Driver who killed cyclist Tim Holden fell asleep behind the wheel

As was reported earlier this month, the driver who killed cyclist Tim Holden in Bethesda will face no criminal charges. What is new from this recent WJLA story is that the crash happened because the driver fell asleep behind the wheel. 

Prosecutors say a dogged two-month investigation found the driver wasn't drunk, high, speeding or texting, but rather fell asleep during an early morning commute from the Baltimore area to a construction site in Bethesda. Not nearly enough negligence to press charges, they say.

"There's definitely a lot of frustration and anger and fear and sadness in the community over the outcome. The goal would be to protect all the other lives that are still out there. This guy has proven that he can't operate a vehicle safely and we would like to see him off the roads," Evans concluded.

And good news, he's paid his fines, so I suppose his license is no longer suspended?

Montgomery County Police issued Freeman three tickets; one was for negligent driving. Last week he admitted his guilt in Montgomery County District Court and paid $690 in fines.

In the only other case in Maryland I know of where a cyclist was killed by a sleeping driver, the driver got six months in a nighttime-only facility; but in that case the driver left the scene and turned herself in later. So it was a more serious crime. More, including the crash report, is here at a very well researched article in Bethesda Magazine.

“This crash specifically really struck a chord with people,” said Greg Billing, executive director of the Washington Area Bicyclist Association. “Here was a person who was doing everything right while riding a bike, at least from the details that we know, and he was killed with very little consequences for the driver. When as a community and a culture are we going to stop accepting traffic deaths?”

I suspect Freeman faces a pretty hefty civil court judgement, and may have trouble getting insurance - and thus driving - in the future. But then maybe not. 

WABA is arguing that the state is setting a high bar for negligence in the recently passed "criminally negligent manslaughter" law.

The criminally negligent manslaughter law says “the defendant should have been aware but failed to perceive that [his] [her] manner of driving created a substantial and unjustifiable risk to human life,” but also that “simple carelessness is insufficient to establish defendant’s guilt.”

"While it is deeply disturbing to all that a man lost his life while cycling in a calm suburban neighborhood, our investigations and analysis based on the law indicate that this accident was just that; albeit a deadly one," Korionoff said Monday.

“Prior to [2011] there wasn’t anything between a traffic ticket and vehicular homicide.  This was put in to be the middle ground,” Billing said, referring to the criminally negligent manslaughter law. “The challenge is many state’s attorneys have interpreted that bar as very high for what is actually negligent.”

“I don’t know all the circumstances of this case, but hitting somebody who’s in the shoulder of the road is rather negligent,” Billing said. “If the legal tools aren’t there, then we need the state’s attorney pushing for the tools that they need to hold drivers accountable. That’s really what it comes down to.”

I feel like the prosecutor was overly cautious here. Falling asleep behind the wheel is pretty negligent. I think being awake is a minimum standard for safe driving. It would be one thing if this kind of case had been prosecuted many times and the courts had rejected the driving-while-sleepy = criminally negligent manslaughter in all such cases. But I don't get the sense that that is the case here. Instead, this is just an accident. Nothing to be done about it. Move along. 

Comments

[Smedley Burkhart]

Did the prosecutor have this fact? I agree falling asleep at the wheel is negligent, but as a lay person, it seems like it might be hard to get a conviction under those circumstances.

[Joe F]

Pathetic. I assume that if a driver falls asleep causes an accident with another driver and kills an occupant of that car in the process, the end result would be the same?

[darren]

if nothing else, any system that allows this person to continue operating a motor vehicle is broken. they've proven themselves incapable to doing this without killing someone.

[Andrewjh]

Absent the availability of the sleepy emoji, MoCo State's Attorney's Office decided to just use ¯\_(ツ)_/¯

[SJE]

Falling asleep is not as negligent as getting drunk. But putting yourself in a position where you are likely to fall asleep (e.g. routinely driving from a long way away) should be grounds for culpability.

[john]

I freely admit that I am often out of step with the group when it comes to car / bike collisions, so - I guess, feel free to ignore me.

I know that I've driven when tired, and I've driven when distracted, and I've not noticed things in or alongside the road that, really, were right there to be noticed, and while I can't summon up any truly close calls in my lifetime I can't help but think that it's just by the grace of God that circumstances didn't fall together in just the most wrong and awful way that I haven't killed or injured someone at some point. And me - ? I've got it easy, with a job (just one) that pays reasonably well, that only requires me to be there during daylight hours; and my kids are old enough that I don't have to lose sleep while watching them, and I can afford to pay someone to watch them anyhow, and - well, I get to ride my bike to work rather than commute 90 minutes over 35 miles, and so on.

I don't know much about the details (honestly it's so tragic all around I hate to read about it) but it strikes me as a little too easy to say, "oh, he fell asleep, he ought to be in jail". Or - to lay criminal responsibility upon someone for driving long distances at odd hours because (maybe) that's the only way the guy can get to and from the job he managed to land.

I dunno. Not every tragedy, not every accident, has a villain.

[washcycle]

I can sympathize with the guys situation, but it doesn't mean it's OK.

