On Feb 27, 2012 Ms. Fernandez plead guilty to one count of “Failure to Stop After an Accident” – a 3rd degree felony. She was sentenced yesterday to 30 days – yes… you read that right… THIRTY FREAKING DAYS. You can read John Futty’s story in the Columbus Dispatch here – I have had the honor of representing Jeff’s Mom in the civil case – this sentence, frankly, makes me sick…

This case illustrates why folks hit… and run…

On May 21, 2010 Jeff Stevenson  hit by a car and left for dead.  He was struck around 230 -3am.  By the time Jeff’s body was found around 5am by a family on their way to move a family member to Georgia, it had already been a few rainy hours since the crash.  Any potential “crime scene” had been driven over by many cars and washed away by the rain. Police found some smashed bike and car parts at the scene, but little else was useable.  Of course, by running away Amber was able to avoid helping Jeff, or perhaps help make his last moments on earth more comfortable… but that’s another story…

Police did get a tip and were able to track down Amber’s car at a body shop. They retrieved her windshield from the garbage of the body shop and matched Jeff’s DNA to DNA found on the windshield. MOre than a year after the crash Amber was charged with two crimes – Leaving the Scene and Tampering with Evidence. She was NOT charged with any homicide crimes as police could not piece together what happened. Of course, by the time police knew anything about Amber Fernandez anything that MIGHT have been in her system had long since flushed out…and any evidence from the scene was gone.

Amber was driving home from her shift as a bartender at a local sports bar when she hit and killed Jeff.

Her defense was the Oh So Typical Hit/Run Defense - stop me if you’ve heard THIS one before – She claims that while she knew she hit “something” she didn’t know she’d smashed into “someONE” – that she’d hit a human being… and she didn’t stop because…er.. well… we will talk about that below.  However,  her lawyer in his “Sentencing Memorandum” DOES however, admit that as Amber was driving home an “unfortunate event” occurred – yea… thanks a lot for saying THAT much buddy…

The Sentencing Memo also leaves unexplained something else – why, after hearing media reports that a young man had been killed by a hit/run driver around the very same time she was driving home, and that this young man had been killed on the very same road she used to get home, why this poor, distraught, remorseful woman didn’t call police, turn herself in, invite police to look at her car or do ANYTHING but try to hide eviden ..er.. get her car fixed quick before anyone checked it out …

Ahhhh… but the Memo does note that Amber “…cooperated with the investigation fully…” Of course, such cooperation didn’t occur until AFTER the police got a tip, found her car at the body shop being all fixed up, grabbed the smashed windshield from the garbage and matched up the DNA from Jeff Stevenson to the bits of his body that remained embedded in Amber’s windshield … yea, after all that Amber was oh so very cooperative…

The Sentencing Memo fails to explain whether Amber was aware of the ghost bike which was placed at the scene in a well-publicized ceremony, or how she felt driving by that bike day after day after day after day, or whether she changed her route to avoid seeing the ghost bike or being haunted by what she had done –  really, the Memo fails to give us any reaction Amber had to finding out she had killed Jeff… other than to say she has been diagnosed with “post traumatic stress disorder” and “depression” and “panic attacks”- poor baby… The Memo also fails to note that Jeff Stevenson’s diagnosis remains the same… dead.

I mean, what did she THINK in those days after the crash – “Oh, that must have been somebody ELSE who hit that poor young fellow on the bike – couldn’t have been ME!”  Did she see all the momentos Jeff’s friends left under a tree at the scene?  The skateboards and stuffed animals and photos of Jeff flying on his board, and the handwritten notes on the bike?  Did she see the Dispatch coverage, the TV Coverage  or Jeff’s Obituary-  - was there no “buzz” at the bar she worked at about this horrific death?  A young man struck and left for dead, a grieving Mom - such a horrific scenario –  …  what did she think about THAT?  The Sentencing Memo doesn’t say …

Neal Young’s words from “Ohio” come to mind…

“What if you knew her
And found her dead on the ground
How can you run when you know?”

So, Amber Fernandez, after hitting and running and failing to report and being caught by police and pleading guilty to a felony hit/run, now ponies up to the bar and lays out her tale of woe to the judge –  Her Sentencing Memo describes her oh so stressful life history filled with divorce and moving around and OSU classes and how she now has PTSD caused by her killing Jeff Stevenson… she lays it out and she begs for “community control” – no jail at all. At least the judge wisely denied THAT request, anyway.

Amber’s Sentencing Memo sheds some light on her “version” of what happened - According to the Sentencing Memo she “remembers looking over her left shoulder and then reaching for her cell phone lying on the passenger seat next to her when SOMETHING HIT HER SUV breaking the windshield” – The lawyer’s Memo goes on to tell the court that Amber was uncertain whether she’d “hit a pole a deer or what” but “being a single female in a dark desolate area at 250am she continued home” – he described it as a “freak accident”

wow… just wow…

There’s more wrong with that description than I can begin to yell about – I think my next book will be on hit/run killings and the killers who  get off easy – we can call it  ”A Pole, A Deer, or WHAT” -

Since when does crashing your car when you are a “single female” give you the right to leave the scene? This was NOT some “desolate area” as Amber argues – this was Sawmill Road & Bright, near the bridge that goes over I-270 -a VERY well-lit busy multi-lane roadway with any number of businesses nearby – Was it raining?  Probably – but rain doesn’t give you the right to sneak away from the mess you’ve made either…

And… of course… since her cell phone was right there where she was looking for it when she clobbered, and killed, Jeff Stevenson – why not whip that baby out and call 911 and say “Help, I am a single female in a desolate area and SOMETHING HIT MY CAR” or whatever … I’m sure the cops would have been on it very quickly… but leave the scene?  With Jeff’s DNA embedded in your windshield?

So Amber pitches “Community Control” to the court – begging for no jail time –  and does a song and dance about how much killing Jeff Stevenson has hurt her… which is, of course, confirmed by her mom… Again, from John Futty’s story in the Dispatch:  ”…Fernandez’s mother, Stacy Russell, said her daughter has suffered panic attacks and threatened suicide over the incident….”

