More on why the Virginia Beach Homicide was not a Crime

Local cycling advocates met with Virginia Beach Commonwealth's Attorney Harvey Bryant about the death of Daniel Hersh.

After spending 2 hours meeting with Mr. Bryant I can safely say that none of us like what we heard but we are all in agreement with his assessment that no charges could be brought against the driver that killed Mr. Hersh. Both reckless driving and involuntary manslaughter charges require "willful intent". Bryant showed us case law and explained what constitutes willful intent. For example, someone that tries to run a red light and kills someone DOES meet the definition of willful intent while someone who runs a red light that they didn't see does NOT meet the definition.

We then asked about lesser charges like the obvious fact that she didn't give him the necessary 2 foot clearance but, again, the law requires that you have to see something to give it a clearance.

So, the bottom line is that without evidence of willful intent or distracted driving there was no way to charge the driver with anything, especially since she claimed she didn't see him. I would also add that in the re-enactment that the police reconstruction team did there was a significant glare from the rising sun at the spot where she hit Dan although I thought from the news reports that the accident happened just before sunrise.

As someone said in the post, "it looks like we need to change the law." If a DC police officer, I just read, is responsible for a collision while on the job - any collision - they have to at least take a driver safety course. That should be the absolute minimum for a collision where there's a fatality.

Comments

[bikecommuter]

There's still the idea of 'negligence' which is failing to take reasonable care. Driving at speed where a glare is blinding you seems like it would fit

Note that a rising sun would be at a different time and location now than on the day of the accident.

[Brian D.]

Note to self: if ever in an accident, always claim that I "didn't see" whatever it was I hit. Apparently a total valid defense. Sigh. I find it troubling that a driver will get charged with something (a ticket, minor traffic offense, whatever) for running a red light "they didn't see," but hitting and killing a human being they didn't see, they won't be charged with anything. Definitely time to change the law.

[Dan. W.]

Try that with a bike cop next time and see if the driver gets away with a ticket.

Give me a break.

[Rich Wilson]

http://www.independent.com/news/2007/may/02/boysel-case-ends-mistrial/

Sept 2006, 12 year old Jake Boysel was riding to school in the bike lane. He was rear ended thrown and killed by Ernesto Botello, driving with a dirty windshield, seat reclined, into the sun. Ernesto had a documented history of speeding in the trailer park he lived in.

Charges where laid, but the jury could not arrive at a verdict.

[Titania]

I am going to start driving with my eyes closed or with a blindfold, so as I can always claim that I didn't see whatever it is I happen to kill.

I am sorry, but this logic is absolutely insane

[Mike]

How about a ride of violence next time vs the "Ride of Silence?" I get pretty sick of being a defensless target for criminally negligent drivers. If lawmakers and enforcement won't/can't take action there has to be another, more immediate course. Currently if you really want to commit homicide and get away with it, Use a Car and then state, "Oh,I didn't see them." How can this substitute for maintaining control of a vehicle? But,and this is tragic, somehow it does. Where is the justice in that?

[Washcycle]

I hear and share your anger Mike, but I think the answer, rather than violence, is to give the prosecutors the tools they need - a 2nd degree vehicular manslaughter charge for example - to prosecute the kind of negligence that falls below "gross negligence."

http://en.wikipedia.org/wiki/Vehicular_homicide#Georgia

[Scott F]

"We then asked about lesser charges like the obvious fact that she didn't give him the necessary 2 foot clearance but, again, the law requires that you have to see something to give it a clearance."

Then that law is an absolute joke. The mile-wide loophole makes it useless and unenforceable.

If this driver had rear-ended a compact car, killed a kid inside, and said "I didn't see it", can you imagine her getting off scot-free? Me neither. But prosecutors have no sympathy for bicyclists, so they're making excuses.

The driver was swinging a loaded gun around with her eyes closed and finger on the trigger. She should be held responsible. "I didn't see him" doesn't cut it.

[Brendan]

Not seeing something is a form of ignorance, and I was always taught ignorance can't be used as a legal defense.

[guez]

Brendan,

Ignorance of the *law* is not a defense. Ignorance that some kid is hiding underneath your car is. Ignorance of cyclist in front of you... well... that depends a lot on context.

[think a little]

I would highly recommend wearing a ANSI Class 2 or Class 3 vest....
While not being a lawyer, I think that it would create a much stronger case for the "yes, you did see me" when you are wearing clothing that is rated for 300' + of visibility/55mph + traffic

I got mine here, ymmv
http://www.tasco-safety.com/high_visibility_products/class-3-ANSI-safety-vests.html#s3261l-sz