25 Comments

I have to say that your short description of the case and the article on it was misleading.

The police found a man passed out drunk in the driver’s seat of his car. The man had multiple DUI’s in his past, according to the article, a fact the police surely learned quickly. They asked him if the vehicle was operable, AND THE DEFENDANT SAID IT WAS. They asked him if he had been driving and he claimed he hadn’t been, and the car wasn’t warm to the touch (for me, my car is typically cooled within about an hour, but that just might be my car). So then they asked him why he was in the car, and he told contradictory stories. So its not like the man decided he felt like sleeping in his car; he passed out there, somehow. Now if you are a cop on that scene, knowing all that, what are you supposed to make of that? Well, neither one of us were there, but it seems very reasonable of the cops to conclude that he had been drunk driving.

Further the jury instructions endorsed by the court specifically ask the court to weight on the operability of the car. Presumably if the car was inoperable at the time of the arrest the defendant could have presented evidence of that to counteract the evidence from his own mouth. But the only evidence offered was that after the car was impounded, the car wouldn’t start. Which doesn’t tell us much about how it operated on the day of, and I would add that maybe people have crappy old cars that don’t work right unless you know exactly what to do with them.

Seen in that light, I think there is no reason to say that the jury was wrong. I think Minnesotans are safer for him being in jail.

Overcriminalization: four years in prison for “driving” an immobile object.

Well, neither one of us were there, but it seems very reasonable of the cops to conclude that he had been drunk driving.

Except for the fact that he wasn’t driving and nobody claimed that he had been driving.

2nd link: These defendants have been charged under an expanded definition that suggests having “dominion and control” with the mere potential to drive is a crime.

Punishment for potential crimes! That sounds like a great idea if you’re some stupid judge.

My issue would be that this guy has 3 DUI’s and somehow he still has a license and access to a car? I agree nailing him on a potential crime is riddiculous. As for the non operating car, I would discount that evidence because we don’t know why the car didn’t start. It could just be a dead battery which may have started fine on the day of the arrest, but 18 days in an impound lot could have easily killed it. A lot of missing information.

“These defendants have been charged under an expanded definition that suggests having “dominion and control” with the mere potential to drive is a crime.”

I have the potential to drive when my car is in my driveway and I walk over to the bar across the street. If I am caught walking back to my house, should I be arrested for DUI, just because my house key is on the same ring as my car keys?

Le Mur

> Except for the fact that he wasn’t driving and nobody claimed that he had been driving.

Yeah, people just randomly pass out in the driver’s side of the car. *rolls eyes* You know what? Given this guy’s rap sheet, I am not terribly interested in splitting that hair. He has no business being in the driver’s seat when he was that drunk, period.

For instance, lets say the car’s engine was broke. Is the danger eliminated? Um, no. He could still take off the brakes in his drunken state and cause the car to roll downhill.

> Punishment for potential crimes!

Its not punishment for potential crimes. It is punishment for actual conduct designed to avoid a danger to other people’s life and limb. In that respect, it is no different than punishing a person for speeding or tailgating. No one is immediately harmed by speeding or tailgating in and of itself. But both significantly increase the danger of an accident as a result we ban the conduct that increases the risk. This is no different. Allowing drunk people to get behind the wheel at all, increases the risk of accidents, period.

Its sort of like the statutory rape laws. We all know that there are a lot of situations under that law when people are technically breaking the law, but few people think that the conduct should be prosecuted. I mean a 17 year old girl sleeping with an 18 year old guy might be technically rape in most states, but I don’t think most of us get worked up about it unless there is some kind of lack of consent or abuse. But we feel that there is enough concern that we ban it on a blanket basis and then prosecutors are expected to exercise discretion. So when 18-year-old Jack, sleeps with 17-year-old Diane, prosecutors look the other way; but when 46-year-old Stanly sleeps with 13-year-old Kate, he goes to jail without having to prove lack of consent, etc.

Creating a situation where a person can only be charged with drunk driving if and only if the car is currently running, etc. would say that all those times that George Michael was caught asleep at a stoplight behind the wheel he was not driving impaired (at least if Mr. Michael was smart enough to lie about driving). Yeah, the police didn’t see the Defendant in this case drive, but who are we kidding? Let’s have a little common sense in this discussion. The man didn’t just innocently decide that his driver’s seat was a great place for a nap. He passed out in his car from being too drunk. And you want us all to believe that he either wasn’t about to drive, or had just finished driving when he passed out behind the wheel. But you and I know the chances that he got there innocently are about slim and none.

