Activists try to address Senator's concerns about Vehicular Homicide Bill as Clock Runs Out in Maryland Senate

by Jim Titus

Our initial elation of finally passing the bill in the House of Delegates quickly gave way to apprehension that getting the bill through the Senate Judicial Proceedings Committee this year is an uphill battle because there is so little time.  WABA, AAA, Bike Maryland, and Adiva Sotzsky have persuaded a couple of senators who were initially undecided. But Committee Chairman Brian Frosh (D-Bethesda) is skeptical.

Fortunately, Senator Frosh has been very open and transparent about his skepticism, making it possible for us to at least try to address his concerns. Right now, someone can only be convicted of vehicular manslaughter if they know that their driving creates a substantial risk of killing someone; under the Model Penal Code standard (which H.B 363 adopts), one could be convicted of negligent homicide if they should know the driving had a substantial risk of killing someone. Last Wednesday’s Washington Post had the following account:

To Frosh, that new standard could be applied to the mother who fatally hits a bicyclist when she takes a glance at a crying child in the back seat of her minivan.

“When moments of inattention can kill somebody, that’s a terrible thing,” Frosh said. “You can lose your house, your job, you can lose everything you own in a civil suit, but do we want to send that mother to jail."

I've read a few hundred cases on negligent homicide in 8 states that have adopted the Model Penal Code standard over the last several days, to see whether there is a basis for this concern. I am making a table (complete for 4 states so far) that shows the facts that do and do not result in a conviction for those states. That table footnotes the supporting case law. It may end up as part of written testimony we submit. I’ll keep inserting new versions of that table.  The Post also reported:

To thread the needle to Frosh’s satisfaction, the bill’s advocates need to define “precisely what their target is.”

Will that hypothetical lady in the minivan who looks back into a car seat and kills a cyclist be guilty of negligent homicide? From the case law I have read so far it depends on what else was going on. Here are a few examples.

1. If she was driving 30 mph over the limit, or in a bike lane, or cruising down a shoulder to pass a line of cars--and then looks back at her child and hits a cyclist: probably guilty.

2. If she sees the cyclist ahead, and then looks back at her child and hits the cyclist: probably guilty.

3. If there is a stop sign ahead that is clearly visible, and she looks back at her child and runs the stop sign and hits a cyclist: probably guilty.

4. If the road ahead is clear, and she looks back at her child for 2 seconds during which time a cyclist enters the road and she hits him: not guilty.

5. If the road ahead is clear and she looks back at her child, a cyclist enters the road, she crosses the double yellow line, and hits the cyclist: not guilty.

6. If she runs a red light just barely before it turns green and hits a cyclist in the intersection after it turns green: not guilty.

7. If she loses control of her vehicle while driving 70 mph through a safe-turn 45 mph sign when the speed limit is 55 mph: not guilty

8. If the road ahead is not clear, and she accidentally crosses the double yellow line and hits a cyclist who was plainly visible before she looked back at her child: not guilty in New Hampshire; guilty in Arkansas (if she is a professional minivan driver). So other states could go either way, and even Arkansas might reverse the conviction for a nonprofessional driver.

(I am assuming here that she invokes her right to remain silent and no passengers testify against her. Passengers saying that they warned her against something that she did will hurt her case--maybe the passengers should help with the child.)

A few decades of case law from the states that already have a law like H.B. 363 shows that the term "substantial risk of death" does not apply to the necessary day-to-day activities in which people engage, so those activities could not be a cause for negligent homicide. If you know of any other possible fact patterns that concern Senator Frosh (or any other Maryland Senator) please let us know and we’ll see if we can find a case that is at least generally on point.

Cross-posted at WABA blog

Comments

[Contrarian]

I have mixed feelings about this bill. There is a pretty significant body of evidence that shows that the key factor in deterrence changing people's behavior is the chance of getting caught, not the severity of the punishment. It's much more effective to have a small penalty with a high probability of getting caught than a harsh penalty with a low probability.

Presumably the intent of a law like this is to discourage dangerous behavior, rather than exacting punishment for the consequences. Since fatal collisions are rare, even for the most reckless drivers, it's unlikely this law will have much deterrent effect.

As Jim's examples show, under this law distracted driving by itself will not be punished. It needs to be coupled with other reckless behavior. The examples given are passing on the right, driving in a bike lane, running a stop sign, and speeding (and not 15+ speeding but 30+ speeding). True safety comes from deterring the reckless behavior rather than punishing it after the fact.

All of these behaviors can be deterred by enforcement. And while there are places that have a culture of traffic enforcement -- pockets in the US and Europe -- our region is not one of them. As is so often the case in cycling advocacy, the choice is between what is effective and what is politically possible.

[SJE]

Contrarian, do not let the perfect become the enemy of the good. At least with this bill there is some serious consideration of how to reduce the carnage caused by the worst drivers. Negligent homocide should not be merely a traffic ticket.

[Blue-eyed Devil]

At great risk of seeming profoundly abstruse, Frosh is an idiot.

This is an example of "if this bill is passed, any one of us might break the law, so let's not pass it." It's no accident that Frosh uses the mother and child scenario. But it's not a huge jump from "glancing at a crying child in the back seat" to "reaching for a cup of coffee."

Unsafe behavior is unsafe behavior, and shouldn't be dismissed or accepted just because many people regularly engage in it, especially when it results in death or injury.

This increasingly common (in all aspects of life) trait of trying to avoid responsiblity for one's actions is exceedingly disturbing. Unfortunately, it is (and has been for many years) a disease that spreads from the top down.

[medical malpractice]

The example given over here of a lady makes it easy to understand.