Amber, at least, had to listen to Mrs. Stevenson talk about her pride and joy, Jeff, and his two passions – art and skateboarding.  I don’t think she really “got” the depth of a Mom’s pain, though – dealing with the loss of her only child – a delightful and loving young man she had raised alone for 20 years – a beautiful spirit with energy and creativity in abundance – I just don’t think Amber got that… in fact, “loss” is not the right word – in fact, it’s a horrible word – hit and run death – killing – the cowardly act of an idiot driver…

No one thinks Amber Fernandez intended to hit Jeff Stevenson, but it FEELS like murder to a parent – a Mom who now has to live with the images of that scene  that her brain creates- images of her beautiful young man dying, helpless and alone, in the rain, on the side of the road all because some idiot yaywhoo wasn’t watching where she was going and doesn’t want to stop and see what she smashed into…

I wonder what Amber felt when, as described again by John Futty, Mrs Stevenson’s “… voice caught as she told the judge that he was “left by the side of the road, unattended and alone,” by a driver who “made no attempt to assist or call 911.””

The kicker though was when the defense argued that a polygraph expert had examined Amber – From John Futty’s story: “… The defense hired Randy Walker, a former Columbus police officer and certified polygraphist, who found that Fernandez was being truthful when she said she wasn’t aware that she had struck a bicyclist….”

Well, that makes sense, right.  I mean OF COURSE she didnt KNOW she hit a live human being –  SHE WAS DRIVING A TWO TON BOWLING BALL DOWN THE ROAD WHILE LOOKING FOR HER CELL PHONE - so she was in no position to “see” ANYTHING or anyone in front of her, let alone what she had hit – she was, in essence, driving blindfolded… had she STOPPED she would have very quickly discovered that yes, she had indeed hit a human being… so her action of leaving the scene enabled her to “honestly” state that she didn’t know she had hit a cyclist…

So what happened to her?  WEll, Common Pleas Judge Guy Reece sentenced Fernandez to 30 days in the Franklin County jail, fined her $5,000 and placed her on probation for three years. He also suspended her driver’s license for three years.

Laa…dee… freakin… da -

The judge apparently decided a 6 month or 1 or 2 or 3 year sentence was what, too harsh?  Jeff’s MOM certainly got a life sentence in this deal – 30 days, to me, is ridiculous… the ONLY message sent by that sentence is RUN BABY RUN if you happen to hit “something” … because if you stick around you are going to get nailed for vehicular homicide, but if you RUN AWAY like a coward, and whine about your increased stress, you might get 30 days…

It would have been interesting to know when Amber DID become aware that she had killed Jeff… and how long she hid that fact from police as she tried to get rid of the evidence…

I represented Jeff’s mom in the civil case. Fortunately, we were able to resolve that with Amber’s insurer without litigation. In cases where people lie to their insurance company about what happened, the insurer has the right to deny coverage – which the insurer here initially considered… we were able to convince the insurer that this would be a very very bad idea, and they paid up the policy limits… so no civil suit was required, nor would one have served any real purpose, except to cause more pain to Mrs. Stevenson and cause her to spend more time and money dealing with Amber Fernandez, and probably lead Amber into bankruptcy, where the most we would have recovered would have been the policy limits anyway.

I understand very well that this is a tough case for the prosecution. You can’t indict someone for vehicular homicide if you can’t prove exactly what happened in the crash, and why.  Running away prevented that.  You also cannot make Amber testify in the criminal case – so there was no way of knowing WHAT had happened in the crash.  The crash scene was hours old by the time  the police arrived, and debris had been scattered up by passing vehicles.  It would have been virtually impossible to prove what had actually happened to cause the crash.  Amber’s pre-sentence statements in her Sentencing Memo are the words of her lawyer, not subject to truth finding or cross-examination.  But… they are all we’ve got…

So, again, WHY do people hit..and run? Some run because they can avoid BIG time prison and only spend 30 days in jail… Some run because they hope to flush the juice out of their system before facing up to reality or giving a urine sample to cops … Some run because they have other legal issues about which they do not wish to converse with police officers… Some apparently run because they are single women in desolate areas who hit” something”, but are afraid to stop, or even call 911 from their cell phone  -  ALL of these folks have one thing in common – they are common, ordinary cowards who are afraid to face up to the consequences of their actions and who deserve, in my mind, to be treated as thugs and thieves and given stiff penalties – when folks realize that the penalty for running is greater than the penalty for sticking around, more folks will stick around instead of running away …

In this case  Amber’s lawyer argues that she “…cooperated with the investigation fully…” He leaves out the words “… once cops were able to track her down and confront her with evidence that she killed Jeff Stevenson…”  She, in fact, failed to “cooperate” at all by failing to call 911 at the scene, failing to stop and help Jeff, failing to call police after it became abundantly clear that her car hit and killed a person – I mean what did she do, wash the blood off the windshield the next day and run over to the body shop??

Sheeeeesh… Sick… I think… is too calm a word for my reaction to Amber’s approach to sentencing and the 30 days she  will hopefully serve… hopefully they are the most miserable 30 days of her life – which will do nothing to help  Mrs. Stevenson cope with the next  several thousand miserable days and nights she is facing…

Here, though, is a pretty nice list that compares the [alleged] reasons why the owners of certain types or brands of motorcycles don’t wave… enjoy!

[I apologize to whoever wrote this first - I've seen it on so many sites and places that I've lost track and can't credit the appropriate original, and obviously very funny, author]

Top Ten Reasons Not To Wave.

Top Ten Reasons Why Harley Riders Don’t Wave Back

10. Afraid it will invalidate warranty.
9. Leather and studs make it too heavy to raise arm.
8. Refuse to wave to anyone whose bike is already paid for.
7. Afraid to let go of handlebars because they might vibrate off.
6. Rushing wind would blow scabs off the new tattoos.
5. Angry because just took out second mortgage to pay luxury tax on new Harley.
4. Just discovered the fine print in owner’s manual and realized H-D is partially owned by Honda.
3. Can’t tell if other riders are waving or just reaching to cover their ears like everyone else.
2. Remembers the last time a Harley rider waved back, he impaled his hand on spiked helmet.
1. They’re too tired from spending hours polishing all that chrome to lift their arms.