Justice was done. If anything, I can’t believe he isn’t going to prison longer.

Jim

that is not what they ruled and you know it.

If the motor is running, then I could see a DUI in these circumstances. Perhaps, given the driver’s record, even had the motor been turned off, but the keys were in the ignition, then there might be probable cause and a jury could conclude that the driver had clearly intended to be driving.

When I take long trips by car, I’ll pull into a rest stop for a quick nap, if a rest stop is available. If one is not available, then I’ll find what I consider a safe place to pull off the road. Sleeping in my car might break some laws (trespass, no-stopping, etc.), but it surely shouldn’t get me busted on a suspected DUI.

I think the law above is over-broad.

A.W. I think you are justifying the prosecutions given the facts of each case. Unfortunately, these types of laws carrying mandatory enforcement and sentences. Assume this story had a few different facts. First time offender, car definitely did not run, was sleeping in it because wife kicked him out of the house. That person could, and likely would, be prosecuted the same any many jurisdictions. There are so mandatory sentencing laws that prosecutor discretion is being removed. I guess you would be OK for arresting the dude for just being drunk at home and having a car in the garage.

Your statutory rape analogy makes this case. The sex offender registry lists are full of people who committed “crimes” that you indicate most people wouldn’t get worked up about. That’s because the overused “protect the children” as made for strict enforcement and mandatory sentencing.

AW,

So then they asked him why he was in the car, and he told contradictory stories.

No, he didn’t.

He said that he came out to get something from the vehicle and later said he came out to sit in the car. One can come out to sit in a car and retrieve an item.

The statements are not contradictory.

They asked him if the vehicle was operable, AND THE DEFENDANT SAID IT WAS.

Only one policeman reported hearing this statement and even if made, the statement is contradicted by the actual evidence that the car was not operable.

Beagles

> I think you are justifying the prosecutions given the facts of each case.

Well, that is because to a real extent that is exactly how the courts look at it. Mind you, of course they don’t formally wonder if the guy had been driving. If they can’t prove it, they can’t consider it. But I mean here are the jury instructions the (Minn) supreme court has endorsed:

> In considering whether or not the defendant was in physical control of the motor vehicle while under the influence of alcohol, you may consider the defendant’s location in or by the vehicle, the location of the ignition keys, whether the defendant had been a passenger in the vehicle before it came to rest, who owned the vehicle, the extent to which the vehicle was inoperable, and whether the vehicle if inoperable might have been rendered operable so as to be a danger to persons or property. You may consider these as well as any other facts or circumstances bearing on whether or not the defendant was then in physical control of a motor vehicle which was or reasonably could become a danger to persons or property while the defendant was under the influence of alcohol.

So in your hypothetical, the guy would probably be okay, if only because the car was established as inoperable.

> Unfortunately, these types of laws carrying mandatory enforcement and sentences.

Actually, there is always police discretion and prosecutorial discretion. I read this case and I think that if we could have watched the scene like on “Cops,” we would see a drunk out of his gord man in the blurred images, and the cops going, “yeah, he says he didn’t drive, but obviously he did. fortunately in Minnesota, we only have to prove he is in control of the vehicle.” I have a feeling if we were there, we would see that he was guilty as sin.

> The sex offender registry lists are full of people who committed “crimes” that you indicate most people wouldn’t get worked up about.

Actually I go the opposite way. people are too quick to assume that what is alleged in the indictment is the whole story. So people moan that this guy was convicted of statutory rape when he was 18 and the girl was 17. The problem is if you ask the girl she will usually say she was forcibly raped, but for one reason or another chose not to charge him with that. Or the guy will have secretly videotaped it and put it on the web, or something like that. it is exceedingly rare for a prosecutor to go after an 18 year old JUST for having sex with his 17 year old girlfriend; that may be the charge, but it is not the reason.

Gitar

> No, he didn’t.

The court thought otherwise, and they have read the transcript and you haven’t. And seriously do you often just sit in your car, or pass out while retrieving an item? I suppose it is not impossible, but it is really, really unlikely.

> Only one policeman reported hearing this statement

Well, you may assume every cop is lying, but the jury is quite reasonable in concluding he was not. Indeed, there is nothing in the facts we know to suggest the cop might have been lying.

> the statement is contradicted by the actual evidence that the car was not operable.