No one just falls asleep. First they notice they're drowsy and drifting off. He chose to keep driving in spite of that - that's your crime. And he had a passenger in the car who could've taken a turn. Or he could've pulled over and taken a break. I simply refuse to believe that the only way this guy can make ends meet is by risking the lives of everyone around him, but even if it is, we can allow people to drive in that state.

I also have sympathy for someone with a drinking problem. They need help. But I lose that sympathy when they get behind the wheel drunk.

Not every tragedy has a villain perhaps, but they usually have someone at fault. And in this case, I think that someone was criminally negligent. We need to stigmatize drowsy driving in a way similar to what we've done with drunk driving.

it strikes me as a little too easy to say, "oh, he fell asleep, he ought to be in jail".

So then sometimes it's OK to kill someone out of selfishness? And in those cases a $700 fine is all that's needed? It this is too easy, what's the nuance I'm missing? If he had 3 kids to support should it only be a $200 fine (Because he REALLY needed the job?) What if he was supporting 8 kids - should we have given him some money and a sandwich?

[john]

No, still it's just too easy for me to imagine this as a horrible, tragic miscalculation, and not a criminal act.

Often when I read of awful events like this I obsess over the facts, trying to find ways to convince myself that, no, that couldn't ever be me, I'd never put myself at risk like *that*; and sometimes I fail, I can't point to the thing that I swear to God I'd never do, wouldn't even get close to it. This is one of those where I fail - as the cyclist, and as the driver. In a slightly different life I could have been either. So I can't bring myself to judge.

[Goldfish33]

He should certainly not be allowed to drive for a long time. One year at a bare minimum. I am unsure exactly what purpose would be served by sending the driver to jail in this case, but a long license suspension, and publicizing this fact, is a no-brainer. Or at least it should be.

[SJE]

We all make mistakes, and that is why I am hesitant to lock this guy away for a simple oops. But here is someone who did something that is highly likely to cause an accident: driving for hours every day, in the very early morning, and likely tired most of the time. We don't let drunk people off, nor should we let people who engage in behavior that is statistically likely to kill.

[Kolo Jezdec]

I am unsure exactly what purpose would be served by sending the driver to jail in this case,"

What purpose is served in sending Heather Cook to jail? Perhaps a lifetime license suspension would suffice?

[washcycle]

I'm not sure how much going to jail helps either, but that's the system we have. At this point it's prosecute for CNM or don't. It seems like the former (with those being the choices) is more just. I do think that a few drivers convicted of CNM for falling asleep behind the wheel might lead to a little more awareness of how important it is that someone pull over when they realize they're unfit to drive (whether that being too drunk or too tired). I also think a conviction for something like that would probably make insurance/a license harder to get and reduce their chances to drive.

I do think a penalty other than jail would be better, but for now this is the system we have.

Full Disclosure: my sister-in-law was killed by a driver who fell asleep behind the wheel.

[Goldfish33]

If it is jail or nothing (or a minimal fine), I absolutely believe jail is the answer, both in this case and with Heather Cook. But, as washcycle pointed out, a better option for society would probably be taking away people's licenses. Heather Cook, who was drunk and texting, should never drive again. Mr. Freeman should not be allowed to drive for at least 5 years.

[john]

I'd draw a pretty clear line between, on the one hand, someone who has a drinking problem, knows they have a drinking problem, gets in trouble with the law because they have a drinking (& driving) problem, and yet continues to drink & drive - and, on the other, someone who falls asleep behind the wheel. The chronic drunk driver is a menace and it's as much the fault of the system as it is theirs, that they're permitted to continue to operate a motor vehicle when *everyone knows they can't do it responsibly*. Jail for them; loss of driving privileges here (just like they should've done for the drunk in Round One).

(Also while I appreciate the self-evidence of the statement, "nor should we let [off] people who engage in behavior that is statistically likely to kill" - I wonder how far we'd be willing to take that in terms of mobile cell phone use - even hands'-free; and blood-alcohol levels below legal minimums, where drivers are also impaired but not *so* much that we feel the need to inconvenience them by forcing people to take taxis after every pint of beer.)

[SJE]

John: if you are using a phone you should be culpable. No question.

As for low levels of alcohol: we have decided on a specific level. Its not a perfect system. But we seem to go from "no crime" to "jail time" if you magically go above a specific limit. That is why we need a more graduated series of inquiries and punishments. It should be easy to take you off the road if you kill through negligence, irrespective of the cause.

[Kolo Jezdec]

"The chronic drunk driver is a menace and it's as much the fault of the system as it is theirs,"

The 'system' is us, the people who elect legislators and State's Attorneys and judges. If we made it through voting and letter writing that drunk drivers and distracted drivers and sleeping drivers deserve severe penalties (at least the long loss of driving privileges if not jail time), that would happen. Operating a 1-2 ton machine is serious business; choosing not to drive after drinking a pint of beer is not an inconvenience, it is a wise decision.

We get the government (i.e 'system') that we deserve.

I believe no one should use a phone in any way while operating a motor vehicle. If a call is so important that the driver cannot give 100% of his/her attention to driving, pull over. That is not an inconvenience, either.

Full disclosure: I lost sight in one eye from an accident involving a driver who was using a phone via a hands-free device. Her hands were not the problem, her lack of focus on operating the vehicle was. She paid fines of less than $200. No license suspension. At least she was awake...

