Man Convicted in Fatal Boating Accident
 

<!-- remove frontpage link extra text -->Union Leader

December 19. 2013 10:49PM
Hooksett man convicted in fatal boating accident

http://www.unionleader.com/images/print.gif <!---->http://www.unionleader.com/images/email.gif http://w.sharethis.com/images/check-small.png http://w.sharethis.com/images/check-small.png ShareThishttp://w.sharethis.com/images/check-small.png

By JAMES A. KIMBLE
Union Leader Correspondent
http://www.unionleader.com/storyimag...q=100&maxw=350
Eric Cable, 35, of Hooksett was convicted of two counts of negligent homicide on Thursday in Rockingham County Superior Court. (JAMES A. KIMBLE/FILE PHOTO)

<HARDRETURN>BRENTWOOD — A jury convicted a Hooksett man of two counts of negligent homicide for causing a passenger to fall out of his boat and die on Northwood Lake last July after a day of drinking with friends.

<HARDRETURN>Eric Cable was ordered held without bail Thursday afternoon after a Rockingham County jury agreed he was intoxicated and negligently piloted his boat July 14, 2012, causing the death of Brendan Yerry, 28, of Hudson.

<HARDRETURN>The announcement of the verdict prompted crying in the court gallery from both Yerry’s and Cable’s families in Rockingham County Superior Court.

Jurors returned with their decision around 4:20 p.m. and deliberated for roughly three hours.

<HARDRETURN>Prosecutors and the defense sparred during the weeklong trial about whether there was enough proof that Cable, 34, was legally intoxicated.

Cable, who took the stand in his own defense, had started drinking on the morning of the incident and continued imbibing throughout the day while ferrying a group of friends to a sandbar on the lake, according to prosecutors.

<HARDRETURN>“What he did was not acceptable, not even close,” Assistant County Attorney Jerome Blanchard. “It was a drunk day on the water.”

Blanchard argued that Cable’s actions were illegal from the outset because he was operating the boat without a license, and had no boater training.

<HARDRETURN>Prosecutors said Yerry was illegally seated at the front of the 18-foot Crestliner when Cable turned the boat and collided with a wake. Yerry fell overboard and was struck by the boat’s drive and propeller.

<HARDRETURN>He also dismissed suggestions by the defense that Cable bore no responsibility for where Yerry was seated.

Defense lawyer Peter Anderson argued that prosecutors lacked a conclusive blood-alcohol test near the time of the crash that proved his client was intoxicated.

<HARDRETURN>“What did the state offer to you as evidence other than alcohol consumption (to prove) that Eric acted negligently and actually caused Brendan Yerry’s death?” he said.

Jurors heard that blood alcohol tests taken from Cable showed his blood-alcohol level at .04 and .03 about six hours after the incident.

<HARDRETURN>A state expert testified that Cable had to have been intoxicated when Yerry fell from the boat.

Judge Marguerite Wageling agreed to revoke Cable’s bail pending his sentencing hearing.

Cable faces up to 7½ to 15 years in state prison for the conviction of negligent homicide/driving while intoxicated.

<HARDRETURN>jkimble@newstote.com

A life lost. A life ruined. Many lives affected.

I'll never understand the need for the captain to drink out on the water. :(

Isn't boating fun enough, without additives...?
 

Me, neither.

New Hampshire could "take a page" out of this state's Boater's Guide:

Or people could take personal responsibility for their actions.

Goes to show how money talks.....And I think ya know what I'm talkin' 'bout....:rolleye2:

Why was the BAC test delayed? Is it voluntary? If so, why did he submit to the test at all?

It is too much to hope that, now ANY captain will think twice before consuming any alcohol or other impairing substance when on the water. Temping as it might be, I will not have a drink or drinks and pilot my boat around the lake. I cannot understand why a boater can openly drink and pilot a boat around legally with a beer in his hand, while this is illegal on our roads. Many people fail to see the 'operating a potentially fatal multi-ton vehicle with no brakes' aspect of boating. ........Just fun and games when on the water.