Several weeks after the fact. And really, if you aren’t careful it is very easy to set up a car to be disabled after a few weeks. For instance, if you leave a cell phone in there charging, give it a few weeks of your car being parked and it could very well drain the battery.

I mean seriously, why exactly do you think this guy would be unsure of the status of his car? And why didn’t the guy present any evidence beyond that after the fact claim that it wouldn’t start. Surely his lawyer would have known to do that. It’s in the jury instructions—you may consider whether the car is operable.

And even if the car wouldn’t start, doesn’t that make him like the guy who pulls the trigger on the gun believing the gun is loaded and intending to kill his target, only to be surprised it is empty?

Bottom line, I appreciate your belief that a person is innocent until proven guilty, but the fact is that 12 of his peers decided he was guilty. I don’t understand why you are so convinced that this idiot should still be free to drive. A better argument is to be concerned that the law would be applied to another person less deserving. But this guy seems to be a poster boy for enforcing this law.

The court thought otherwise, and they have read the transcript and you haven’t

I find nothing in the opinion that says that the court found the statements to be contradictory. They simply note what was said.

Well, you may assume every cop is lying,

Challenging one policeman’s statement that is contradictory to physical evidence is not assuming “every cop is lying.

And really, if you aren’t careful it is very easy to set up a car to be disabled after a few weeks.

The car that was in the possession of the police? That car?

I mean seriously, why exactly do you think this guy would be unsure of the status of his car?

I’m sorry. I thought it was up to the government to prove the car was operable as that is an element of the charge.

I don’t understand why you are so convinced that this idiot should still be free to drive.

And my post says the guy should be driving where?

But this guy seems to be a poster boy for enforcing this law.

No, this guy is a poster boy for a law that has no substance in reality or logic. That is why the site is called “Overlawyered.”

[…] here to read the Original post: Four years for sleeping drunk in parked car Tags: been-operated, car-hadn, crime-as-attempting, dui, minnesota, overlawyered, strictly-worded, […]

Gitar

> I find nothing in the opinion that says that the court found the statements to be contradictory.

Here are their words: “When asked why he was in the vehicle, Fleck initially told the officers that he had come to retrieve an item from the vehicle, but later told the officers that he had come outside to sit in the vehicle.” Notice the word, “but.” Do I need to explain to you its significance?

> Challenging one policeman’s statement that is contradictory to physical evidence is not assuming “every cop is lying.”

Yeah, I always think it is cute when after the fact people play junior lawyer. Obviously all of your arguments were considered by a jury AND REJECTED. They realized the simple fact that a test weeks after the fact is not proof that it was inoperable that day. They realized that the cop had no good reason to make s—t up about this guy, and that his comment about the condition of his own vehicle was probably the best evidence possible on the subject. He would know, and he had no incentive to lie to make people think his car worked when it didn’t.

> That car?

Yes, are you having trouble following along?

> I thought it was up to the government to prove the car was operable as that is an element of the charge.

Operability is not an element of the charge. Control is. Operability is merely a major factor in that determination. And they did. They had the defendant’s own word on the subject. Can’t get much clearer than that. indeed, I see no evidence in the story that the claim that the defendant said it was even disputed.

> And my post says the guy should be driving where?

You obviously want him acquitted. What do you think will happen if he is?

> No, this guy is a poster boy for a law that has no substance in reality or logic.

No logic? He was passed out drunk behind the steering wheel of a car, with several prior DUI’s. On what planet is it illogical to think he had either 1) been drunk driving or 2) attempted to do it and passed out?

Come on, forget the formalities for a moment. Do you really think he ended up like that innocently?

But I get it. you feel like whatever I say, you have to disagree with. That’s why you can’t even admit that this guy should be off the road.

This man should not have a license, and should not be a free man. I am not the slightest bit disturbed by this application of the law.

Do I need to explain to you its significance?

Nope. The court never uses the word “contradiction” and the two statements are, in fact, not contradictory.

Yeah, I always think it is cute when after the fact people play junior lawyer.

I think it is less cute when someone tries to attribute a statement or belief to another without foundation.

They realized the simple fact that a test weeks after the fact is not proof that it was inoperable that day.

Excuse me, but once again, the proof must be that the car was operable the day in question. It is up to the prosecution to prove that the car somehow became inoperable while in their possession.

He would know, and he had no incentive to lie to make people think his car worked when it didn’t.

You are assuming that the cop’s question was understood by the person. You are also assuming that the guy made the statement. The fact of the matter is that the car, in the possession of the state, did not work. It is up to them to show how it became that way.

