There have been a few crashes lately which have resulted in the death of a cyclist or pedestrian and a slap on the wrist (at best) for the driver who killed them. In Virginia a cyclist was hit from behind because the driver was blinded by “a significant glare from the rising sun" and the driver walked away without so much as a ticket. In Maryland, a driver hit a cyclist from behind because she'd failed to clear her windshield of dew and admitted she was busy looking for her lighter. Even with that admission, her fine was only $287.50 (which surprisingly she had the audacity to protest as too high). The problem is that while there is a high penalty for gross negligence, such as driving drunk or other willful intent situations, there is little (in Maryland) to none (in Virginia) for mere negligence. DC on the other hand does have a negligent homicide law.
Imagine four incidents in which a cyclist is hit from behind.
I. Driver was heard yelling "I'm going to show you cyclist" before the collision.
II. Driver was drunk
III. Driver was inattentive
IV Cyclist was drunk, riding at night wearing all dark clothing, no lights and no reflectors.
Case I would be murder. Case II would be reckless driving or involuntary manslaughter but in Virginia, Case III and Case IV are criminally indistinguishable.
VaBike has called for passing a Vulnerable User law like they have in Oregon, and while I agree with their argument for the need for the law, count me among those who'd like to see it do more.
Oregon’s provisions include a mandatory court appearance, a one year suspension of driving privileges, and a $12,500 fine. It falls short of what many would like to see, but is a start.
Maryland's Negligent Driving penalty is capped at $500 as I read the law, but the judge said he couldn't go above $285.50, let's not quibble and just agree that it's too low.
DC's law on the other hand has some real teeth.
Any person who, by the operation of any vehicle in a careless, reckless, or negligent manner, but not wilfully or wantonly, shall cause the death of another, including a pedestrian in a marked crosswalk, or unmarked crosswalk at an intersection, shall be guilty of a felony, and shall be punished by imprisonment for not more than 5 years or by a fine of not more than $5,000 or both.
Maryland distinguishes between reckless and negligent, but DC's doesn't. If DC's law addresses case III above, and it appears it does when I look at one case where it was used (it is also being used in this case where the driver was allegedly on PCP) then it would be a good model for MD and VA. But Washingtonian has an article with some details on it that it make it wouldn't be applicable in the Virginia case.
Negligent homicide, DC’s least severe criminal charge for drivers involved in fatal collisions, requires proof that a person drove in a “careless, reckless, or negligent manner.”
What’s careless in one situation may not be in another. Most drivers occasionally take their eyes off the road. Could a momentary lapse in judgment land a driver in jail?
“The pedestrian cases we’ve prosecuted are pretty egregious,” assistant US attorney John Soroka says.
But a driver could be charged with negligent homicide for hitting a pedestrian while going ten mph over the speed limit. “If it’s icy out, that could be incredibly dangerous,” he says. “At 3 am on an empty road, there’s not as much danger.”
Cell-phone use could also constitute negligence. In the District, where it’s illegal to drive while using a hand-held phone, a driver who isn’t using a headset and runs into a pedestrian in a crosswalk could face a criminal charge. If a driver is on the phone illegally and hits someone who crossed against a light? That’s different.
Among Soroka’s harder decisions: A woman driving in Northwest DC two years ago made a left turn onto Wisconsin Avenue just before sunset and struck two pedestrians in a crosswalk. The driver didn’t see them because the sun’s glare blocked her view. One of the pedestrians died; the driver wasn’t charged.
“The law says there are some things that are just accidents—not crimes,” Soroka says. “That’s a tough thing for families to understand sometimes.”
I don't know if that's "an accident" - out driving your vision seems preventable to me. If you can't see, and you know there might be pedestrians in the crosswalk, and continue going...that's not an accident.
Georgia has a law for second degree vehicular homicide
Second degree vehicular homicide encompasses all vehicular homicides without intent to kill that involve any other violations of the laws governing the operation of motor vehicles. For example, a death resulting from a failure to yield to oncoming traffic, speeding, or driving too slowly, unless such constituted reckless driving, could be charged as a homicide by vehicle in the second degree.
