Prosecuting negligent driving is tough; time for new laws?

Advocates in Maryland are pushing for a new kind of mid-level criminal charge for negligently killing people with motor vehicles. DC should consider comparable measures after a some failed prosecutions of drivers demonstrate how hard it is to charge drivers who act dangerously.

If you have stories about problems with enforcement to protect people walking and biking, sign up to testify at a DC Council hearing on February 4.

In November 2009, 35-year-old Kevin Bucy from Mount Airy, MD hit Richard Greenstein and Rhoda Ratner, both in their 70s, while backing into a parking space near the Mall and killed Greenstein. Prosecutors felt that Bucy deserved being charged with “negligent homicide,” which carries a sentence of up to 5 years in prison. But a jury acquitted Bucy.

According to news reports, it wasn’t a simple case. Prosecutors showed evidence from dents on the van and the location of blood in the crosswalk that they say prove Bucy wasn’t just backing up very slowly, as he said. But defense attorneys attacked the credibility of the main eyewitness because Bucy had taken a parking space he was trying for as well.

Note: Greenstein’s son posted a comment disputing some of the facts of that case as reported in the press.

In another case we reported a year ago, a man on a cell phone hit and killed an elderly man at the intersection of Connecticut and Nebraska. Prosecutors tried to bring charges there as well, but while they could prove the man was on his phone just before the crash, they couldn’t definitively demonstrate he was on the phone at that very moment, since there was no time stamp down to the second, and the man married the person on the other end of the call, making her unavailable to testify. Again despite physical evidence, the grand jury refused to bring an indictment.

There are at least two difficulties in pressing charges against negligent drivers. First of all, it’s a lot harder to prove this than leaving the scene (hit-and-run) or drunk driving. Rightly, the state needs strong evidence to put someone in jail, but such evidence isn’t as readily available. Leaving the scene of a crash is more straightforward to prove; the car was involved in the crash, but now it’s not, ergo the driver fled.

For drunk driving, police regularly take breathalyzer tests at the scenes of crashes today, which provides clear evidence for or against intoxication. There isn’t a similar test for whether a cell phone had just been used, though police also could do more to look into phone usage right away, such as asking witnesses; pedestrian advocates say that currently, police don’t take as much care to look for evidence of phone-based impairment as they do for the alcoholic variety.

Second, while juries tend to believe even somewhat flimsy evidence in many drug and gun cases, many juries are reluctant to convict people for driving offenses, perhaps because they more readily can put themselves in the shoes of the driver.

A prosecutor for the DC Office of the Attorney General told me that they often have trouble getting juries to convict even on drunk driving, for which we have decades of public campaigns to curb. Charges carrying more than a year in prison involve a jury trial, she said, while lesser charges can be handled by a judge who is more likely to apply the law impartially.

It still took considerable changes to laws in various states to make it easy enough to prosecute drunk driving. It’s now time to consider changing laws to give prosecutors reasonable tools against negligent driving. Maybe drivers like Bucy shouldn’t face 5 years in jail, which is a pretty severe punishment, and while not as severe as what a dead pedestrian or cyclist or their families face, it’s a lot. But neither should drivers who kill people just walk away with a $25 ticket.

New York recently passed two laws to help with this. Hayley and Diego’s Law created a “careless driving” charge whose punishment is a fine of up to $750, up to 15 days in jail, suspension of the license of up to 6 months, and a requirement to complete a driver education course. Elle’s Law says that anyone driving who commits a traffic violation and causes serious physical injury to someone else will have their license suspended for 6 months.

In Maryland, advocates are pushing for a more serious intermediate charge of “manslaughter by motor vehicle - criminal negligence.” Michael Dresser explains, “That charge, which would apply when a sober driver kills someone through gross negligence not related to intoxication, would be a serious misdemeanor carrying a potential term of three years in prison and a $5,000 fine,” compared to the current “manslaughter by motor vehicle” carrying up to 10 years in prison and the same fine.

Dresser suggests that instead of pushing for what’s still a high penalty against negligent drivers who kill people, Maryland ought to create a charge of one year that applies even if someone is just injured. After all, there’s not much difference between a driver’s behavior that results in a serious injury or an actual death, other than luck. Charging more people with lesser offenses is a better way to curb dangerous behavior.

Having to defend himself against a very serious criminal charge was probably something of a punishment for Bucy, but if prosecutors could instead have filed one of these lesser charges, perhaps he would have faced some consequences for his negligence. Most of all, perhaps that story, reported in the media, would have served as a greater warning to other people to exercise care when operating very large metal vehicles.

The Council hearing is Friday, February 4, 12 noon at the Wilson Building, 1350 Pennsylvania Avenue, room 412. From the notice:

Those who wish to testify should contact Ms. Jessica Jacobs, Legislative Counsel, at (202) 724-8038, by fax at (202) 724-6664, or via e-mail at jjacobs@dccouncil.us and provide their name, address, telephone number, organizational affiliation and title (if any) by close of business Wednesday, February 2, 2011.

Persons wishing to testify are encouraged, but not required, to submit 15 copies of written testimony. If submitted by the close of business on Wednesday, February 2, 2011 the testimony will be distributed to Councilmembers before the hearing. Witnesses should limit their testimony to five minutes; less time will be allowed if there are a large number of witnesses.

Also, if you have stories about either the police not taking negligent driving seriously or prosecutors being unable to get convictions, send them to us at info@ggwash.org. We’ll be publishing a few that we’re aware of in the near future.