[Kolo Jezdec]

@john "I dunno. Not every tragedy, not every accident, has a villain."

Falling asleep while driving is not an accident. It is clearly and easily preventable, unless a person suffers from certain conditions, in which case the person should not be operating a motor vehicle. Pulling over when extremely fatigued is not an inconvenience, either. A flat tire is not an inconvenience.

[Kolo Jezdec]

Sorry, a flat tire IS an inconvenience.

[Publius]

It seems that after every cyclist death at the hands of a motorist, which occurs about once a week in this area, the discussion focuses on criminal penalties for the driver. While interesting from a criminal justice standpoint, the conversation has little bearing on cycling safety. The vast majority of drivers are safe and careful, but probably one out of every ten is either impaired, distracted, drowsy, too old, or otherwise poses a danger to cyclists and others. Realistically, none of them is going to stop drinking/texting /sleeping at the wheel because the guy that killed Mr. Holden got a few months in jail or got his license revoked.

The carnage will continue as long as we cyclists choose to put ourselves in the same vicinity as large motor vehicles traveling at high speeds. This is not to blame cyclists, but because of the vast differences in size and velocity, it's a matter of physics and odds that collisions are going to occur, with bad results for us. A more fruitful discussion might be about improving transportation infrastructure to minimize the risk: Bike lanes separated from traffic by space and/or barriers. Trails. More bike-friendly roads (local traffic only). Reduced on-street parking. Driverless cars. There is no single solution, but the discussion needs to be had.

Harsher penalties for negligent drivers might be part of this mix, but a very small part. In the meantime, we cyclists would do well to stick to low-speed, low-traffic residential-type roads. It may slow down our commute, but at least we'll improve our chances of survival.

[Kolo Jezdec]

@Publius I do not disagree with most of what you posted, and where we disagree is topic for debate, not policy. I agree that I am putting myself at risk when I ride. I have been riding since I was 14, almost 50 years ago.

I have never been in a collision with a motor vehicle. I credit luck, and riding as if my safety is up to me.

Drunk driving can be prevented. Using a phone while driving can be prevented. Driving while old can be prevented. Nodding off while driving can be prevented. Speeding can be prevented. The technology exists. None of these involve a single solution, but the discussion needs to be had. Perhaps if more citizens experienced harsher consequences for their negligent driving habits, the driving community would be open to technological solutions.

The solution does not lie solely in separating motorized vehicles from human propelled vehicles.

[john]

"Falling asleep while driving is not an accident. It is clearly and easily preventable."

This is a non sequitur. Nearly everything that ever happens that we comfortably call "an accident" was clearly and easily preventable. Falling off a ladder. Slipping in the bathtub. Tripping over a bump in the sidewalk. Shooting someone by mistake on a hunting trip. Parachutes that don't open while skydiving.

As Publius points out, "getting hit by a car while on a bicycle" is also easily clearly and preventable.

So I return to my original point, which was that this guy was (as best as I can tell) doing something within the same range of negligence and / or recklessness that all but the most righteous of us have from time to time descended to, and I am reluctant to point a finger that could so easily one day be pointed at me.

[Joe F]

John I hope you realize that you do have the power to choose not to answer the phone, drink to much or stay up to late. If not you could take life of someone you don't know, your own life or a family member or friends life just as Freeman took Holden's life.

[john]

Though I think you were aiming for ridicule, you've nicely made my point for me. It may be that the only truly effective way to eliminate exposure to one's own humdrum, yet life changing, cockups is to stay inside, fully-rested and sober. But no one does that, of course, and once in a great while - not often, but sometimes - even the best-intentioned and most sensible of us living our ordinary lives *still* may make a mistake, with real consequences, that seem profoundly out of proportion to the poor judgment we exercised.

[washcycle]

I think there are several separate issues and they're being combined in a way that is contrary to the way we carry out justice.

1. Did this driver commit a crime - something more than a traffic violation? I think they did. I think this is more than just negligence because at some point this driver made a choice to keep driving even though they knew they were drowsy and having trouble staying awake. Everybody here knows the feeling of trying to stay awake. It's not sudden and surprising. So they had a decision and chose to take a risk, just like the girl who chose not to clear the ice off her windshield.

This differs from simple negligence. In a case of simple negligence, (for example, a novice driver who is turning out of a parking lot into traffic and fails to look to their right and then hits a pedestrian) there is no such choice. They did a bad job of driving, but there was no premeditated element to it.

So, the first question is just, do you think this person committed a crime? What the punishment for that crime is should not weigh on your answer to that (as anyone who has had jury duty should know).

2. Does the current crime of CNM extend to negligence of this level? I'm not sure what the authors of the law intended or how the courts should interpret it - which is why I'd like to see the state prosecute it - but if not, then there outta be a law, as they say.

3. What should the penalty for such a crime be? I don't know. That's why we let judges do the sentencing. Probably not the same thing in every case, and judges should have a big toolkit to pull from. Maybe community service. Maybe night jail. Maybe prison. It all depends. But like I said, it has no impact on how guilty the driver is.

this guy was (as best as I can tell) doing something within the same range of negligence and / or recklessness that all but the most righteous of us have from time to time descended to, and I am reluctant to point a finger that could so easily one day be pointed at me.