Second degree vehicular homicide is a misdemeanor, punishable by imprisonment or other confinement for up to 1 year, a fine of up to $1,000.00, or both. However, at the judge’s discretion, punishment may be suspended or a probation sentence may be received.
And it too would be an adequate solution to the Case III issue.
Of course, we could do better. Both the DC and Georgia laws have the advantage of applying to cyclists. The Oregon law is not limited to fatalities but also kicks in for injuries. Ideally what we'd have is something that combines these benefits.
In Maryland Circuit Court Judge Paul G. Goetzke said after a driver was acquitted of a manslaughter charge for killing a pedestrian after running a red light which she claimed she didn't see because - again - of sun glare (maybe we should outlaw morning and evening sun) "There is a loophole in the criminal law. There should be an additional type of charge in which the state is only required to prove simple negligence." Agreed. The same article gave another example
Deputy State's Attorney William Roessler gave an example of a case he recently reviewed, a fatal collision from last year involving a man with a long record of running stop signs and red lights. The man had about 70 priors.
"Sure enough, he runs a stop sign and some old lady runs into him and died," he said. "Well, I can't put in his prior record (at trial) to prove gross negligence, and what I have to prove gross negligence is that he ran a stop sign.
"Now, based on his lifelong history of disregarding the law and killing somebody, I'd like to be able to charge him with something more than a fine. But I can't."
The man is expected to be charged with simple traffic offenses.
Prosecutors said they will push the General Assembly, as they have unsuccessfully in the past, for a new law allowing jail time in more fatal accidents.
They should pass a law like DC's or Georgia's (or even Oregon's if that's all they can get through) despite what Eric Hartley says. And the law should allow for showing priors. Hartley's argument that there is no loophole seems to be, a jury found her innocent under this law, so the system worked and if you change the law you'll get a different outcome which means the system isn't working anymore. Furthermore he argues
Expanding the list of such crimes is risky. And what would it really accomplish? Does putting someone in jail for six months or a year really protect the public, or does it offer some ultimately empty sort of vengeance?
Well, you can certainly question our whole criminal justice system (my father has volunteered in the Texas prison system for years, and so I'm somewhat familiar with the flaws) but that isn't the question at hand. The answer to his second question that we've come up with as a society is yes, putting someone in jail for six months or a year protects the public, through deterrence and securing dangerous individuals. If you want to argue that jail is ineffective, it's a moot point. The point is that people who drive negligently should be treated as criminals; how criminals are treated is a larger issue.
Frankly, Hartley does one of the worst jobs of making his case that I've ever seen in an editorial. Here is his response to Judge Goetzke's point and the logic that follows it.
But he's wrong: There's no loophole. And there was no miscarriage of justice here. [WC: No one argued it was a miscarriage of justice]
"If we start criminalizing accidents, where do we stop criminalizing them?" asked Laura Robinson, a defense attorney in Glen Burnie. [WC: where there is no longer negligence]
Last year, a fairly typical year, five people were charged with auto manslaughter and another nine who caused fatal accidents could be charged only with traffic violations, Roessler said. But in and of themselves, those numbers prove nothing. Maybe most of those nine people don't deserve to go to jail. [WC: "Maybe most"? As in "maybe some" do deserve to go to jail? You're really convincing me now.]
Indeed, the Rowland case, which is being pointed to as evidence of a problem, actually seems to demonstrate that the system works.
Roessler charged Rowland with auto manslaughter and took his shot at trial. Rowland, who appears to have zero criminal record in Maryland, said she could not see the red light as she drove on Route 198 because of the morning sun's glare.
A duly constituted jury of her peers found her behavior did not constitute gross negligence, so it acquitted her of manslaughter and convicted her of reckless driving and other traffic offenses.
Even if we don't like the result, that's justice.
That is justice, but all that that proves is that gross negligence is too high a standard for this case. It does not prove that a lesser law for simple negligence is not needed - in fact, it kind of proves the opposite.
There are too many cases where drivers are killing people while driving in a negligent manner. In DC it's a serious crime, in Maryland it is a traffic violation and in Virginia it's just an accident. Both Maryland and Virginia need to start treating it like a crime so as to make all road users safer.
Photo by Velo_City