I guess I don’t see it as so simple. The best drivers can avoid situations and accidents under conditions that lesser drivers will not.
Perfect example is the catch all “Driving to fast for conditions”. How fast is to fast when you hit an entire sheet of ice? You are indeed at fault because you were driving to fast for conditions. However no one drives 5 MPH on an apparently clear road in the middle of the day.
Again not condoning texting while driving. Again the individual should be punished. However don’t we all, almost on a daily basis, let out attention lapse momentarily while driving? Messing with the radio, talking on the cell phone, makeup, hair, looking at a billboard or hot chick on the side walk. Then blam there’s a bike.
Fortunately for most of us those momentary lapses never turn into anything. Others are not so “lucky”.
These “Lapses” of attention range from the mundane to the negligent I suppose. Certainly getting up from the drivers seat in the minivan to watch a DVD in teh back and letting teh vehicle kareen off the side of the road would be considerd reckless. But in most situations the death is caused under much less extreme and “grey” conditions.
I believe that killing someone recklessly without intension is called manslaughter. Or at least it was in Illinois when I took my criminal law undergrad class. I understand that the DA can only charge the person with what the legislature gives him reign to. But I’m sure their is more that the DA can do to then give the kid a ticket and send him to bed without dinner.
Definitions of Manslaughter on the Web: The unlawful killing of another without intent to kill; either voluntary (upon a sudden impulse); or involuntary
Manslaughter or vehicular homicide would require a showing of recklessness. While certainly careless or even negligent, the kid’s conduct may or may not rise to the level of “reckless.” Besides, the legal standard for “recklessness” can be very difficult to prove. So, really, the only felony statute they could get him with is criminally negligent homicide.
However, what I think what some people here are failing to consider may be the kid’s prior record. If there’s no prior criminal record, then do we really believe a jury would convict him of a felony under the criminally negligent homicide law? Highly unlikely. Now, if he had 15 convictions for reckless driving, you might get a jury to convict on the felony. Why would the prosecutor waste time and money prosecuting a felony for which he can’t convict? I don’t mean to sound defeatist, but it’s a reality of the criminal justice system. Prosecutors make deals all the time to ensure at least some conviction for conduct that warrants it.
Again I think you fail to appreciate the fundamental difference between something you can choose not to do, and something that happens without choice. All of the things you have described are selfish and negligent actions, and should be punished as such if they result in accident, particularly in the loss of life
The best drivers may be able to avoid things, and thus get themselves out of trouble, but that doesn’t make their actions any less negligent, it only means their less likely to be caught for a crime (and the law can only punish after a crime, not a potential crime - i think)
Driving to fast for conditions is a problem, certainly, but if you’re out in icy conditions you can choose to drive with an excess of care (indeed at 5mph) or you can choose not to. If you choose not to then you deserve to be punished to the full extent of the law in the event you cause an accident because your actions are negligent. The fact that “no one drives 5mph on an apparently clear road” is not an acceptable excuse, you wouldn’t say that it was acceptable for a gang member to join in the beating of a small boy simply because “everyone else was doing it”.
There’s nothing greay here. If choice of action can be proved, and one choice can be shown to be significantly likely to prevent the accident, then the other choice must be negligence. And - as I’ve said - if you’re prepared to be negligent you should be prepared to accept a high level of punishment for your actions.
I have to agree with JMuric on the risk of riding, having ridden in numerous states for the last twenty years. Regardless of what you do, you are at risk each and every ride you go out the door.
I took a spill this summer going into a right hand turn. An oncoming pickup truck turning left into the same road, not only saw me, not only new I was just starting into the intersection, not only knew I was ahead of him and had the right of way, sped up to beat me into the intersection. I had to take the turn tighter than anticipated as we would have occupied the same space at the same time, a definite no-no based on general physics principles. Unfortunately, the reason I was taking the turn wide in the first place was the sand and gravel on the inside track, so poof, down I went. Perfectly clear sunny Sunday afternoon, no other traffic, excellent visibilty, we both had each other in sight for 5-10 seconds. Now, traffic overtaking you, for the duration of a 50-100 mile ride, at speeds, with drivers doing who knows what? It is a big risk.
The second thought is, having been on a jury last year for a murder trial and numerous other charges, when you can’t get a grown man, educated, otherwise intelligent, a husband and father, to understand the word/concept/definition of ATTEMPT as in Attempted Assault, I have much less faith in the judicial system. I think, given this experience with the courts, that prosecutors have very difficult jobs in getting more serious convictions. It seems that the majority of us citizens don’t have what it takes to toe the line, unless apparently it is civil trials involving lawsuits against deep pocket defendents, but I digress. I suspect the appropriate charges and punishments are in most of the state statutes, as in the case of drunk driving cases, they just don’t get applied enough.
I was referring to your non-chalant way to write something to the extend of: “Accidents do happen, nothing we can do about it”
“Swerving all over the road for an extended amount of time while text-messaging” as a “momentary lapsus of concentration” that could happen to anybody and should therefor be acceptable and excusable because we all are human?