Top Ten Reasons Why Gold Wing Riders Riders Don’t Wave Back

10. Wasn’t sure whether other rider was waving or making an obscene gesture.
9. Afraid might get frostbite if hand is removed from heated grip.
8. Has arthritis and the past 400 miles have made it difficult to raise arm.
7. Reflection from etched windshield momentarily blinded him.
6. The espresso machine just finished.
5. Was actually asleep when other rider waved.
4. Was in a three-way conference call with stockbroker and accessories dealer.
3. Was distracted by odd shaped blip on radar screen.
2. Was simultaneously adjusting the air suspension, seat height, programmable CD player, seat temperature, and satellite navigation system.
1. Couldn’t find the “auto wave back” button on dashboard.

Top Ten Reasons Why CrotchRocket Riders Riders Don’t Wave Back

10. Have not been riding long enough to know they’re supposed to.
9. Going too fast to have time enough to register the movement and respond.
8. You weren’t wearing bright enough gear for them to acknowledge you.
7. If they stick their arm out going that fast they’ll rip it out of the socket.
6. They’re too occupied with trying to get rid of their chicken strips.
5. They look way too cool with both hands on the bars or they don’t want to unbalance themselves while standing on the tank.
4. Their skin tight-kevlar-ballistic-nylon-kangaroo-leather suits prevent any position other than fetal.
3. Raising an arm allows bugs into the armholes of their tank tops.
2. It’s too hard to do one-handed stoppies.
1. They were too busy slipping their flip-flop back on.

Top Ten Reasons Why BMW Riders Riders Don’t Wave Back

10.        New Aerostich suit too stiff to raise arm.
9.         Removing a hand from the bars is considered “bad form.”
8.         Your bike isn’t weird enough looking to justify acknowledgement.
7.         Too sore from an 800-mile day on a stock “comfort” seat.
6.         Too busy programming the GPS, monitoring radar, listening to ipod, XM, and talking on the cell phone.
5.         He’s an Iron Butt rider and you’re not!
4.         Wires from Gerbings are just too short.
3.         You’re not riding the “right kind” of BMW.
2.         You haven’t been properly introduced.
1.         Afraid it will be misinterpreted as a friendly gesture

 

Rapids Road is shown below. According to the crash report the crash occurred 0.4 mile south of Greystone Drive.

Here’s another view from Google Earth:

The motorist who killed Judge Henry was also northbound on Rapids. Kelly Cox was driving a 2008 Chrysler Pacifica – a big, SUV-ish type of vehicle, which is 5,700 pounds and almost 80 inches wide.

The first apparent impact on the police report is a “bike scuff mark” roughly 2 feet, 11 inches off the side of the road. The Judge’s body is marked almost 160 feet north of this point.

After smashing into Judge Henry, the motorist… just drove away.

She went home, dropped off her kids, and returned with her husband.

So what happened? What did the motorist say? Well, below you can read her own statement…

Ummm… OK.. a raccoon… you swerve and you HIT A MAN ON A BIKE… and you keep going. Later in the statement Mrs. Cox told Troopers she THOUGHT SHE HIT A MAILBOX… so she kept going… when the Trooper asked what her step-daughte thought WHEN THE WINDOW EXPLODED, she admitted that her step-daughter said “I think you hit someone…”

So, Kelly Cox is being prosecuted, right?

Ummm… no… not so far as I can tell.

Well… at least Kelly Cox got a TICKET, right?

Ummm… no… not so far as I can tell.

So WHAT’S GOING ON IN GEAUGA COUNTY? Is the investigation “ongoing?” I haven’t read anything in the media about any tickets – or any prosecution…maybe a sharp reader can help me out… I’m sure I’m not the only one wondering why a death CLEARLY CAUSED BY HORRIFIC DRIVING isn’t being prosecuted at this point… even OSHP apparently came out and said Judge Henry was “BLAMELESS“…

I just don’t get it…

Steve Magas

8/20/2011 Follow Up – KELLY COX INDICTED

As many of you know by know, Kelly Cox was indicted this past week on seven separate criminal charges.  The key claim is that she had a blood alcohol level in excess of .28% and was driving drunk, with two kids in the car, at the time she smashed into Judge Henry and killed him.  You can read my about the indictment here.

7/18/2011 — FollowUp

I ordered the complete crash report and OSHP photos. The photos are, in a word, shocking.

The front of car that the motorist thought “hit a mailbox” is shown below.

The road, straight and narrow, is shown here:

After the crash, the officer tried to see where the damage to the back of the Judge’s bicycle lined up with damage to the SUV.

I understand that this woman had children in the car… but how do you smash into a human being and drive away… THAT I will NEVER understand…

UPDATE 2 – Weather

One alert reader took me to task and pointed out that the photos clearly show some rain, so, she argues, the weather was not “clear and dry” as I wrote. In reviewing the police report again, I found this under weather at the time of the crash.

As I indicated, it was clear and dry AT THE TIME OF THE CRASH. The rain came – but not until after the crash.

What about the witnesses, what did THEY see?

Well, here’s what one wrote:

Here’s what another witness said:

So while the reader’s observations about the rain in the photos are correct, clearly they were taken after the, not before. The crash, however, occurred before the storm hit. It was cloudy but not “dark.” It was clear and dry at the time Judge Henry was killed. He was was “visible” to anyone who was paying attention – like the guys cutting the grass – and should have been seen by every motorist on the road.

Who else said “clear and dry?” What would I write that? Well, if you read the motorist’s statement to the trooper you find this exchange:

The reader also claims that the road is “like an extreme rollercoaster, hilly and curvy.” Yet, from what I can tell from the google map, and the OSHP photos, the section of road where this crash occurred was straight, flat and narrow. The word “rollercoaster” does not pop into my mind when I look at this photo:

SMM

We’ve gathered most of the data – police reports, photographs, witness statements and accident reconstruction analysis from most of the 11 fatal crashes.  In the meantime, I continue to watch the Google Alerts for news of 2011′s fatal crashes.  Here’s a brief summary of some of the 2010 data, and a close look at two crashes.