No one's asking you to judge anyone, as it turns out. But, we are asking prosecutors to judge people and decide if they need to be prosecuted or not - it's kind of their job. And we can't have them letting off everybody who kills someone doing something that they can see themselves doing - or have done in their more carefree, youthful days (like speeding, or drag racing, or getting behind the wheel drunk, or firing a gun into the air, etc...). That - rewriting the law - is not their job. And there's no way to talk about the law, and the role of prosecutors without discussing whether or not this driver is guilty of a crime. So if you don't want to point the finger at anyone, then I don't really know what you have to add to this conversation.

even the best-intentioned and most sensible of us living our ordinary lives *still* may make a mistake, with real consequences, that seem profoundly out of proportion to the poor judgment we exercised.

And when we do, we face consequences for that that are in proportion to the negligence we displayed and the damage that was caused? Is it fair that one drunk driver makes it home without so much as a ticket and another goes to prison for manslaughter? Possibly not. But what's the alternative?

[john]

I'm not complaining about being asked to judge - I'm not a prosecutor and I'm not sitting on a jury - but rather simply explaining my own reluctance to reflexively condemn this person for having fallen asleep at the wheel. Prosecutors often miss the boat in motorist/cyclist cases but I don't know that they did here. They are not *always* wrong.

I *am* BTW willing to reflexively condemn the 3d or 2d strike drunk, or the driver who "for kicks" drives too close to a cyclist and startles them onto the gravel shoulder, or the person who passes at high speed on a hill over double yellow lines and has to swerve back into a cyclist to save himself. People who drive like that should be kept off the road and punished. But this is not one of those cases (and continuing to raise those cases to explain this one, in my mind rather misses the point).

"So if you don't want to point the finger at anyone, then I don't really know what you have to add to this conversation" - I read that as, if you don't agree with those who *are* willing to point fingers, then shut up. I guess that's one way to end a discussion!

[john]

I do incidentally appreciate your breaking out the different issues here - it helps think through what the prosecutors might've been thinking when they declined to prosecute. Maybe they figured, it'd be too hard to get a conviction and why make a test case out of someone who (may be) sympathetic. The office hasn't got unlimited resources after all. Different decisional points are subject to different commentary.

[Joe F]

As I have in other discussions, I refer to video of how the Dutch developed their bicycle infrastructure. One of the main factors was: "an intolerable number of traffic deaths".

https://www.youtube.com/watch?v=XuBdf9jYj7o at: 4:48, 2:12, 5:25

Until we in the USA actually put more value on life than the right to make a mistake in a car, these senseless deaths will continue.

[washcycle]

rather simply explaining my own reluctance to reflexively condemn this person for having fallen asleep at the wheel.

Is there someone doing that here? I'm not, nor am I asking anyone to do that. But, once you've given the matter the proper amount of sober reflection, then are you willing to say "yeah, they committed a misdemeanor."? Because after I thought about it, I was.

They are not *always* wrong.

No one has said they are. But they do often show a great reluctance to prosecute drivers if they aren't DWI/DUI or hit and run.

I read that as, if you don't agree with those who *are* willing to point fingers, then shut up.

I'm fine with disagreeing, but I just think people should be willing to make a call one way or another. If you think there was no crime here, then that is something to add. Or if you think there isn't enough evidence of a crime or that the law currently doesn't allow for this to be prosecuted, that's something to add. But simple persoanl unwillingness to make a call isn't particularly interesting. Maybe at the blog "What is john reluctant to do?", but not here.

Maybe they figured, it'd be too hard to get a conviction and why make a test case out of someone who (may be) sympathetic.

Maybe, but that isn't what they said. I'll give them the benefit of the doubt and assume that they aren't lying to us.

[Joe F]

Six out of ten fatal crash victims in DC, Maryland, and Virginia are single vehicle crashes.

People driving badly kill themselves as much as others if not more. Why don't these facts make a difference?

http://www.fox5dc.com/news/44889165-story

http://www.alexandrianews.org/single-vehicle-crashes-and-roadway-departure-crashes-major-factors-in-traffic-fatalities-in-virginia-maryland-and-the-district/

[Mike]

@john: so, basically, it's not that big a deal that someone died, because you see that you might have also killed him? does that really not seem immoral to you?

[john]

"It's not that big a deal that someone died, because you see that you might have also killed him" - I don't understand this comment. This was a tragedy, a horror. The question for me is, does it mitigate the horror to prosecute the driver for his role in it. The prosecutors say no; everyone here seems to say yes. I'm trying to provide some human context for what many here believe to be a heartless - maybe itself criminal - decision.

So too in that regard I disagree that "simple personal unwillingness to make a call isn't particularly interesting." I consider myself a pretty average person (other than maybe putting more miles on bikes than on cars in a year) - just the kind of person who might wind up on a jury sitting in judgment of this guy. I also (try to) be honest about my own foibles. So it seems entirely relevant to the discussion that it's easy for me to imagine myself in a circumstance like that of this driver, because a jury made up of people like me aren't going to convict the guy.