That is “humanism ad absurdum” and is fairly common especially in the younger generation who grew up without any understanding of Ethics and Social Responsibility. Just because “everybody else is doing it” and there are no direct laws against it doesn’t make it right.
And “I apologize” for making this personally. You know, I am only human… “Can I go now?”
Whoever brought up manslaughter hit it on the head about the potential punishment ranges…from next to nothing to pretty stiff…from law.com:
vehicular manslaughter
n. the crime of causing the death of a human being due to illegal driving of an automobile, including gross negligence, drunk driving, reckless driving or speeding. Vehicular manslaughter can be charged as a misdemeanor (minor crime with a maximum punishment of a year in county jail or only a fine) or a felony (punishable by a term in state prison) depending on the circumstances. Gross negligence or driving a few miles over the speed limit might be charged as a misdemeanor, but drunk driving resulting in a fatality is most likely treated as a felony. Death of a passenger, including a loved one or friend, can be vehicular manslaughter if due to illegal driving.
“illegal driving” becomes the operative definiton…did they cross a line?? Man, there are too many hairs to split on this one! Either way it isn’t enough to make people more aware of us out there on the roads so:
Further comments on the scope and impact of this anti-social phenomenon should go in the lavender room, since it deals with religion and politics.
In other words, “I get my potshot, but if you want to respond, you have to do it elsewhere.”
The problem is not that of splitting hairs. It is the problem of crossing a line that is undefined by law. The law is more than useless, since there are no moral and ethical standards established in our society that would allow to directly compare text-message driving to driving drunk.
Drinking is always bad, text-messaging is always acceptable and good?
It has been scientifically proven that text-messaging is extraordinary dangerous while driving, but still is social accepted behavior (as is interrupting a meeting by taking a personal call).
“Swerving all over the road for an extended amount of time while text-messaging” as a “momentary lapsus of concentration” that could happen to anybody and should therefor be acceptable and excusable because we all are human?
I smell a boogeyman. Who’s said this is acceptable and excusable behavior? Who’s said that this should escape punishment? Seems to me that the real issue is the severity of the punishment. And I think the fact that this is common behavior is something that can be taken into consideration (and I see how doing that could work both ways).
I think it’s understandable that society is reluctant to severly punish people with stiff prison sentences for conduct that most people do on a routine basis. And I think it’s reasonable for a DA when deciding what crime to charge to consider the fact that most prospective jurors are in a “but for the grace of God there go I” situation.
I consider myself a fairly cautious driver, at least most of the time, but here’s a list of some of the multi-tasking sins I’ve committed while driving: cellphone use (talking, dialing and answering); text messaging; playing with the radio; reading the newspaper while in traffic; changing clothes (I’ve been butt naked); eating; yelling at the kids; grabbing stuff out of the back seat; etc. I consider myself lucky and, upon further reflecting on the risks of these actions, have cut most of them out. Still, I believe the I’m at the greatest risk when there’s a simple, unintentional momentary lapse of concentration. Perhaps that’s because I was aware of the risk when I committed those sins and, accordingly, took at least some minimal mitigating measure.
I’m surprised that you are a defense attorney given your responses. The common portrayal is to defend at all costs.
I agree with your comments, but the legislature will only enact what the majority population will support. If we can’t get better enforcement of the drunk driving statutes, I think there is little hope for improving the driving public’s awareness of, and concern for cyclists.
I am sounding awfully pessimistic here, but I have been defeated by a cold all week with no workouts since Monday. The Grinch is alive and well.
“I think it’s understandable that society is reluctant to punish people with stiff prison sentences for conduct that most people do on a routine basis. And I think it’s reasonable for a DA when deciding what crime to charge to consider the fact that most prospective jurors are in a “but for the grace of God there go I” situation.”
Understandable? Yes. Acceptable? No.
“I consider myself a fairly cautious driver, at least most of the time, but here’s a list of some of the multi-tasking sins I’ve committed while driving: cellphone use (talking, dialing and answering); text messaging; playing with the radio; reading the newspaper while in traffic; changing clothes (I’ve been butt naked); eating; yelling at the kids; grabbing stuff out of the back seat; etc. I consider myself lucky and, upon further reflecting on the risks of these actions, have cut most of them out.”
While it’s good that you’ve cut these things out, had you caused an accident you would certainly have deserved the full extent of punishment available. (I defer to John, above, as to whether you would deserve puniishment for ‘negligent’ or ‘reckless’ driving in each case.
“Still, I believe the I’m at the greatest risk when there’s a simple, unintentional momentary lapse of concentration. Perhaps that’s because I was aware of the risk when I committed those sins and, accordingly, took at least some minimal mitigating measure.”
This may seem a bit harsh, but I think there’s a fair chance you’re deluding yourself here. Almost all the actions you listed required premeditation and complex action. As a result, I think it’s fair to say that you were not in full control of your vehicle for more than the time lost in a “momentary lapse of concentration”.
