year 2008.  The latest highway report shows that from the year 2000 to the year 2008, 16- and 17-year-olds made up 3 percent of the licensed drivers in the state of Oklahoma, but drivers from that age group were involved in 7.1 percent of the accidents and in 4.7 percent of the fatal crashes.

The graduated driver’s license allows 16-year-olds who have had a learner’s permit for six months to obtain an intermediate driver’s license, provided they have logged at least 40 hours behind the wheel, have no traffic convictions, and have passed the driving skills examination of the driver’s test.

The intermediate license allows the 16-year-old to drive except during the hours between 11:00 p.m. and 5:00 o’clock a.m. or at any time when accompanied by a licensed driver who is at least 21 years old.

Things other than age contribute to accidents and need to be addressed.  As criminal defense lawyers know, these issues include avoiding distractions, obeying the speed limits, and wearing seat belts.

Noteworthy from the nine-year study in the years 2000 to 2008 is the statistic that of the 169 teen drivers killed, 58.6 percent were not wearing seat belts.   In those last two years of the study, 2007 and 2008, more than 2 percent of total crashes involved drinking and driving.  In that same two-year period, the primary contributing factor from more than half the crashes was driving at what the reporters determined to be an “unsafe speed, ” with “failure to yield” and “inattention” also significant contributing factors.