Maybe I'm, I dunno, below average and everyone is more scrupulously, ceaselessly careful than me. God help me then (and everyone around me). It's either that or I'm a bit more honest than most about where I might screw things up.

*I* think those are interesting issues, even if I haven't articulated them as such to this point. But I don't seem to be gaining any traction, so I guess I'm done.

[washcycle]

Maybe I'm, I dunno, below average and everyone is more scrupulously, ceaselessly careful than me.

Not ceaselessly careful, but I don't drive when I'm drowsy. If you do, then you need to stop. Being awake is the absolute least that a driver can be expected to do.

And while I have done boneheaded (and illegal) things in the past, it would not prevent me from finding someone guilty if they were being charged with an identical boneheaded (and illegal) thing, because that's the job of being on a jury.

[DE]

I served on a jury yesterday, and that's exactly what we did--awarded $ for a rear-ending that caused injury, even though I've rear-ended someone before.

If you cause damage, suffering, or harm through negligence, you are supposed to be held accountable for your actions. You may not be enthusiastic about being held accountable for your own actions--that's natural--but I don't think that should be the basis for not charging drivers who harm pedestrians or cyclists. Yet it seems that that logic is often used: "I would feel terrible if I were driving and killed a cyclist, so let's not prosecute them." Could be just me, but it doesn't seem like that logic is used for vehicle on vehicle action.

[john]

Well, the job on this jury wouldn't be to decide simply "whether" ("is this the fellow who pulled the trigger") but "how much", i.e., was this guy's conduct so heedless that (in the words of the statute) he "should have been aware but failed to perceive that [his] or [her] manner of driving created a substantial and unjustifiable risk to human life" - and further was not "simply careless". While driving while drowsy may be boneheaded, whether or not it is also illegal is the very question you'd be deciding (and you don't get to decide beforehand). And you as well as the other jurors would necessarily be bringing your own behavior and standards of conduct to the table there.

[washcycle]

And you as well as the other jurors would necessarily be bringing your own behavior and standards of conduct to the table there.

If your point is that jurors are deeply flawed, I agree. If your point is that this is by design, I disagree.

They are supposed to decide matters of law based on the law and the facts, not whether they have behaved in that way. To the extent that they do, it is a bug, not a feature.

[john]

In negligence cases it's generally a feature. Well, more specifically, jurors are supposed to apply "community standards" or the "standard of the reasonable person" to the question - but on a 12 or 6 person jury that standard is not going to be meaningfully different than the collective personal views of the individual jurors.

There's a lot of discussion here (an article I picked more or less at random):

http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3362&context=cklawreview

[DE]

Some juries do decide penalties (and sentences), btw. This one did. I don't know how many jurisdictions do that.

[john]

Was it a civil negligence case, one person suing another (or - one insurance company suing another)? In those cases the jury typically will calculate and award the damages along with liability.

[washcycle]

That deals with civil law, but in this case the negligence is not in question. What is in question was whether it was "criminally" negligent.

But, a responsible juror will ignore they're own poor choices (or at least recognize them as such) and not use them to justify the poor choices of others.

If you've driven in a dangerous way and been lucky enough to not kill anyone, I guess we should be thankful for that. But I'd suggest perhaps not driving dangerously - even if that means not driving at all.

You say you've driven when tired. I say don't do that anymore.

You say you've driven when distracted. I say don't do that anymore.

And certainly don't use your criminally negligent driving as a way to excuse the criminally negligent driving of others.

[john]

You're assuming, as a given, the very question that the jury would be called upon to answer.

[washcycle]

No. I'm not assuming anyhthing. He already pleaded guilty to negligent driving.

[john]

... leaving it up to a jury to decide whether what he did was so careless as to be criminal. You assume the conclusion when you admonish me not to use my own "criminally negligent driving while tired" to excuse his criminally negligent driving while tired. That's the question, not the answer.

[washcycle]

you admonish me not to use my own "criminally negligent driving while tired"...

The part that is in quotes is not a quote.

[john]

Fair enough, and I apologize. I think conversations that lob quotes back against one another are a little unfriendly and I was trying to soften the tone a bit, so I paraphrased. I should have been clearer what I was doing.

I would amend my comment then to say, "You assume the conclusion when you admonish me not to use my own 'criminally negligent driving' of - apparently - driving when tired to excuse his criminally negligent driving when tired."

[john]

(And to be clear - my observation about unfriendly conversations wasn't a dig at you, but at me. I don't like how it makes me sound. I didn't fix it in a smart way.)

[washcycle]

Well, like I said, there are multiple questions here, one of which is "is what he did criminally negligent manslaughter?"

If it is, your behavior and whether or not this could be you is irrelevant.

If it isn't, your behavior is still irrelevant.

You should instead be making the argument that driving while sleepy is not CNM as defined by the law. Instead, you keep talking about how you'd feel, or how juries would bring their own feelings, etc... But the argument has nothing to do with what you have or have not done in the past.

If you think it is CNM and excuse him because of empathy, that's wrong. If you don't think it's CNM and defend him, that's right. Your empathy should not enter into it. I get that people's empathy DOES enter into it, but I'm talking about how it should be.