-  There have been 11 bike deaths reported for 2010 – 9 men and 2 women.  Average Age- 43.6.  Median Age – 39. The oldest rider killed was 76, the youngest was 11.  While ODOT recently released a study showing that more than HALF of all bike “crashes” in Ohio involve kids between 5 and 18, fatal crashes typically involve adults.  In 2010, there was only one cyclist killed under the age of 18.

- Of the 11 fatal crashes, five occurred in the dark and four of those crashes were blamed on a lack of lighting or “conspicuity” of the cyclist.

-  There were two hit/run deaths in Columbus – Jeff Stevenson and Trent Music.  Both were struck at night.

- The driver who hit Mr. Music was found shortly after the crash.  Police blamed the cyclist for causing the crash as he was unlit and wearing dark clothes. He had been cited once before for this. From what I have been able to tell, police never cited the driver for leaving the scene of the crash or anything else stemming from this crash.

- The driver who allegedly struck and killed Mr. Stevenson was charged with two felonies a few weeks ago – more than a YEAR after the crash – after DNA evidence on her car matched up with Jeff.  Her case is pending, in a very early stage, before the Franklin County Common Pleas Court.  Her charges do NOT relate to causing the crash but to leaving the scene and “tampering with evidence.”

-  Two cyclists were killed in 2010 deaths while the cyclists, riding on a bike path, were trying to cross a two-lane country road to get back to the bike path on the other side of the road.  One was clearly the rider’s fault… the second I’m not so sure about.

CHAMPAIGN COUNTY BIKE TRAIL CRASH

Thomas Spurgin and his wife were riding north along the bike trail in Champaign County around 7:30 am on September 1, 2010 toward the Hickory Grove Road intersection.  Hickory Grove is a typical Ohio two lane 55 mph country road.  As they approached the Hickory Grove Road intersection, the sun was rising to their right.    Also to their right, within one hundred feet, was a low railroad crossing.

There are “Stop” signs and other signs warning trail users to use caution when crossing Hickory Grove Road.

As I try to “reconstruct” in my mind what happened here, I’m fairly certain that the combination of the terrain, the low overpass and the rising sun, played a role here in obscuring traffic from the east.  Mrs. Spurgin left the trail and entered the roadway with Mr. Spurgin 15-20 feet behind.  As Mrs. Spurgin left the trail and began crossing the road a pick-up truck approached from the east.  The pick-up driver told police he saw Mrs. Spurgin moving left to right in front of him and went left to avoid hitting her.  As he went left, he ended up running into Mr. Spurgin, who was just entering the roadway.  Mr. Spurgin died from his injuries.

Mrs. Spurgin told police that the two riders did not stop at the stop sign.  The truck driver told police he was well within the speed limit – which the police corroborated with an analysis of the skid marks.  They determined that the maximum speed of the pick-up was 46.7 and the minimum speed was 40mph.

To me, this crash occurred as a result of a poor, but somewhat understandable, decision by two riders out for an early morning casual bike trail ride.  Anyone who has ridden on a bike trail is familiar with being lulled into that sense of security.  Approaching the roadway intersections we need to ALWAYS gear up our senses and remember that we lose EVERY confrontation with every motor vehicle.  Here a combination of the rising sun and the low overpass probably made it difficult to see the approaching pick-up truck.  The police stated their conclusion very simply – the bike rider “… was at fault for not stopping at the posted stop sign on the bike path…”  Simply a tragic, and avoidable, crash.

TRUMBULL COUNTY BIKE TRAIL CRASH

The other bike trail crash occurred in Trumbull County.  Lawrence Furniss was riding south on a bike trail and intended to cross T.R. 222, also known as Housel Craft Road.  This is a very similar intersection to the Champaign County crash.  There are Stop signs on the trail as well as signs warning riders to use caution as they cross the roadway.  Mr. Furniss was struck and killed as he attempted to cross Housel Craft Road.  As in the Champaign County case, police blamed the crash on Mr. Furniss’s failure to stop at the stop sign.

Seems all nice and tidy… but… I have doubts about this one.

The motorist was traveling westbound on Housel Craft Road in 2004 Grand Am.  He told police he was going “about 55mph” which, of course, is the posted speed limit.  Unlike the Champaign County case, there is no mention in the crash report of any attempt by the OSHP investigators to determine whether the motorist’s claimed speed was reasonable given the  skid marks, crash damage or other factors.

The sketch, below, comes from the crash report.  As is typical, investigators labeled the skid marks and measured them.  The distance from point A to C, the right tire skid mark, was noted to be 188 feet.  The problem with the report is that there is NO notation of where on the road this skid mark starts – how far east of the point of impact the skid mark starts.  The “RP” point is a telephone pole.  The “O” point is the “concrete edge” of the north side of the road.  Point “O” is 37’6″ north of “RP” but nowhere in the report is there an indication of how far east of the path point “O” is found.  So we don’t know how far away from the crash site the motorist started his skid.

This information is important – maybe critically important – to a proper analysis of what happened here.  From the sketch, which is “NOT TO SCALE” it appears the officer was trying to show that Point A was quite a bit farther from the bike path than point “C” but without the measurements we’ll never know.

What about 188 feet of skid marks?  How do we consider that?  From the report, conditions were optimal for minimizing the stopping distance.  The road was flat- level.  It was 87 degrees and the road was dry.  There is no mention of any review of the motorist’s tires or brakes.  Using a typical skid/speed calculation formula, and using some basic assumptions about the car’s braking efficiency [1.0 - all brakes working] and the drag factor for asphalt [.75], I come up with a speed of roughly 65 mph, not the “about 55mph” stated by the motorist.

In addition to the skid mark evidence, the witness statement provided by the motorist was … interesting… to say the least.  The motorist wrote that he was “…was heading to our campground with my wife & dog & dog was getting car sick in the back seat so I was trying to get there a little quicker. Came up to a bike path and looked either way and saw no one. At the last minute he flew out in front of me and I immediately slammed the brakes on.”

Hmmm….

So the driver was distracted by a dog puking in the back seat.

And the driver was trying to get to his campsite “…a little quicker…” at the time of the crash, but claims to have been traveling the speed limit ["...about 55 mph..."]