Operability is merely a major factor in that determination.

Okay. So one of the elements of “control” cannot be proven.

You obviously want him acquitted. What do you think will happen if he is?

Please answer the question of where in my post did I ever say that I wanted the guy driving?

On what planet is it illogical to think he had either 1) been drunk driving or 2) attempted to do it and passed out?

This planet.

Do you really think he ended up like that innocently?

I don’t know. That is the point. It is easy to see where the jury was caught up in what could have happened or what may have happened just as you are. Instead of focusing on what did happen, and what was provable, they went with “gee, this could be right.”

This man should not have a license, and should not be a free man. I am not the slightest bit disturbed by this application of the law.

I understand you feel that way. I am more disturbed that there are people willing to say that a person is guilty based on what might have happened rather than proving what did happen.

There for the grace of God go I…… and you.

Gitar

> [me] Do I need to explain to you [the word “but”’s] significance?

> [you] Nope. The court never uses the word “contradiction” and the two statements are, in fact, not contradictory.

Ah, I guess, I do need to explain this. Take it away, Mr. Webster: http://www.merriam-webster.com/dictionary/but

Look at definition 2 a: “on the contrary : on the other hand”

Thus in that context, “but” indicates a contradiction.

> the proof must be that the car was operable the day in question.

Shorter gitar: “How dare you believe the defendant’s own words!”

> You are assuming that the cop’s question was understood by the person. You are also assuming that the guy made the statement.

No, I am stating that the jury found this to be the case.

> Okay. So one of the elements of “control” cannot be proven.

Don’t use words that you don’t understand. And clearly “element” in the context of the elements of an offense, is one of them.

And it was proven. The jury was asked to rule on the issue and it made its determination. Have some f—ing respect for your fellow citizens. They worked hard for not very much money–indeed often losing money because they are away from higher-paying jobs–and they strove to be fair. The jury felt, having an intimacy with the evidence that you and I lack, that it had proof beyond a reasonable doubt that the man had control of the car. Most likely they believed it was operable, because its owner said so.

It may be fun and cool in certain circles to pretend a person standing far away from the courtroom, never having looked a single witness in the eye, and only having partial access to the facts, can judge a case better than a jury, but it is the height of arrogance and snobbery in my book. The issue in this case was the sufficiency of the evidence, and there was more than enough here.

> Please answer the question of where in my post did I ever say that I wanted the guy driving?

Well, do think he should have been acquitted or not? And if you do, what precisely do you think happens when a person is acquitted?

> This planet.

Lol, so you think he just coincidentally happened to be there. How so? What is the scenario? He wasn’t sure if he wanted to sit on his deck chair or his driver side of the car? And took out his keys for good measure, instead of leaving them in his pocket? I mean you keep asserting it was reasonable to doubt he was there innocently, so what is your reasonable scenario?

> I don’t know.

What is the most likely thing?

> Instead of focusing on what did happen, and what was provable, they went with “gee, this could be right.”

First, how do you know this? Were you sitting in that courtroom? Its amazing how judgmental you can be on a subject that truthfully you know little about. See what I mean about the arrogance?

Second, what did happen was he was sitting in the driver’s seat of a car, drunk out of his gord, with the keys nearby. And crazy them they convicted him of DUI, which can be based on mere control of the vehicle, without actually driving it.

> I am more disturbed that there are people willing to say that a person is guilty based on what might have happened rather than proving what did happen.

Lol, so you have never heard of attempted murder? Attempted robbery? We punish people for intentions and “might have” all the time. Try this. Try speeding. Like 45 mph over the limit, right past a cop car. And moon him as you go past for good measure. In fact, try to drive using your butt cheeks. Then when he pulls you over, explain to him that no one actually was hurt and it would be inappropriate to punish you for what might have happened. See how far that gets you.

> There for the grace of God go I…… and you.

Right. Because I am in the habit of getting drunk and sleeping in cars for no reason at all. Could happen to anyone! /sarcasm

[…] Read it. The car hadn’t been operated and it wasn’t clear that it was even operable, but Minnesota, like so many states, has a strictly worded DUI law. “Intending to sleep off a night of drinking [is] treated as the same crime as attempting to drive home under [the state's] legal theory which does not take motive into account.” […]

Ah, I guess, I do need to explain this. Take it away, Mr. Webster:

Please read your own definition and you will see that “contrary” is not the only meaning of “but.” Even if it were, the two statements are not contradictory.