I think it’s rather frightening that you and others seem to think it’s in any way acceptable for you to engage in any of these actions while in control of a fast moving, potentially explosive lump of metal, plastic and glass.
So take the act of what he was doing out of the equation and just say that he was doing something other then paying attention to driving the car. That would be reckless driving which is what that kid was charged with. Reckless driving falls within the bounds of the definition of Manslaughter and is up to the discretion of the DA to press the charge or file a lesser charge.
If I were living in Douglas County CO I’d be voting for another DA in the next election.
I think it’s rather frightening that you and others seem to think it’s in any way acceptable for you to engage in any of these actions while in control of a fast moving, potentially explosive lump of metal, plastic and glass.
Again, who in this thread has said this is acceptable? From what I’ve read, I think everyone agrees that it is not. There’s just a disagreement over what is the appropriate punishment. Some seem to equate cellphone use while driving, which in California is not in itself against the law, with driving while under the influence, justifying similar penalties. (Indeed, the word “murder” has been used.) I think there’s a difference.
Is it safe for me to assume that all those who are calling for the strictest of sentences are the paradigm of a safe driver, that they have not and do not ever commit any of the “sins” I listed? Because if that is the claim, I think there’s a real credibility issue.
OK, maybe I’m overreacting, but as a cycle commuter I face these dangers daily.
In the UK talking on the cell phone is illegal while driving (though it’s very badly enforced). It is certainly proven to have a significantly detrimental effect on driver reactions, and (as I remember) one not dissimilar to the lower ‘over the limit’ alcohol in the blood levels that consitute drunk driving.
I don’t drive. I consider it unnecessary, I can’t afford it, and I like the extra training I get from cycling to work.
Ditto AlanShearer’s thoughts. When composing my first thoughts for this thread, it crossed my mind the number of stupid little things I did as a young driver, where only by the grace of God, nothing came of it. Everybody is human, everybody has had a lapse of some kind. However, I think we are in agreement that being human alone isn’t an excuse. We all our responsible for our actions and our lapses.
What gets tough is the case where an otherwise decent human has a lapse with a devastating consequence. I would feel sorry for such a person, knowing it wasn’t an intentional act. However, I think we need deterents to modify some of the negative aspects of our human nature, such as the ability to be distracted when operating potentially dangerous machines. Until someone finds a way to rewire the brain, or develops the smart car (far more likely) the current method is the judicial system and jails/prison. Unless the current deterents are employed, I see little hope for change.
When 17 yr olds, freshly minted with driving privileges are text messaging (and who knows for how many times while driving in this case), then obviously they are not concerned about deterents, or have not been suitably impressed about the nature of the deterents.
Is that a lack of bite in the existing deterents (i.e. punishments) or a lack of education/driver training?
I am jumping in here since I live 2 miles from the accident and have been on that road thousands of times. First, the road in question is a 2 lane, 45 MPH area that goes right by a high school, and the speed limit is 25 when the kids are going to or leaving the school. It’s actually a nasty 1/4 mile climb where you are happy to see double digits on your computer as you climb. At the crest of the hill is the entrance to the school on the right and a stop light. The cyclist was through the stop light, about to go on a nice little downhill when he was struck. It looks to me like the kid was coming up the hill, looked up, saw he had a green light, went to Textmessage, swerved, saw the cyclist, slammed on the brakes and struck him. You can still see the skid marks, they are approximately 15-20 ft. so he was probably doing 50+ MPH. If the light had been red, none of this tragedy would have happened. This kid did not try to buzz him or run him off the road, he had no intention of harming anyone.
This kid made a HUGE mistake and he will pay for it the rest of his life. A woman that I swim masters with has daughters that go school with this kid. Apparently he is a good kid, never been in any real trouble and is totally devastated by what he did. Of course, this does not deny what he did. But it makes it harder, for myself at least, to lash out at this teenager. Who out there has not eaten, changed a CD, talked on your cell or done something where you swerved a bit, and as cyclists we should know better! Again, no excuse, but this kid did not set out to kill and apparently is very remorseful and saddened by what he did.
I think it’s a tough call. On one hand you have a kid that made a mistake, a tragic one, but a lack of judgment. On the other you have the death of another human being. I don’t think jail will “teach him a lesson” or serve to punish him more than he will punish himself every day of his life.
"In most cases the death is not intentional. Unless negligence or purpose is proven I have a hard time charging the driver that survives with murder for what, in many cases, boils down to a momentary laps of concentration. "
man·slaugh·ter ( P ) Pronunciation Key (mnslôtr) n.The unlawful killing of one human by another without express or implied intent to do injury.
Assuming the kid admitted he was texting and lapsed concentration, I would argue negligence has been proven. Driving classes teach you to be aware of everyone on the road at all times. No intent to kill, but a death as a direct result of your actions. And its not a misdemeanor.
( P ) Pronunciation Key (m
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