The motorist claims to have been on the look-out at the bike path – looking both ways and seeing “no one” —  until this bike rider came flying out in front of him? Where was this cyclist? Was he invisible?  Can you see why the measurements are so critical?  How far from the intersection did this guy START braking?  Why did he lay down 188 feet of skid marks if he was going “about 55 mph?”

Most accident reconstructionists will testify that a typical “perception/reaction” time is 1.5 to 2.0 seconds.  This “P/R” time is critical to understanding crashes.  These experts tell us that human beings do not react instantaneously to danger – there is a bit of a time delay as the image of danger is “perceived” by the eyes/brain and some “reaction” is begun.  During this 1.5 – 2.0 seconds of P/R time a motorist, for example, just keeps moving toward the danger at speed.

In this case, at 60 mph, the motorist is traveling 88 feet per second.  Thus, if it took the motorist 2.0 seconds to perceive the cyclist and react, by hitting the brakes, the car would have traveled 176 feet before skidding even STARTED.  Again, that distance from the start of the skid to the point of impact is critical.

The car broadsided the cyclist. This much is obvious from the photos taken at the scene.  The rider did not strike the side of the car.  So this idea that the cyclist just appeared after not being visible just doesn’t make sense.

This motorist’s story, and the physical evidence, raises many more questions, to me, than it answers.  In fact, to me it says the motorist was both distracted AND speeding – two factors that are highly indicative of causing a crash.

Here’s a shot of the view the motorist had as he approached the bike trail.  Given the limitations of cameras, depth of focus, perspective and the like, it is difficult to tell “how far” something is from something else in the photo… those measurements would have been very helpful in analyzing this crash.

Maybe what happened was just “obvious” to officers at the scene?  I don’t know… but, to me, the report and photographs make it less than clear to me that this crash was 100% the fault of the cyclist…

Steve Magas
The Bike Lawyer

ODOT, Ohio’s Department of Transportation, does a lot of statistical stuff, along with the Ohio Department of Public Safety – ODPS.  ODOT had a Press Release about the dangers of cycling and  walking the other day which is interesting.  The key points:

-  FORTY PERCENT of all Pedestrian & Cycling Crash incidents involve KIDS – Folks age 5-18!

- Between 2006 and 2010, more than 23,297 crashes were pedestrian and bicycle-related resulting in 552 fatalities and 20,478 injuries (3,699 serious injuries).

This was surprising to me.  I have all the crash data in Ohio for all bicycle crashes from 2005 to 2010.  Unfortunately, the data I have is not searchable, as in a spreadsheet.  Rather, it was provided to me in 250 page PDF files.

ODOT submitted four charts of data. The first, below, shows ALL the bicycle and pedestrian crashes for five years, broken down by month.  The 10,212 “bike” crashes is consistent with the data I have which shows an average of around 2,000 crashes per year.

The second chart, below, shows the pedestrian & bike crashes involving kids aged 5 to 18.  The chart highlights what you and I might think, “Oh Yea, that makes sense…” – the fact that kid-crashes go up when school goes out.

The third chart shows the results of the second chart in a timeline manner.  The Kid Crashes – both bike and pedestrian.

The fourth chart shows the total pedestrian and bike crashes.  The pedestrian crashes are  certainly linear – they actually go UP a bit in the fall – my guess is that there is a correlation between the earlier darkness of the fall.  The total bike crashes match the kid-crashes – a “Bell” curve showing a rise in the summer “riding” months…

What fascinated me about this ODOT data review was this concept that Kid “Crashes” actually make up HALF of all bike crashes.  When I see that I feel MUCH better about being an adult rider in Ohio.  I “feel” like my odds of being in a crash on the roadway just got cut in HALF.

Fatal crashes are very different from just crashes.  Ohio has an average of 15-16 cyclists killed on Ohio’s roads each year.  The Insurance Institute of Highway Safety [IIHS], an auto insurance sponsored research group known primarily its auto crash testing, also keeps bicycle crash data – fatal crash data.  IIHS data reflects the following with regard to cyclist deaths in the United States.

As you can see, the demographics of bike crashes have completely Flip Flopped in the past 35 years.  In 1975, there were 1003 cyclist fatalities.  67% of those were under the age of 16.  Of the 1003 fatalities, 323 were over the age of 16.

By 2009, cyclist deaths have dropped significantly to 630.  However, while ODOT says 50% of all the “crashes” involve kids under 18, only 13% of the fatalities [85 out of 630] involved kids and 87% of deaths were of people over the age of 16.  This means that while cyclist deaths dropped almost 40%, the number ADULT cyclists killed in 2009 [545] was significantly GREATER than the number killed in 1975 [323].

According to NHTSA’s 2008 Report the average age of cyclists killed in the U.S. was 41 in 2008, UP from 32 in 1998.  The average age of cyclists INJURED has also gone up – from 24 in 1998 to 31 in 2008.

Bottom line – ODOT has tossed out some interesting math this week. I’m still waiting to receive the underlying data.  For now, though, it seems like an adult cyclist in Ohio can “feel” like the roads became LESS dangerous to him/her than they might have “felt” last week!

Good Luck and Good Riding!
Steve Magas, The Bike Lawyer

The artist, Talia Lampert, is a New York artist who does “Bike Paintings.”  Gorgeous, colorful paintings of … well… real bikes.  Not high-end $20,000 bikes made of the latest mode of unobtainium, but real people’s bikes.  You can see her work here.

I purchased the right to use one of Talia’s paintings for one of my cards.  I’ve been sitting on it for over a year… This week my artist-in-residence, my step-son’s wife, designer extraordinaire  Teresa Johns, put the thing together in grand fashion.  You can see the results below.

The back of the card will offer, in a much more lawyerly font, a summary of Ohio’s Bike Laws, with reference to the Ohio Revised Code sections.

As you can tell, we put one of those cool, funky, hip, groovy QR thingamagoochies in the  lower left corner.  If you aim your iPhone or SuperDroid at it, you are instantly transported to H.G. Wells’ Bicycle Utopia …er.. well… maybe not… it actually completes the Circle of Life and takes you right back here to the website through the magic of iFairies, pixel dust and the InterWeb…

Let me know what you, the reading public, thinks of this… I understand “spoke cards” are very hip right now… maybe that’s next on the list…

THANKS!

