Two years ago Maryland created a new crime of vehicular negligent homicide in Maryland, which allows prosecutors to seek criminal penalties when a sober-but-aggressive driver causes an accident that kills someone. As far as I know, no one has been prosecuted under this statute for killing a cyclist. But Anne Arundel County prosecutors should be seriously thinking about doing so in the case of Patricia Cunningham, an Annapolis high school coach who was killed August 21 on Riva Road.
A police officer apparently sent this account to a local cycling group:
Today a young female cyclist was killed on Riva Road...
Right at Indian Point Ct is a quick rise in the road. At its highest point you can't see traffic coming from the other way. A van traveling possibly 40 or so mph saw the female cyclist and decided to pass her as she was going over the hill. As the van went to pass on the other side of the road a vehicle coming the other way appeared. The van immediately swerved right RIDING OVER the cyclist. I won't go into details of her injuries. Let’s just say her shoes were knocked off her body. She died at the scene. A little patience by the driver of the van and 2 peoples lives would not be forever changed.
Below is a video taken by Alex Pline, one of the leaders of Bicycle Advocates for Annapolis and Anne Arundel County, as he drove the same route at the driver's estimated speed.
Aggressive drivers who kill are rarely prosecuted unless they are drunk or leave the scene of the accident. Perhaps because many “respectable people” drive aggressively, it is hard to feel comfortable sending people off to jail when they accidentally kill someone while driving in a way that most people drive. But it is also hard to feel good about the idea that killing someone has no legal consequence. Courts and the Maryland legislature have wrestled with this paradox for decades.
Let’s take a look at felonies that might be committed by a driver who kills another person. We can rule out murder in this case, because that requires intentionally killing someone, or at least total indifference, such as when someone deliberately drives into a crowd of people, not caring whether they live or die.
The next most serious form of homicide is manslaughter, which has a maximum sentence of 10 years. Manslaughter means killing someone through reckless conduct. To be reckless, someone must (1) be driving in a way that has a high chance of killing someone, and (2) realize that she might kill someone. Many drivers have been convicted of vehicular manslaughter, but had their conviction reversed by an appeals court even though the drivers clearly did something absolutely terrible, because there was no proof that the drivers realized that they might kill someone. For example, a driver in Takoma Park swerved to the right and struck some children walking home from school. The jury convicted the driver of manslaughter, but the appeals court reversed the conviction, because the jury was never told why the driver swerved off the road. (There were no passengers in the car and the driver chose not to testify.)
Convictions of vehicular manslaughter do occur when the driver is either drunk or drag racing, even without witnesses who can testify what the driver was thinking. Courts in Maryland are willing to assume that, in this day and age, everybody who drives drunk or drag races on a highway realizes that they might kill someone. But otherwise, the difficulty of proving what the driver knew makes a manslaughter conviction almost impossible to obtain. So usually, prosecutors do not even try.
In October 2009, Curtis Leymeister was killed one morning in St. Mary’s County while riding his bicycle on the right side of the main travel lane, by a driver who simply did not see him. Kathy Lee May had cleared the frost off a small area on the driver side of her windshield, but she chose to wait for the defroster to clear the right half of the windshield. She hit Mr. Leymeister before the windshield cleared. While it should be obvious that you might kill someone when your windshield is covered with frost, there was no proof that Ms. May realized that she might kill someone. She was charged with negligent driving and had to pay a fine of $287.50.
Two years ago, the Maryland General Assembly created a new criminal offense for criminally negligent vehicular homicide with a maximum sentence of three years. To be guilty of negligent homicide, one’s conduct must be a “substantial deviation” from the duty of care, and the driver should know that there is a substantial risk of killing someone. The prosecution need not prove that the driver knew she might kill someone, but only that she should have known that she might kill someone.
The General Assembly did not go as far as the District of Columbia, where even ordinary negligence may be sufficient to convict a driver of negligent homicide. As the Washington Post reported, the Senate Judicial Proceedings committee only wanted aggressive drivers to be prosecuted:
[The chairman felt] that new standard [should not] 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...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?"
Advocates of the bill persuaded the committee that the new law was reasonable. On behalf of the Washington Area Bicyclists Association, I provided the committee with a review of a few hundred cases from eight of the states that had adopted a similar negligent homicide law.