That's my point. One should not use their own criminally negligent driving to excuse the criminally negligent driving of others.

[DE]

Yes, this one was a civil case.

[john]

Jurors should not use their own criminally negligent behavior to excuse that of others. But if they conclude that the behavior on trial wasn't criminal, then by definition they aren't doing that. And you don't know until you get there.

[washcycle]

True, but f they conclude that the behavior on trial wasn't criminal then their behavior is irrelevant. We don't know what a jury will say until we get there, and we aren't going to get there unless prosecutors agree that driving while asleep is criminally negligent. I think it is, so that's why I'm complaining about it.

I'm not complaining out of reflex or a lack of empathy for Freeman's situation or a lack of thankfulness for mine or out of the hypocritical belief that I could never kill someone due to a driving error - as seemed to be implied in the original post.

I think that driving while asleep should qualify as CNM, and I think prosecutors should treat it as such until the courts rule against them.

[Mike]

@john: the point of prosecuting people for this sort of thing is to make it very clear to people that it's a problem. if you really were unaware that falling asleep when driving is a reason to pull of the road and stop driving, then I'd like you to get the message by reading a front page story about someone being punished for doing that thing. I'd like you to have a real fear that if you drive while sleeping you'll suffer some significant penalty, so that you reconsider doing so. I do not want you to just shrug and say it's a shame and keep on doing the same thing because it's just something people do.

[john]

Consider the effect on this undertaking if the prosecutors take the law that they've got, push forward a case that they don't like, and for want of proof "beyond a reasonable doubt", lose it. Now sleepy driving is officially not criminal.

A legislature heads down a bumpy road when it creates a crime, doesn't really specify what activity qualifies as that crime, and leaves it to the public to figure it out as prosecutions blossom - or wither. If it's a good idea to criminalize sleepy driving, then pass a law to do that.

Meanwhile if you want to punish people who drive while sleepy, impose huge fines and an extended loss of driving privileges for infractions, which would be written as a ticket. Clearer standards, easier standard of proof. And to drive the point home, *impose those fines whether or not the driver actually hurts anyone*.

"I might kill someone" is, I think, to most sensible people, a meaningful deterrent to unsafe driving. "I might kill someone and *then* have to go to jail" is more of a deterrent, but I question, incrementally, how much more really. To change behavior on a broad basis, make the punishment certain, and common, and un-tethered to a bad outcome in particular case.

[washcycle]

This is not a case of insufficient evidence (which is a reasonable justification for not prosecuting). They said it was "not nearly enough negligence to press charges."

I would love a more explicit law, but that's not what we have. I suspect lawmakers had a reason for writing it the way they did, but as I recall the 2009 Baldwin crash on the Bay Bridge was one reason this law was passed.

Even before the CNM law was passed, drowsy driving had been successfully prosecuted in Maryland.

"Drowsy drivers have been successfully convicted of vehicular homicide or manslaughter under negligence statutes in Maryland, California, Colorado, Florida, Massachusetts, Michigan, New Jersey, Pennsylvania and Virginia. In 2005, a Maryland appeals court affirmed a drowsy driver's gross negligence manslaughter conviction, concluding that "the deliberate failure of a driver to heed clear warning signs of drowsiness is evidence of a reckless disregard for human life."

Are you bothered by the vagueness of this law?

Frankly, I can't tell what the hell it is you want - except that Freeman not go to jail.

Should driving while drowsy be illegal? A misdemeanor? A fine? What?

Should Freeman be charged with such a crime it there were one? Does the current law include drowsy driving?

What? What is it you're arguing? I feel like you're just being contrary at this point for the sake of contrary.

I think it's pretty clear what I want, but I still have no idea what you want. Do you like the current law? Do you like the decision of the prosecutor? Do you just not want anyone to go to jail ever? What? What? What?

I do want to punish people who fall asleep behind the wheel - as has been done in the past. I can't imagine how they will get caught if not in a crash, but if they were, they should also be ticketed.

Punishments have always been tethered to bad outcomes. Shooting someone who lives is not as serious a crime as if they die. Manslaughter, murder etc...are more serious crimes than property damage. That probably goes back to common law. Do you want to throw all of that out?

[Joe F]

What will happen if falling asleep behind the wheel and killings someone is always considered involuntary manslaughter? Less people will DIE.

http://www.love4nicki.com/id42.html

[john]

"Not nearly enough negligence to press charges" precisely describes a lack of evidence. They are saying, the evidence that they do have is (in their estimation) insufficient to meet the statutory standard. I don't know what they don't have, or what they'd rather have, but what they said in effect is, "we don't believe we can prove this case under this law". If you don't think you can prove something, it means you don't believe enough in your evidence.

To answer your question directly, I do not believe that every case of falling asleep at the wheel is a criminally negligent act. I don't know the details here but am willing to accept the prosecutor's decision. I'd feel differently in the case of road rage or recidivist drunken driving (to name two).

Otherwise. I'm not trying to be contrary and I'm sorry if you think I'm trolling. I'm saying, among other things, that a non-specific criminal law is a poor tool for broadly changing specific behaviors, particularly when the law is tied only to outcomes that result in death. Punishments in those cases will be too uncommon (because most risky behavior does not actually result in death), and (because of the criminal standard of proof) may be too hard to prove.