Steve Magas

Here’s an expanded, and annotated, version of what I sent in… my views on why Cyclist/Motorist Tensions that have escalated in Columbus during and following the Ed Miller trial – the man accused of being drunk when he ran into, and killed, a well-known Columbus cyclist, ride leader and advocate, Steve Barbour.  The trial recently ended in a mistrial as jurors could not reach a unanimous verdict.

Steve Magas, The Bike Lawyer

UNDERSTANDING CYCLIST/MOTORIST TENSIONS

By Steven M. Magas, The Bike Lawyer

The death of cyclist Steve Barbour in 2009, the recent trial of Ed Miller, and the 2010 deaths of Columbus cyclists Jeff Stevenson & Trent Music, have created a palpable tension between motorists and cyclists in central Ohio.  A war of words has erupted in the Columbus Dispatch.

Cyclists are rightfully angry that one of their most cautious and beloved brethren was killed and then blamed for causing his own death. Motorists argue that cyclists drive carelessly, should “pay for” using the roads though licenses and taxes and should not be allowed on certain roads in the first place.

Let’s step back –  take stock – and address some of these concerns.

Why Are Cyclists Allowed On The Roads?

As Walt Whitman proclaimed “O Public Road!”

The roads in Ohio, and throughout the U.S., are PUBLIC ways open for the public to exercise a constitutional right to travel.  Bicycles were on the roads before cars existed.  Bicycle operators are included as legitimate, legal road users in the traffic laws and rules of the road in all 50 states.  Under Ohio law, bicycles may use EVERY non-freeway road and may not be banned from the roadway.

Motorists argue that bicycles go “slow” – as do big trucks, farm equipment and Amish buggies.  However, on all but higher speed country roads, cyclists can actually travel at average speeds approaching motor vehicle speeds.  Today’s impatient motorists must understand that “traffic” is a brightly colored cloth which includes the movement of vehicles of all types and speeds of vehicles.

Do Cyclists, or Motorists,  “Pay For” The Roads?

Many, if not most, cyclists are licensed motor vehicle operator owners and pay the same “fees” as everyone else.  However, public roads, like public buildings, public sidewalks and pubic schools, are open to everyone regardless of income.

Roads are not a private club with a steep initiation fee and monthly dues.  Those who drive Big Trucks or gas hogs,  paying higher “fees” and “taxes” and buying more gas, do NOT get bigger or more rights than those operating smaller vehicles.  People driving VW Bugs or Mini Coopers or bicycles are not required to surrender their legal right of way to those driving a Ford Subdivision [or whatever the new humongo vehicle is called these days]!

Paying for the MAINTENANCE of roads is even more important. A single 40-ton semi, which weighs 40 times more than a one-ton car, does 9,600 times more damage to the roads than the car.   A bike rider does not compare – the bike+rider unit does virtually NO damage with  skinny tires, light frame and rider.  Yet, big trucks are not paying their “fair share” to maintain roads – at least according to a recent Dispatch editorial.  Under this analysis, bicycle operators should get a REFUND for not damaging roads…

Why Aren’t Cyclists Licensed?

We demand that people be licensed to be allowed to do dangerous things – things that put the lives of others at risk. A cyclist is a risk to her/himself but not a realistic risk to others.  A bicycle operator who goes “rogue” is not going to drive through a crowd of people and kill them.

Licensed motorists kill at the rate of 30,000+ per year in this country.  NHTSA was recently touting the latest figures for 2010, which dropped to “the lowest rate in history.” 33,808 people were killed in 2009 and “only” 32,788 were killed in 2010.  As far as I have been able to determine unlicensed cyclists killed ZERO people last year.

Drivers licenses were not issued in the U.S. until

Are Cyclists Driving Recklessly?

The short answer – no.

I am working on a report of EVERY cycling fatality in Ohio in 2010.  Part of my research included getting reports from the Ohio Department of Public Safety which list every CRASH involving a bicycle from 2005-2010.

There were only TEN cycling deaths out of 1,809 crashes in Ohio in 2010.  By comparison, 500,000 Ohio drivers were involved in over 300,000 crashes in 2009 leading to 935 deaths – that’s an average of 822 car crashes, and more than 2 motorist deaths, every day!

242 bike crashes occurred in Franklin County in 2010. Of those, 110 police reports listed the cyclist as the “unit in error.”   This roughly 50/50 breakdown on “fault” is consistent with national figures.

One Key Point needs to be inserted among the numbers here – one I firmly believe –> Cycling today in Ohio is SAFE.

Don’t let statistics prevent you from dusting off that bike and getting out there to enjoy Ohio’s roads and trails.  According to bike guru Ken Kifer, cycling is six times safer than LIVING! However, being aware of how accidents happen can help you “see” ahead and plan ahead. Knowledge is power and, here, it is the power to ride safely and effectively!  [Ironically, Ken Kifer was killed while riding - by a drunk driver who is now serving 20 years in prison for murder as the result killing him!]

“SEE” is actually an acronmym borrowed from the motorcycle literature.  It means “Scan/Search – Evaluate – Execute” – three steps new motorcyclists are taught to use constantly in Motorcycle Safety Foundation training classes.  These steps should be used by cyclists on the roadway as well.  ”Search” ahead – 10 to 12 seconds ahead – and determine what potential risks are upcoming.  Complex intersections, pedestrians, narrowing lanes, right turn lanes, freeway on-ramps, crosswalks, dog walkers, debris or potholes, parked cars…  ”Evaluate” those risks and develop a plan to deal with them as you approach.  ”Execute” that plan far enough ahead to keep the risk from blossoming into a full blown conundrum!

Rising Cyclist Tensions

I took a closer look at one Columbus street – High Street – where 25 bike crashes occurred in 2010.  High Street is a long, flat, urban thoroughfare that stretches from one end of Columbus to the other.  Downtown High Street is chock full of great shops, food establishments and cyclists.  Of the 25 bike crashes in 2010, the cyclist was faulted in only FIVE while sixteen listed the motorist as being at fault.

