Tweets add jail time to sentencing

LIHUE — The grandson of an American food giant was sentenced to jail Thursday after complaining about his court case on Twitter.

A 5th Circuit judge added 90 days to what could have been a jail-less sentence with probation — largely because of the defendant’s own statements on social media.

Jesse Carter Lay, 42, was sentenced to one-year probation and 90 days in jail on Thursday for negligence and driving under the influence of a drug intoxicant in a 2009 Kilauea traffic accident.

But it was his Tweets as much as the accident that landed the grandson and son of Frito-Lay’s founders behind bars.

“He could not protect you from you,” Chief Judge Randal Valenciano said to Lay about the defendant’s attorney, who had negotiated Lay out of prison during the three-year court proceeding until the last minute, when Lay voiced his displeasure via social media.

Lay’s Tweets said he had a problem with local police and seemingly mocked drug tests.

“This is a big issue before the court,” Valenciano told Lay. “I almost took them personally.”

Lay, who lived in Kilauea at the time of the two-vehicle accident, was operating a 2008 Hummer and was swerving and driving at excess speeds, according to the police report on the May 4, 2009 wreck. The Hummer crossed into oncoming traffic to avoid rear-ending a vehicle that had slowed to turn onto Kolo Road, and collided with the vehicle driven by Jake Marino, 35, and his wife Ofelia, 31, both of Riverbank, Calif.

“I was trying to move out of the way,” Marino stated in the police report. “He plowed right into us head-on.”

Lay admitted fault in the report and offered restitution in the civil arbitration. After making his appearance for the criminal case, Lay left the jurisdiction for his Santa Monica residence until a 2009 grand jury warrant was issued, charging him with first-degree negligent injury, operating a vehicle under the influence of an intoxicant and inattention to driving.

Lay returned to Kauai on June 18 to accept a plea agreement on reduced misdemeanor charges and the state agreed to probation and no jail time.

Lay had a zero blood alcohol level at the time of the accident. Both victims, who were not present at the sentencing, were treated and released from Wilcox Memorial Hospital emergency room following the crash. Officers charged Lay based on a field drug recognition exam of his pulse, pupils and other signs that he may have been under the influence of a depressant or other drug.

Defense attorney Dan Hempey said that Lay suffers from extreme pain after two spine operations, and that it was remarkable the defendant was still alive as he fought a deadly form of leukemia and just the week before sentencing suffered a broken arm.

Lay may have accidentally mixed his medications, taken an extra pill, or in combination with something else that resulted in the unforeseen reaction, Hempey said in court.

But the judge said he was skeptical about the claims of accidental misuse of prescription medication. Valenciano referred to social media statements that indicated substance abuse was an issue with the defendant and that jail was appropriate in this case.

Jail was never discussed as an option in several pre-trial hearings with the court, Valenciano said. Then he read the Tweets where Lay alleges he “has no substance abuse problem but did have a problem with police,” and that his “last urinalysis had an olive in it.”

Other Tweets talked about the defendant’s attitude toward the court process and his case. Hempey called the Tweets immature and in poor judgment, but asked the court to consider it was banter between friends and not meant to be viewed by the public.

But Valenciano disagreed.

The court also denied Lay’s motion for a deferred acceptance of the no contest plea. It would have allowed a motion by Lay to remove the conviction from his record after probation. Lay, who is the owner and investor of Venture Capital Group, must also undergo a substance abuse assessment.

A restitution request was deferred until a related civil case before Judge Kathleen Watanabe is resolved.

The Marinos filed a civil suit for medical expenses and special damages on Nov. 15, 2011. The couple amended the complaint to add punitive damages with claims that medical conditions related to the accident have rendered them 100 percent disabled.

Lay’s late grandfather, Herman Warden Lay, Jr., and his late father Herman Warden Lay Jr., were founders of the snack manufacturer that would become Frito-Lay in 1962.


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