Assuming that the account by the unnamed police officer is correct, this looks like a case of negligent homicide that would not be reversed on appeal. The driver’s actions were a very substantial deviation from the duty of care: The Maryland Transportation code requires that before passing, a driver must ensure that the “roadway is clearly visible and is free of approaching traffic”, §21-305(a). Passing is also illegal when “approaching the crest of a grade or on a curve in the highway where the driver's view is obstructed,” §21-305(b)(2)(i). Passing is also illegal if there is a double yellow line, §21-307. And once a driver decides to pass, the driver must not return to the right lane until she is safely clear of the vehicle that she just passed, §21-303. These provisions apply even if you are passing a truck. The law also imposes a duty to avoid colliding with a bicycle, §21-1209(a)(1); and drivers must leave a clearance of at least three feet when overtaking a bicycle §21-1209(a)(2). If the driver really violated all of those requirements, this was a very substantial deviation from the duty of care, and thus it was criminal negligence.
Will Anne Arundel prosecutors move forward with a homicide investigation? The probable guilt of the driver is hopefully a key consideration, but it is not their only consideration. The Anne Arundel County State’s Attorney’s office has used the new vehicular negligent homicide statute once, when prosecuting the driver who killed legendary bassist Joe Byrd, bother of Charlie Byrd. But that was not a case of aggressive driving; the driver was distracted. So the prosecutors were (at best) testing the limits of a staute that the legislature never intended to apply to cases of distracted driving. And as one would expect, the driver was acquited.
Unfortunately, prosecutors may have learned the the wrong lesson. Instead of focussing on aggressive driving, prosecutors from the State's Attorney's office have lobbied the General Assembly to repeal the new negligent homicide statute. In a Senate Judicial Proceedings Committee hearing (March 13, 2012) a top Anne Arundel prosecutor said that he does not know how to prosecute a case under the new statute. The mother of a cyclist killed in Baltimore, and Delegate Luiz Simmons (D-Rockville) responded by offering to help train the Anne Arundel prosecutors.
With a possible crime and a reluctant prosecutor, the tie breaker for prosecutorial discretion may be public comment. What bothers Anne Arundel citizens more: The possibility that routine aggressive driving might land you in jail? Or that drivers who kill can keep on driving? Your preferences only matter if you speak up. To send a message to the State's Attorney's office, please click this link.
As we have discussed on this blog many times, prosecuting the driver for negligent vehicular homicide would probably not result in a long prison sentence. The point of prosecuting a driver is not to ruin her life, but to protect society: provide the strongest possible deterrent to such dangerous behavior, prevent the driver from doing this again, and rehabilitate her into becoming a model driver. Perhaps society's interests would be better advanced by taking away her driver's license and requiring her to take a course in safe cycling.
That would be up to the judge to decide. But it's up to the prosecutor to put the matter before the court. And it's up to all of us to tell the prosecutor to do so.
(Jim Titus is on the Board of Directors of the Washington Area Bicyclist Association. An earlier version of this post was in the Edgewater Patch )
too bad.
thats an understatement to be sure.
ive ridden that stretch countless times. I DO NOT RIDE IT ANYMORE. in fact, there are MANY roads I dont ride on, despite my having the legal right to do so...
when i did ride that stretch you can be DAMN sure i was in the center of the lane BLOCKING and yelling and telling motorists to go fuck themselves...and thats why im alive after 30 years, and 15,000 miles a year, in many places on the globe, in some of the most hostile areas on earth and in the USA to bikes.
being polite will get you killed. riding on the right edge will get you killed. thinking law enforcement will do anything will get you killed.
maryland is more hostile to bikes than alabama and florida, which is really saying something..ive tried EVERY way to get to annapolis from DC and there simply isnt a good way: there are some routes but they are UGLY b/c they are kinda safe.
another person killed because they road a bicycle. throwing the driver in jail wont do shit...
biike advocatess are clueless. they need to be social scientists..and theyre too arrogant and lazy to do that...
Posted by: toobad | September 06, 2013 at 01:05 AM
"theyre too arrogant and lazy to do that.."
Says the guy who doesn't do anything at all.
Posted by: washcycle | September 06, 2013 at 10:10 AM
If it wasn't for the advocates giving up there personal, family and work time, we would be in a far worse situation.
The real problem are the politicians, developers and extreme environmentalists who water down the laws and stop road shoulders, trails and sidewalks from being built.
Posted by: Joe | September 06, 2013 at 10:21 AM
Would a lawyer or other knowledgeable person comment on how criminal prosecution affects the ability recover in civil court in such cases? Coming from the medical world, it seems to me that big judgements might be effective penalties and deterrents on their own.