“Right of way” violations by motorists on High Street were the overwhelming proximate cause of these crashes – i.e., the cyclist possessed the “right of way” under the law and that right of way was not respected by the motor vehicle operator either through an improper turn, passing maneuver, “ACDA” violation or other invasion of the cyclist’s right of way.

In many of these High Street crashes the motorist simply failed to “see” the cyclist.  As I have written many times, this is not an excuse but an admission of liability.  Judging by the actions of the downtown traffic cops in Columbus, motorists are being ticketed for these right of way violations.

Hit and run drivers continue to plague cyclists – as well as pedestrians, motorcyclists and other vehicle operators.  Hit/run drivers kill four people in the U.S. every day.

In Columbus, Jeff Stevenson and Trent Music were both killed by hit and run drivers.  Maybe you saw a white “ghost bike” marking the scene of Jeff’s death on Sawmill Road last summer?  Hit & run deaths take a huge emotional toll on the cycling community – similar to how an unsolved murder rattles the neighborhood where it occurs.

Steve Donaldson is an Arizona cyclist who started “CARD” – Cyclists Against Reckless Driving – with a mission of promoting and encouraging safe cycling, reducing crashes, and educating and informing the masses.  Steve started CARD’s Facebook page a year or so ago for the purpose of publicizing bicycle crash cases he finds during daily web searches.   CARD’s page has amassed more than 10,000 followers who follow the tragedies around the country. While at times morbid, this page serves as a very in-your-face reminder to cyclists that stuff happens on the roads every day  and hit/run incidents seem to be an epidemic these days.

How do we move forward?

The key is education – understanding the law as well as where the emotion on each “side” of this issue comes from.

Motorists need to understand and accept that:

-       Ohio cyclists may ride on virtually EVERY non-freeway chunk of asphalt in Ohio – even the ones viewed by some as “dangerous.”

-       A cyclist riding lawfully on the roadway has EXACTLY THE SAME “right of way” as any other driver. Bigger vehicles don’t get bigger rights!

-       “Failure to Yield” to a cyclist’s right of way is one of the primary causes of car/bike crashes in Columbus, in Franklin County, in Ohio and in the U.S.

-       Ohio law allows cyclists to ride two abreast.  One rider may use the FULL LANE where needed for safe riding.

-       Passing at safe distance is critical.

Cyclists need to understand and accept that:

-       With the right to use the roads comes responsibility.  Cyclists must follow the rules of the road just as any vehicle operator must.

-       Traffic rules must be followed.  Stopping at red lights and stop signs is mandatory and an effective way to demonstrate that you ARE “traffic” and not simply playing in traffic.

-       Riding visibly, and predictably, is better for riders AND motorists.

Millions of Ohio bicycle riders will safely ride tens of millions of miles this year.  With gas prices over $4.00/gallon and rising, we will see more utilitarian riders to go along with the commuters, recreational riders, mom & dads, fitness buffs, racers and kids on the roads.

To quote Sgt. Phil Esterhaus: “Let’s Be Careful Out There.”

Florida, Texas and California continue to be the Big Three, leading the US year after year in cycling deaths. In 2009, there were 630 fatalities in the US. FL, CA & TX had 107, 99 and 48, or 40%.
http://www-nrd.nhtsa.dot.gov/Pubs/811386.pdf Florida alone had 17% of all cycling deaths.

I would like to hear from Floridian cyclists and bike safety folks as to what they think is going on down there… up here in OH, we tend to stereotypically picture FL drivers as old, retired folks driving big cars – or tourists – driving on relatively flat roads. Are drivers just that bad – too easy to get distracted? Are cyclists not cycling safely? Are the roads just too long and straight and boring and fast and motorists “zone out?” Is drunk driving a bigger problem in FL than elsewhere? Is distracted driving a bigger issue? Are there simply a limited number of roads with a much higher traffic density and higher level of drivers whose best driving days are, perhaps, in the rear view mirror?  Where’s RAY LAHOOD on this one then?

No answers here. But, to respond to those who feel that courts are “too clogged” for more “criminal negligence” crimes, the LEO’s and Courts are NOT overburdened by car crashes at all. Adding to the penalty choices available to judges for people who kill or maim with their cars simply adds options to cases already in the system.

The reason nothing happens to these drivers is that the Legislatures have failed, almost uniformly in this country, to recognize that driving a car carelessly is the equivalent of waving a loaded gun around carelessly. The results are just as predictable, and just as deadly – moreso with cars, actually, since they are bigger than bullets and more likely to be in close proximity to MANY living, breathing humans than a guy with a gun, who tends to be around 1 or 2.

Legislatures treat driving a car like a god-given, inalienable right found in the 2nd Amendment – thou shalt be entitled to bear arms and drive a car – often at the same time. Legislatures have laws in place for those rare instances when someone INTENTIONALLY kills, but very few laws with any teeth when someone CARELESSLY kills or maims with a car.

In Kentucky, Russel Swigart is serving TEN YEARS in prison for intentionally killing two cats during a burglary.  In Ohio, a judge gave Erv Blackston  SIX DAYS of COMMUNITY SERVICE for killing Michelle Kazlauski in a deathtrap of a pick-up truck with jeri-rigged brakes!  I’m not saying killing cats isn’t horrible… it’s just that the sentences are askew.  Legislatures treat careless killings of innocent people, killings that cause a lifetime of pain and, often, financial loss for grieving families,  as “slap on the wrist” crimes while treating intentional crimes against animals as deserving of severe punishment – crimes in which the “victim” loses a pet, not a parent.  If Mr. Swigart had run down the cat’s OWNER instead of killing the cat, his sentence, in Ohio anyway, could have been far less than 10 years!

In Ohio, when I testified in favor of a law upping the potential penalty to include stiffer fines and longer license suspensions [but NO jail time] when a “minor” right of way violation resulted in death I was told by an old friend on the Ohio Senate’s Law Committee that “We Don’t Want To CRIMINALIZE NEGLIGENCE.” That law is still percolating in committee and we’ll try again this year facing the same uphill battle for passage.