Most of us has seen groups of people at the sandbars consuming drink after drink, and then go blasting across the lake. I worry less about them and more about the responsible boating family they are about to plow into.

Most of the drinkers, I fear, will shrug this off as, poor bastard, it won't happen to me.

Wishful thinking, sadly
 

The problem is many people have no clue how quickly things can go bad while boating and how in a flash you'll need all your wits. Those become statistics or court cases.

I'll be the opposing view here.

My wife and I very much enjoy loading into the boat late afternoon/evening, cocktail in hand for a slow (usually about headway speed) cruise around the lake at sunset. At any point in time, I expect that I would still pass a DUI test, and I'd hate to see one of these simple life pleasures restricted due to the minority of boneheads.

Do I agree with you about the ones who spend the day chugging on the sandbar, absolutely? Would we still enjoy the cruise without the drink? Of course, but not as much. It's one of life's simple pleasures, that done correctly, causes no harm.

As always, the problems come enforcement and associated costs. Ideally, my response would be to target the aforementioned boneheads and make the penalties more severe. But that would assume there are enough resources to enforce this. But completely eliminating on board alcohol would face similar enforcement challenges.

That's the current law....
 

.....and it's adequate. I agree with Merrymeeting. You can have an alcoholic beverage but YOU CAN'T BE DRUNK. It's not really all that hard for the captain to moderate their consumption. Many just chose not to. Changing the current law won't help.

BAC test
 

I would like to know if each patrol boat has a breath analyzer. If not then that explains the reason for not having a BAC.

They outfitted the patrol boats with all the bells and whistles for navigation and not supply equipment for breath analyzing, speed check was something I have seen in the past. I think even a 'dash cam' should be in their arsenal.

I was stopped only once in my adult life for an equipment violation, light burned out, but the MP asked me if I had had anything to drink. I told them I had had 1 glass about wine about 2 hours prior. That was the end of it except for the $70 ticket for the light. :look:

walk the line!
 

Yah, they could make the perp a straight line in front of the boat in front of the dash cam. If they sink they're drunk or a witch (or do the witches float, I can't remember).

Duh, they melt. ;)

Usually I like to keep my posts humorous, however I have some experience in the field of alcohol testing so thought I'd put some straight skinny out there.

1. MP do not carry evidential breath instruments onboard. They may have a PBT (pre-arrest breath test) instrument, but it does not comply with NH law to supply a preserved breath sample for the defense.

2. In serious accidents the charged individual cannot withdraw their consent to have a sample supplied. That is, a sample will be taken and they can't say no.

3. Obtaining a sample six hours after an incident is not all that unusual. True, the quicker the sample is obtained the easier it is for the state to prove their case.

4. Back calculation from a known BAC (blood alcohol concentration) is an easy calculation. The number of hours from the incident times 0.015BAC per hour plus the BAC at the time of the test will give an excellent approximation of the BAC. Yes, I agree it is an approximation.

5. If the state's expert is who I think she is, she can handle that calculation and all other pertinent questions.

6. There is no legal limit for a BAC level. It' called a "Prima facie" level and it means that on the basis of that number (0.08 BAC) lacking any strong rebuttal, then the trier of fact has to accept that evidence as true.

7. Now, IMO if you have one drink don't drive a boat or car, for you or your decisions are influenced in some manner. Ideally, a 0.00 BAC for all drivers is what would keep this question moot.

I wouldn't honor that fool with the title of captain. Not only was he drunk, he was untrained and unlicensed. A total disregard for the law.

I'd like to comment on line 7. (and this is IMHO) At my age, alcohol even in small amounts, effects me much more so than it used to. Drinking on an empty stomach and certainly being out in the hot sun can heighten the effect of even one drink. I'll have a beer or wine after an afternoon on the lake back at the dock and can really feel the results quickly. We'll have a cooler along with some cold ones for quests, but for me, as the operator, never until we return home. It's my belief that some people would get behind the wheel of a boat after drinking but not behind the wheel of a car.