I am also saying that there is a potential downside to the criminal tool, which is that if the prosecutors lose, then they may be deprived of the option in similar future cases. At the very least it will increase whatever reluctance they now display.

More generally, if the problem with the behavior is "risk", then punish the risky behavior whether or not it hurts anyone. (Make it worse if it does, but don't wait for that.) Make the punishment common, and certain, and quick, and easy to administer. I guess I agree that drowsy driving is going to be hard to track, short of an accident. I don't know what the law is for drowsy driving accidents that don't involve manslaughter, but, raise fines; suspend licenses.

[washcycle]

I think that saying there is not enough negligence is very different from saying there is not enough evidence. In no world are those two words synonyms, and if they had meant there was not enough evidence I have to assume they would have said that.

They said nothing of the sort about not being able to prove this case. What they said was that there was no case and no crime.

I'm interested in which cases of falling asleep while driving would be CNM and which would not. What would be the dividing line, or what is an example of each?

If the risk of prosecuting such a case is the loss of the tool in future similar cases, why won't that risk exist in those same future similar cases? And why wouldn't that risk be justification for not prosecuting then?

Rather than save this law for some rainy day, let's see what it does - and if insufficient, we can then go and ask the legislature to pass one we need.

Sure, we should punish risky behavior whenever we can. Right now we can. So why not? Because we didn't in lesser cases in the past? Is there any evidence that there are known cases of drowsy driving in which someone didn't get hurt, where evidence exists, and there was no penalty?

But again, you continue to not really say anything here - nothing that makes sense at least.

Falling asleep could be illegal at some times and it might not be at others, but your unsure.

Broadly written laws are bad, event though the laws that deal with road rage and drunken driving, which are good, are equally broad.

You hypothesize that the prosecutors have a secret reason for doing what they did, one that differs from what they told us. But even though you think they might be lying to us you're willing to accept their decision anyway.

We should punish risk taking drivers, but for some reason not this risk taking driver, because ???? We should suspend the license and raise fines for those involved in drowsy driving accidents that don't involve manslaughter, but we don't need more punishment, beyond points and fines for other violations, for this driver who did kill someone.

You can see why I don't really understand at all what you believe, right?

[John]

Criminal negligence is a higher (worse) kind of negligence than ordinary negligence, and having proof of the latter, even quite plainly, does not get you the former. When prosecutors say there wasn't a crime here, they are saying that the facts, which include negligence, do not give them evidence of a crime. They are also saying what I am saying, which is that not every case of drowsy driving is ipso facto a crime. There are gradations. Indeed if there were not gradations then the law would just say, “drowsy driving is a crime”, just like “theft is a crime”.

A good criminal case would be like one described in the 2005 Maryland case, where a sleepy driver near the end of a 500 mile drive drove off the road once, almost hit an overpass another time, and ignored repeated pleas from his passengers to surrender the wheel. Then he crashed. Also a candidate would be the Maryland case itself, where the driver admitted in a statement that he had felt drowsy and didn't think he should be driving but thought he could make it home, and after a brief nap continued despite still “nodding off a few times”.

http://caselaw.findlaw.com/md-court-of-special-appeals/1426819.html

In that case the driver was sentenced to 8 years in prison, with all but 30 days suspended. He also paid a fine of $355. That does not seem out of line to me, as criminal punishment, in that case. He was also presumably subject to civil claims by the victim’s family, as well as traffic fines and license suspension.

We don't know what Freeman told police, but if he kept his mouth shut then all the police and prosecutor have is the unadorned fact that he fell asleep. It took two months for that fact to emerge – perhaps he was indeed unforthcoming. And if drowsy driving is not inherently criminal, then the fact of it alone is insufficient evidence to make it a crime. (The police did not use those words, but the meaning is the same. “There was no crime” is the same as, “we have no / not enough evidence of a crime.” There is nothing secret or hidden about it - it's the same, like “7:45” is the same as “quarter to eight”.)

[washcycle]

When prosecutors say there wasn't a crime here, they are saying that the facts, which include negligence, do not give them evidence of a crime.

Right, because they don't think this is a crime, not because they need more witnesses or something. The story as they believe it happened is not a crime, according to them

They are also saying what I am saying, which is that not every case of drowsy driving is ipso facto a crime.

And I disagree with that.

It took two months for that fact to emerge

Well, it took two months for that to become public. That's not the same thing.

“There was no crime” is the same as, “we have no / not enough evidence of a crime.”

No, one is a statement that the prosecutors believe that no crime occurred and that no more evidence is needed. The other is only a statement that they are either unsure, due to a lack of evidence, of whether a crime occurred or believe that one did occur, but can't prove it.

[Joe F]

He fell asleep while driving. That is incredibly irresponsible.
Criminal? Yes it should be.

As he had no prior driving issues he should have been charged with involuntary manslaughter and have the sentence suspended.

When I have problems staying awake while driving I pull over and take a short nap. Ten even 5 minutes is all it takes to reset the body.