Shorter gitar: “How dare you believe the defendant’s own words!”

Which is it that you want to believe? The guy said that he hadn’t driven. You won’t accept that and yet when he allegedly says “the car was operable” (as if people use the word “operable” all the time when having a .18 BAC, you want to hang the guy.

No, I am stating that the jury found this to be the case.
You have no proof of this.

The jury felt, having an intimacy with the evidence that you and I lack, that it had proof beyond a reasonable doubt that the man had control of the car.

And I am supposed to believe this because they, like you, may just want the guy off the street and the heck with proving anything?

Well, do think he should have been acquitted or not? And if you do, what precisely do you think happens when a person is acquitted?

Again, please answer the question of where in my post did I ever say that I wanted the guy driving?

so what is your reasonable scenario?

Guy drinks 10 – 12 beers in his house, goes out to his car to get something, can’t make it back in the house and sits in his non-working, non drivable car.

What is the most likely thing?

“Likely” doesn’t matter.

First, how do you know this?

Because the car didn’t run. There is no way around that fact. They, like you, could have wanted the guy off the streets and convicted him.

Lol, so you have never heard of attempted murder?

Attempted driving?

Right. Because I am in the habit of getting drunk and sleeping in cars for no reason at all. Could happen to anyone! /sarcasm

The first rule of sarcasm is to avoid any facts that might show that you are in error.

Good job.

We are done.

You see this as some sort of victory for justice. I see it as a case that simply doesn’t make any sense whatsoever.

We are simply going to have to agree to disagree.

Gitar

> Even if it were, the two statements are not contradictory.

Really? Have you read the entire statement in context? Have you read the transcript? They can indeed be in contradiction and the justices judged it to be as such. Since they read the transcript and we haven’t I am going to defer to them, rather than your biased assumptions.

> Which is it that you want to believe? The guy said that he hadn’t driven.

In my experience people don’t lie about things that can be easily checked. The cop could have got in and turned the key himself at any moment. There isn’t much point in lying about that. by comparison, the guy figured that there was a chance they didn’t know he drove. And indeed, the truth might have been he got in the car with the intention to drive and was so drunk he passed out. So he might have technically told the truth in a Bill Clinton sort of way.

> You have no proof of this.

I have a verdict.

> And I am supposed to believe this

Because you should not impugn the jury without powerful evidence, not just snarky half-informed doubt. If only one of the 12 jurors agreed with you, then we would be talking about a mistrial and not a conviction. What does that tell you?

> Again, please answer the question of where in my post

I have. I have asserted that you want him acquitted. Letting him drive again is the inevitable result of that decision. Are you denying any part of that?

> Guy drinks 10 – 12 beers in his house, goes out to his car to get something, can’t make it back in the house and sits in his non-working, non drivable car.

Right. coincidentally runs out of “gas” right there. Mmm-kay. By the way, if that was the case, why didn’t he just say that? The legal standard is not any doubt, its beyond a reasonable doubt. If he had such a simple and reasonable explanation how come he never offered it?

I mean you are so dedicated to this drunk’s innocence, that you are imagining excuses utterly unsupported by any evidence.

> “Likely” doesn’t matter.

Nice dodge. Answer the question. And actually likely does matter. The legal standard is not “any” doubt, but “reasonable” doubt.

> Because the car didn’t run. There is no way around that fact.

How do you know it didn’t run that day? Do you seriously understand so little about cars that you don’t understand that even just sitting there, cars break?

Indeed a moment ago you asked how it was that I believe him about his vehicle being operative, but don’t believe him whether he drove. But let’s turn that around. How is it that you believe him when he says he didn’t drive, but you don’t believe him when he says his car was in working condition? I have an explanation for why you should credit one statement more than the other, but what is your version?

> Attempted driving?

Just pointed out that we do punish people for possibilities rather than just acts.

> You see this as some sort of victory for justice. I see it as a case that simply doesn’t make any sense whatsoever.

Because you want him on the road, apparently and consider it a travesty that he won’t be.

I mean, my God, in many states its illeagal to be drunk in public, as Ron White hilariously points out in his “Tater Salad” story. The worst you can say about this decision is it makes it illegal to get into a driver’s seat when drunk. is that such a bad thing? and the only reason why this jag off faced four years in prison is because he had been busted for DUI many, many times before.

AW wrote:

“And even if the car wouldn’t start, doesn’t that make him like the guy who pulls the trigger on the gun believing the gun is loaded and intending to kill his target, only to be surprised it is empty?”