Use judgement
 

Everyone needs to honestly assess their own situation. Also the term "having a beer" can mean a lot of things. Grabbing a beer and drinking it down in a short amount of time is one thing. Sipping on a beer over a long period of time is quite another. It's a beverage and used properly can result in a negligible amount of alcohol in the blood with no discernible impairment. The body process alcohol over time (per the formula stated earlier) so as long as you remain below that....nothing. I know this is an emotional topic for some, and there are those that can't "honestly assess their own situation" for some reason, but each can decide their own path.

Very true. The effect is different on everyone. I agree the key is the ability to honestly assess your own situation. Unfortunately there are some who cannot and some who just ignore it. Sadly the path they decide not only effects themselves but also other people.

Bac
 

I think it should be mandatory to have a some sort of BAC analyzer on the patrol boats, instead of spending a lot of money on a certain 'gun'.

I have seen a forest ranger up along the Kanc a few years ago using one on a college age kid to evict him from the campground. You would think the marine patrol would have them as DUI on a boat is a very serious matter!

Huh?
 

You can't drink IN A CAMPGROUND? :confused: .....and yes, DUI in a boat is a completely different matter.

So are you saying when people go out to dinner they don't have any wine, or a martini with their dinner or dessert? More people get behind the wheel of a car after drinking than they do a boat....JMHO

Hmmmmmmmmm
 

Interesting ideas from several people... I know that if I am out on the boat, or on the golf course, or at the beach, or after working in the yard on a hot day, etc., I tend to feel a little more tired and would likely be more affected by the consumption of alcohol. As such, if I drink at all, I would not have more than one drink before, during, and after dinner.

At the helm, behind the wheel, or hanging onto the handlebars (might as well get motorcycles into the mix), it is incumbent upon the operator to ensure that he is not impaired, thereby putting himself, his passengers, and others at risk.

There are far more cars on the road than boats on the water, at least here in NH, and I agree that more people drive after drinking in a car than a boat. The bottom line is we all need to ensure we don't operate under the influence.

That was my friend Steve's cousin Brendan that had passed in the accident. He was a great guy, typical of these situations...It's never the piece of garbage that caused the ordeal to begin with. Good riddance to the convicted.

If anything, driving in a boat should be more restrictive than driving a car because it is far more difficult. A car travels on a marked road, mostly straight ahead, has signs to help, and has (hopefully) no obstacles to avoid. A boat is operating in a 360 degree environment without any lines or signage to follow. There are all sorts of obstacles to avoid (shallow water, rocks, islands, slow moving boats, people). Driving at night in a boat is especially challenging. The shore lights are misleading and fog at night can make navigation impossible.

I also disagree with the idea that there is no effect of alcohol at low levels of consumption. There is a degradation of abilities with any amount of alcohol. It may be minor and manageable but don't fool yourself, it is there. And if your reaction time is slowed by 1/10 of a second will that matter? Usually not. But it might. Knowing your own reaction to alcohol and your current circumstance (tired, hungry) is very important.

My rule of thumb is to make sure time passes before I drive a boat. I will have a glass of wine at the beginning of a meal and take my time eating. After a couple of hours, the wine has been metabolized out of your system. No second glass!

Research has proven that 1/3 of the amount of alcohol that it takes to make a person intoxicated on land can make a boater equally intoxicated on the water. Environmental stressors such as sun, wind, wave motion, and vibration can effect your reaction time similar to alcohol. These stressors tend to dehydrate your body and cause alcohol to be absorbed into your system more quickly.
Even though you may have less traffic on the water, you have to be even more alert of your surroundings with other boats coming from all different directions and at different speeds.
Coast Guard statistics show that alcohol use is the leading contributing factor in fatal boating accidents; it was listed as the leading factor in 17% of deaths.
Remember, NH law states that "it is a crime to operate a vessel under the influence of intoxicating liquor or any controlled drug, prescription drug, over-the-counter drug, or any other chemical substance, natural or synthetic, which impairs a persons ability to operate a vessel."