Posted by: Smedley Burkhart | September 06, 2013 at 10:45 AM
No sentence short of losing driving privileges for life. This person should never be allowed by society to drive a motor vehicle again.
Posted by: Greenbelt | September 06, 2013 at 11:50 AM
Bad Driver + Bad Infrastructure = Cyclist Death
Posted by: jeffb | September 06, 2013 at 08:45 PM
Well put jeffb! We need t-shirts and placards with that on them!
Posted by: Joe | September 06, 2013 at 09:30 PM
Greenbelt: Part of the problem, IIRC, is that it is hard to attack their driving privileges unless there is a criminal conviction. Of course, most juries aren't willing to put someone in jail, and destroy their life, over reckless driving. I am willing that most juries would be willing to ban people for driving for life, however. Even in AA county.
As for civil v criminal: civil has a lower burden of proof than criminal. You can still go after civil penalties whether or not there is a criminal conviction. There are two problems, however.
1. Civil damages are $, trial is expensive, and so its usually not worth suing the perp unless they are rich (e.g. OJ).
2. One point of criminal law is to show that society disapproves of certain behavior. It's a shame that we have to resort to civil prosecution because the criminal prosecution won't protect us.
Back to this particular case: prosecution here would be tough in AA county. We need to make the victim particularly noble. If the driver has a previous bad traffic record, insurance problems, drug or alcohol problems, it can be spun and might be worth it. But a 12 person jury is not going to jail a suburban soccer mom in a minivan for a "mistake" that they can see themselves making.
Posted by: SJE | September 07, 2013 at 02:28 PM
I sent e-mails with my concerns and here are the responses I received.
Thank you for taking the time to share your concerns and input on this
matter. Traffic fatality cases can be extremely frustrating as it takes
a considerable amount of time for the police department's traffic safety
division to complete their reports. It is not unusual for their reports
to take 8 weeks or more before they are presented to our office.
Accident reconstruction, subpoenas, analysis and related investigation
consumes a great deal of time but it is done so that we have all the
information possible to make the right decision.
I have forwarded your letter to our Deputy State's Attorney who reviews
the final reports and assists in making the determination as to
appropriate charges. Please let me know if there is anything further
with which I may be of assistance to you.
Thank you again for your time.
Very truly yours,
Kristin Fleckenstein
Communications Director
Anne Arundel County State's Attorney's Office
7 Church Circle, Suite 200
Annapolis, MD 21401
(410) 222-1740 ext. 3845
[email protected]
and...
Thank you for your letter regarding the death of Patricia Cunningham.
We have received numerous letters such as yours and review each and
every one of them. I fully respect members of the cycling community
calling for an in-depth review of the factors in this matter. I assure
you that the Anne Arundel County Police Department will provide us an
extremely thorough review so that this office can make the decision as
to whether or not criminal charges are appropriate in this case.
When traffic fatalities occur, members of the Traffic Safety Division
of the police department conduct a lengthy and meticulous investigation
of the accident. They then complete an extremely detailed report which
is forwarded to this office. Due to the immense amount of analysis and
review that goes into these cases, reports on them typically take eight
to ten weeks and sometimes longer to complete. It is difficult for
those awaiting the results to have patience during such a timeframe.
Please be assured it is necessary so that we have all factors required
to make the important decision as to appropriate charges if they are
warranted.
In the meantime, please know that we appreciate your taking the time to
reach out to this office. There is very little we can comment on at
this point in time as we do not have a final report. Once we do have
it, however, we will be able to make a determination as to whether or
not the evidence is present for criminal charge.
William D. Roessler
Deputy State’s
Posted by: twk | September 07, 2013 at 08:02 PM
greenbelt is right on again!!
the deputy state dude is clueless: WE DONT WANT A CRIMINAL PROSECUTION!!! WE WANT THE FUCKING EXTANT ROAD LAWS ENFORCED!! we want that section of road closed in one direction until it is fixed to be safely ridden...OR WE WANT THE FUCKING ROAD CLOSED TO BIKES WITH BIG SIGNS TELLING US THAT THIS ROAD IS TOO STUPIDILY DESIGNED to be used by both bikes and cars!!
we should be criminally prosecuting the state attorney if they continue to not carry out the laws of the road!!!! ENFORCE THE GOD DAMN SPEED LIMITS...this is not rocket science!!
Posted by: continutedeleting | September 08, 2013 at 10:06 PM