Based on this logic Fleck should/could have been charged with Attempted DUI, which I believe most arguing that this was a judicial overreach here might agree with, rather than as has happened Fleck has been charged with murder and he didn’t even get the gun out of the holster.

A.W.
That’s what they ruled this time. Several years ago I was in a bar and was witness to this. A man asked the owner of a bar if he could park his mobile home in their lot overnight. The owner said he had no problem with it if the guy moved it to the back corner of the lot. The man went out and moved his Winnebago to the back corner and then returned to the bar, where he proceeded to have several drinks. At closing time the man got into the back of the Winnebago. The rest of this I heard from the lawyer who defended him. At about 4 AM the man was woke up by the pounding on the door of the Winnebago. It was a local cop, who then proceeded to arrest him for DUI. The man was asleep in the BUNK. Their reasoning was that since he had the keys, he could have driven. The charges were eventually dropped, after the man had the expense of hiring a lawyer.

A few years ago the State of Pennsylvania had a proposed law that would allow a person to be arrested up to three hours after they were driving for DUI. The law was rejected, when it was pointed out that someone could have been totally sober while driving, parked their car and then become intoxicated. Under this law I could have been sober when I parked my car in my driveway after work. I could have then crossed the street to the bar where I play in a dart league, had several drinks, gone home and still been arrested for DUI if an officer had seen me parking my car three hours ago.

With the way our rights are being trampled on in the name of DUI, I really don’t care how the Courts rule in a certain case. I am more concerned about the ways that they could rule.

Several of you have commented on the past record of the guy in Minnesota, I really don’t care what his past record was. I’m more concerned about this particular incident. I my opinion, if he wasn’t behind the wheel, with the vehicle in operation, it isn’t DUI. The offense is called DRIVING Under the Influence, not Sitting or Sleeping Under the Influence.

Jim, well the statute bans driving or merely being in control of the vehicle. no fair reading of the statutes, therefore, would limit it to be people who are driving.

I mean that is the statutory language. So what do you call “control?”

This thread seems to have become mired in minutiae. To me (and I just happen to be the guy who found the news item and passed it along to our good moderator), all the problems stem from one initial assumption: That it’s okay to punish people because they _might_ do something.

There’s all kinds of stuff that people are statistically more likely to do after having a few drinks–such as punching someone, stealing something, or merely bumping into a bystander and knocking him into the path of an oncoming truck. Yet in all these examples, there is no crime (unless you count the relatively minor “drunk and disorderly”) until the damage actually occurs. Why should sitting in a motor vehicle change everything so radically? Just because of activist groups such as MADD?

Personally I would like to see the repeal of all drunk-driving laws, because I don’t believe in punishing people for things that they haven’t actually done. That’s a slippery slope which leads to absurd and unjust cases such as the one cited. Four years in jail for sitting in a car in a parking lot? Well, what if he had been sitting _beside_ the car, with the keys in his hand, and the door of the car open? What if he had been sitting in his home adjacent to the garage, _thinking about_ getting into the car?

As soon as you assume that people cannot be trusted, there’s no end to it.

Charles

> Yet in all these examples, there is no crime (unless you count the relatively minor “drunk and disorderly”) until the damage actually occurs.

Well, what is the damage done when you speed?

Of course speeding by itself harms no one. But it is banned to protect us from the increased danger associated with this conduct.

> Personally I would like to see the repeal of all drunk-driving laws, because I don’t believe in punishing people for things that they haven’t actually done.

Well, that is certainly a radical position. I suppose it’s consistent at least.

And if I point a gun at you and pull the trigger, but the gun jams, that isn’t a crime either? I am just wondering how far you go with this no harm, no foul principle.

Since I grew up in a country (the UK) at a time when there were no speed limits at all outside of urban areas, and I also remember very clearly driving through a couple of American states which were similarly unencumbered on their interstate highways, and I don’t recall any terrible consequences of this laissez-fair attitude, it will be no surprise to you that I would get rid of all speed limits. We already have offenses such as dangerous or reckless driving, which I think are both necessary and sufficient.

Pointing a gun and attempting to pull the trigger (unsuccessfully) would presumably constitute assault, since it would traumatize the targeted person. There would be an opportunity for civil litigation for damages there, too, on a pain-and-suffering basis.

I think it should certainly be a less serious crime than succeeding in pulling the trigger, and I would guess that you would agree.