[John]

Maybe we're talking past each other? I think that in a different case, with aggravating circumstances or even a self-incriminating statement as in those other cases, prosecutors here might well have gone forward. For me then, "we haven't got enough evidence to support a crime here" is the same as "there was no crime here". But if you're skeptical of the prosecutors altogether then "there's no crime here" is more of a statement of philosophy and, as such, different than "we lack evidence".

[Joe F]

What is clear is that currently, falling asleep while driving is not consider a criminal act. Killing with a car while drunk or texting is.

In Maryland is an option to try and charge the driver with involuntary manslaughter but either the law is too weak or the attorney does not care about people falling asleep while driving and killing a person.

What we don't know is at what time they learned the driver fell asleep. If it was too late for the driver to be charged, they really messed up on the investigation.

For the reason that if a person falls asleep while driving, they WILL cause a crash (it might be a single car crash), this issue needs to be treated far more seriously than it is.

Yes, I am skeptical that they system is currently set up to favor the driver. They often get off lightly when they kill someone while not maintaining control of their vehicle. A driver is to maintain control of their vehicle at all times, not fall asleep.

[SJE]

I think that its wrong to focus solely on "falling asleep." This case is not a simple one-off error, but just part of a long series of errors that we must deter.

In this case,
1. The driver was routinely doing a very long drive in the early morning, a situation that makes him very likely to be tired. He created the risk.
2. The driver has (IIRC) multiple recent driving infractions, suggesting he is a bad driver or scofflaw.

Negligence is usually judged not on the single error, but on the totality of the facts surrounding it, such as other warnings, e.g. the 2005 case, the driver was warned by passengers. Another thing is whether you created the risk through your actions/inactions. Its not illegal to drive on the snow, but if you are a bad driver on snow and drive too fast and get in an accident, you created the risk. Its not illegal to own a gun, but you are negligent if you leave it around the house loaded, with an unattended toddler.

So a habitual bad driver puts himself in a situation where he is more likely to cause an accident, and he kills someone. This is the sort of situation that the law must deter. If not through jail, at the minimum a loss of driving license for a very long time.

[washcycle]

But if you're skeptical of the prosecutors altogether then "there's no crime here" is more of a statement of philosophy and, as such, different than "we lack evidence".

I'm not skeptical of them, I'm taking them at their word. They said that there was "Not nearly enough negligence to press charges."

The also said that ""We have decided the incident involving Ricardo Freeman did not rise to the level of criminal gross negligence. The evidence and investigation by the Montgomery County police has made the Office of the State's Attorney conclude that no criminal charges are warranted in this matter."

They called it ""a horrible, tragic accident."

It's pretty clear to me that the reason there are no charges is that they don't believe it was a crime, not that there wasn't enough evidence.

In other words, to them this is like finding a dead body and then realizing it was someone who died when they fell off the roof. It was not liking finding a dead body with three bullet holes in its back and not being able to prove that their prime suspect pulled the trigger.

And I disagree that this wasn't a crime. If the standard is that proof of some aggravating circumstances - like driving off the road a few moments earlier or people begging them to stop - is needed, then the standard is too high.

We need to start treating drowsy driving as a crime. Perhaps not as bad as drunk driving and maybe not even as bad as distracted driving, but as a crime nonetheless. And we need to stigmatize it as such so that people don't do it as much as they do it now.

Perhaps we need a law like the one proposed in New York "Driving while drowsy is defined as operating any motor vehicle, motorcycle, or any other vehicle propelled by any power other than muscular power, while his or her ability to drive is impaired by fatigue. The second offense, “vehicular homicide caused by driving while ability impaired by fatigue,” is defined as committing the offense of criminally negligent homicide while operating a motor vehicle in a manner described above. The first offense is a class A misdemeanor and the second is a class E felony."

[John]

The dead body analogy only works if there was a potential crime still lurking in the facts, as there was here. Like, a person with him on the roof, with whom he'd been arguing. Did he fall or was he pushed? The argument between them (like falling asleep) hints at a crime, but if after two months of investigating the prosecutors find no other evidence to suggest a crime, they will close the case. They may say "we have no evidence of a crime" or "there was no crime", but it won't matter which.

[Joe F]

Good article on driver responsibility in the US vs Holland.

Which is right? "It depends on how much one values human life..."

http://www.economist.com/blogs/democracyinamerica/2013/11/cycling-v-cars

[washcycle]

The analogy works because it's about what they mean when they say not a crime and not enough evidence (the latter of which I feel I need to reiterate, they didn't say).

But fine, in one case there is someone on the roof who knocks the other off by accidentally knocking them with a ladder. In the other case they pushed them off, but there isn't enough evidence to convict. In the first they would say there wasn't a crime and in the other they'd say there wasn't enough evidence.

It does, however matter which they say if you think that knocking someone off by accident should be a crime. Or, in this case if you think that driving drowsy should be a crime.

One means that they will never prosecute someone for driving drowsy, the other means that they would in the exact same situation, if they just had more evidence to prove it.

[SJE]

I'll second Washcycle here on whether there was enough evidence of a crime: it sounds as if they thought that such actions were not sufficient to be criminally negligent. That, IMO, is a problem. Its part of the same thinking that any car/bike collision is an "accident" and unpreventable through the law.