Mimesis Law
19 September 2017

Yesennia Gonzalez: Making The Worst Of An Already Terrible Situation

December 14, 2016 (Fault Lines) — Few things suck worse than getting a DUI, but it’s important to always keep in mind that those worse things do in fact exist. Just ask Yesennia Gonzalez:

TUCSON, Ariz. – A Pima County Sheriff’s deputy lost his eye after a drunk driving suspect kicked in his left eye with the heel of her boot Saturday, according to the sheriff’s office.

Traffic deputies were conducting a DUI investigation in the area of East Drexel Road and South Alvernon Way when they arrested 28-year-old Yesennia Gonzalez.

The officer sure was unlucky. Had Gonzalez worn different shoes, maybe he’d still have his left eye. If it was a legitimate DUI stop and arrest, and had she driven just a little bit better, maybe their paths might have never crossed. Had she had just a little bit less to drink, maybe the encounter would’ve ended there.

Furthermore, although it’s impossible to say without having been there or even read the police report, it could also be that things might have never happened the way they did if police had handled the situation a bit more tactfully. They could have also acted like model cops and she’s just a total loose cannon, of course.

Before making contact with a suspect, police tend to take an officer-safety-centered approach. The person they’ve contacted could be armed and dangerous, after all. By the time an officer realizes it’s just a routine DUI stop, they’ve typically let their guard down a bit.

Sometimes, the professionalism remains. They’re courteous and understanding, but they do their job, which usually results in an arrest. Other times, they turn from armed men slightly frightened of the unknown to domineering taskmasters bullying impaired people all the way back to the jail. It’s unclear what exactly happened with Gonzalez, but it’s obvious it didn’t end up as officers planned.

In Gonzalez’s case, deputies certainly didn’t profile her as the sort of bruiser who’d cause a cop to lose an eye following a fight:

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Yet another reason why things went down the way they did is probably because the deputies didn’t see her as a threat. That she looked harmless is just another little bad fact that led to the terrible outcome here. Had she been a giant, muscular young man with face tattoos, deputies might’ve taken more precautions to avoid getting kicked.

In the end, Gonzalez might end up almost as unlucky as the officer by the time her cases are resolved, as the terrible but unexpected outcome drastically affects the seriousness of her charges:

Gonzalez was booked into the Pima County jail on two counts of aggravated assault on a police officer, one count of resisting arrest and one count of DUI.

DUI is a misdemeanor in most instances. On the other hand, an assault on a police officer which causes serious physical injury or uses a deadly weapon or dangerous instrument is a class 2 felony, the most serious class of felony a non-homicide can be in Arizona.

Gonzalez’s lawyers will have a hard sell trying to convince anyone that losing an eye isn’t a serious physical injury. And that boot heel capable of taking out a deputy’s eye? To be a dangerous instrument, the law just requires that, under the circumstances in which it was used, it was readily capable of causing death or serious physical injury. Even resisting arrest is a felony in Arizona where someone uses physical force or any other means creating a substantial risk of causing physical injury to the peace officer. Gonzalez doesn’t seem to have a great defense to any of the most serious charges.

The seriousness of the offenses are, in large part, defined by the harm caused. Had Gonzalez given the deputy a minor scratch and ended up with those charges, her lawyer might’ve been able to plausibly argue it’s ridiculous to say her footwear could’ve been a dangerous instrument. The presence of a serious injury in any case where the person uses any sort of item almost always means an aggravated assault can be charged two ways. That appears to be the case with Gonzalez.

Considering the typical facts of the case, it’s even clearer that the harm is the factor with the biggest impact on the severity of the situation now:

The sheriff’s office said as deputies were attempting to place Gonzalez into a patrol car, she began deliberately kicking at those around her.

Traffic Unit Sergeant Mark Bustamante’s left eye was severely injured when Gonzalez kicked it with the heel of her boot, according to deputies.

Drunk people do stupid things. Nobody but Gonzalez will probably ever know what was going through her head when she decided to start kicking after her arrest. She may not even know, but now she’s got a serious case to address regardless. Even if she intended to do harm to officers rather than just kick her way out of their grip, she surely didn’t plan to kick that deputy’s eye out.

Perhaps she’ll serve as a warning to those who might decide to kick while being placed in a patrol car too, but realistically the ones who should take heed will, like Gonzalez, probably be too drunk to remember what could happen. And again, the outcome probably wasn’t even what she wanted.

Gonzalez’s situation was probably poised to be the worst of her life before she made it worse. Now, it’s even crappier than that. While none of this may serve as deterrence to anyone other than Gonzalez, at least it’s a good example for the rest of us in general about how you can almost always dig deeper if you find yourself in a hole and don’t quit.

2 Comments on this post.

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  • Brad
    15 December 2016 at 11:18 am - Reply

    Did she take out an eye from a standing position?

    Was she on the ground? If she was on the ground, how and why was she there?

    There is no Constitutional right to resist wrongful arrest, but there is a Constitutional right to resist excessive force. How might that come into play in this improbable-on-its-face case?

  • sam
    29 December 2016 at 3:33 am - Reply

    She was probably sitting in the cruiser.
    Why didn’t he shoot her? was it his aiming eye?