Agreed. Plus don't forget that the typical boater has far, far less experience operating his/her vessel than does the typical operator of a car.

There is also a difference in the type of operation. In my earlier post, I was referring to cruising at headway speed. I don't think I could ever name a time when I've driven my car at that speed for hours at a time. That's a much different scenario than one where I'd be pulling skiers, hauling many inexperienced passengers, or allowing folks to go swimming off the boat.

I live on the shoreline full time. I watch boats cruise by all the time, often talking to and waving to the operators. In all the years I've been on the lake, I'd say it's only about 1 in 100 trips where I think the operator is a bonehead or have a concern. My point is that we need to focus on rules and enforcement's that target the 1 in 100 boneheads, and not put in blanket rules that impact all 100 to try to catch the bonehead who will probably continue to be a problem anyway.

I agree with merrymeeting
 

After the last big fiasco involving boat safety the instigators told the legislature that now the law has past the lake is safe. So the legislature, thinking all is good robbed the marine patrol kitty thinking they are no longer needed. Because big bucks were spent on laser guns and the training to use it, there was little money spent on BAC test. So the whole concept has back fired and the boating population suffers even more bad publicity.

I have talked to my representative about this and he liked the idea of DUI enforcement on the lake. He would like to look into this and somehow make breath analyzer standard equipment on the patrol boats. Unfortunately the legislature has their hands full with ACA and Medicaid expansion.

This goes to show you that repeated attempts to legislate responsibility does not work. Sadly there is no way to way to have somebody with common sense looking over the shoulder of every person that doesn't and the law isn't a substitute for that but that's what it'll come down to. So what will probably happen is that yet again a knee jerk reaction will spawn an attempt to kill the open containers in boats, thus ruining it for everyone because a segment of the population is to stupid to show some self restraint.

Who will pay the ultimate price? Everyone.

Good Question!
 

They do have access to a P.B.T. (Portable Breath Test) device, unfortunately in New Hampshire, this cannot be used as evidence in a court of law. In most states it is treated with the same weight as a breath test at the station. Not here. It is treated as a "tool" that cannot establish probable cause for arrest. Matter of fact, the last time I read the law it states you have to provide the operator with the written result, IN WRITING. In other words, pull the cocktail napkin out of their shirt pocket, write the result and hand the napkin back to them. Look it up, I'm not joking. If your serious about Boating While Intoxicated enforcement call your Senators and request they get off their duff and do something about it. We've all seen the outcome in the past several years if you sit idly by an bitch nothing will change with the exception of your frustration level. Stepping off the soapbox now.

Just to follow up with what Scupper is saying I believe you have to fail a field sobriety test before they can ask you if you will take the breath test or P.B.T. It might be hard to walk the straight line on a boat.

Looks like action
 

I believe we can get an organization such as SBONH.org to rally this matter. I find it hard to believe that NH has one of the toughest DUI conviction laws in the nation yet the court falls apart in the actual proof of DUI all because the police cannot use the available tools!

I'm sure there will be big PAC money from the alcohol companies, the hospitality industry as well as the ACLU. But something has to be done to provide a measure of proof in court that someone is under the influence. With marijuana slowly becoming legal in the US, this is more important than ever!

I'm surprise that the other infamous NH organization will not stand up whatsoever regarding DUI.

I think you will find that these are the rules regarding use of the PBT in a probable BWI situation:
PRELIMINARY BREATH TESTING (PBT) – A certified Marine Patrol officer with reasonable grounds to believe a person is BWI may request that the person submit to a PBT. A PBT is a handheld breath testing device that is used on scene prior to arrest. The results of the PBT may be introduced into evidence in a court for any relevant purpose. There is no violation for a person’s failure to submit to a PBT. The fact that a person refused a PBT may not be admissible in court except for determining whether the officer had probable cause to arrest the person. The officer must inform the person orally that failure to submit to a PBT or taking the PBT will not prevent or require a subsequent test. The results of the PBT must be given immediately to the person tested (and in writing), if requested.