I say it’s HIGH TIME we DO criminalize negligence, at least when the negligence relates to activities where there is a very high risk that someone will be killed or maimed due to negligence. If someone carelessly drives a lawn mower or mishandles a power tool, the odds of death to others are small. If someone carelessly drives a 2 ton vehicle through a red light because they are fiddling with the radio dial, are “zoned out” due to a pending divorce or are texting or putting on make-up or reading the paper or downloading a fax, or adding a “Contact,” on their smartphone, the odds are HIGH that someone will be killed or maimed…

Stiff criminal penalties DO have an impact on behavior… these are not “accidents” caused by a act of God, they are preventable crashes caused by the careless lack of attention of someone engaged in a potentially dangerous behavior.

More on this theme to follow…

From D.C. comes an interesting post – the author makes a case for changing “the rules” for riding bikes, questioning why we need to follow the same rules as giant two ton behemoths.  Unspecified “changes” need to be made to the rules.  Bikes shouldn’t have to follow the same rules.

“…These updated rules should provide better clarity about situations that didn’t really exist 10 years ago. For example, vehicles turning right when there’s a bike lane. Is the person driving supposed to wait for the bike? Or is the person on the bike supposed to overtake the car as the driver waits in the bike lane to turn right? What if someone double-parked their car in a bike lane, what is the correct action for the cyclist?…”

Many of the following comments militantly argue against rules at all – criticizing the “Law & Order Brigade” of cyclists who think we need to have some rules to control the orderly flow of rules on the rules…

“… the L&OB are not unlike the Vehicular Cycling (VC) folks who actively quashed the growth of cycling in the United States for the past 30 years. It is possible that VC folks, having been exposed and discredited, have merely shifted their pro-driving rhetoric to one of making cyclists obey laws which nobody else obeys, in order to make cycling as inconvenient as possible…. “

Below is the post I added to the conversation…

— — — —

WHY FOLLOW THE RULES?

Interesting approach – don’t treat bikes like vehicles.  In an era where there are MANY in politics looking for any excuse to kick us OFF the roads, the easiest would be for them to say, “Look, they don’t want to follow the rules.”

As an avid cyclist, a lawyer who has handled 250+ “bike cases” in which cyclists have been hurt or killed, someone who has researched bike crashes and drafted legislation, and someone who has written “bike laws” with the best interests of cyclists at heart and tried to work them through “the system,” I see the author’s approach here as naive and idealistic – creating a sort of Bike Utopia, where everyone sees and appreciates the merits and benefits of cycling and allows cyclists to use the roadways without really needing to follow “the rules” – so, what, they’re not so much “rules” really, eh?  They’re actually more like guidelines?

Roadways are public ways – designed to allow the public to move about the country in an orderly fashion.  Rules are needed to insure this orderly flow of “traffic.”  Traffic is a brightly woven cloth with threads of many colors – the dark, smokey, polluted greys and blacks of cars, trucks and busses, and the bright, vibrant hues of bicycles, trikes, recumbents, fixies, 29-ers, hard and soft tails, and “kid” bikes.  The rules for moving all this traffic around safely must take ALL types of traffic in mind – from Amish buggies to slow moving farm equipment to bikes to 4-wheelers to 18-wheelers… Maybe life for cyclists is better in D.C. and has evolved to that Utopian place where rules are no longer needed and folks can just LOOK and be safe – not so here.

The “law” generally divides the world into two parts – the part “On” the road and the part not on the road.  If you want to drive a vehicle on the road, you need to follow the rules.  For bicycle operators, this means some very basic stuff- stopping at red lights and stop signs – not driving drunk – etc etc etc.  While the merits of particular rules can be debated, the reality is that rules are needed to make traveling in traffic “predictable” and safe.

I’m currently doing a detailed study of EVERY fatal bike crash in Ohio over the past two years – a study I hope to continue each year.  I’ll be releasing a detailed report in time, hopefully, for Bike Month.  This study involves obtaining and independently reviewing and analyzing the crash reports, witness statements, photographs, accident reconstruction analysis and any other publicly available documents of each deadly crash to see if the police “got it right” when detailing the “cause” of the crash.  Ohio’s cycling fatalities usually are in the 10-20 range, so, to me, this type of detailed study was “do-able” and the numbers are really too small to use statistically.

Of the 9 fatalities in Ohio in 2010, 2 involved cyclists who ran stop signs at bike path/roadway intersections.  One involved an older man who was riding at night, without a light, in dark clothes, while very drunk… [funny thing, from my reading of the police reports, the latter rider may have been the LEAST culpable of the three...in terms of accident causation!  He was riding well to the right, possibly off the road and on the berm, when he was rear-ended by a hit/run driver.  Police did a rather shabby investigation, though, as far as accident reconstruction probably, I suspect, because he was drunk, and it was night, and he had no light so Voila, he was "invisible" and the hit/run motorist couldn't "see" him...given where he was struck, and where the debris scattered, the motorist was clearly, to me, off the roadway when she clobbered him...but that's another story]

People writing about “injuries” in this thread have picked up a very valid point.  “Injury” cases are much harder to classify and track.  Injuries range from skull fractures and TBI’s to road rash.  However, virtually every fatal crash generates a very detailed report, which makes for a better independent study.  For any analysis of bike crashes leading to “injuries” we are stuck with big numbers, statistics based on a possibly faulty street-level analysis leading to hurried conclusions noted with an “X”  in the “fault” box of a police report by a beat cop who may have better things to do …

So how does this help us look at the “Idaho Stop” and “let’s not follow the rules” arguments? First, anyone who has been involved in cycling advocacy for more than 5 minutes knows that selling a change of the rules is very very tough no matter WHAT the change is… if the change is “we’re gonna let cyclists slide through stop signs” I can guarantee you that you will never get the votes in Ohio’s legislature to get that through.  There is no sense in wasting what little political capital we have on dead issues with no chance of passing.

Further, I see the “Idaho Stop” as potential suicide in big cities.  You can say what you want about people being smart enough to not pull out in front of cars, it happens all the time under CURRENT “stop” laws… it’s a bit like watching a punch press… you think you’ve got it timed so you can stick your hand in there and not get clobbered but the odds of you getting stuck… at some point over time.. are pretty good without rules and guards to protect you – 1:1 maybe – even though you KNOW it would be stupid to let that thing smash your hand and you KNOW you can time it so you can stick your hand in without getting smashed – over time, stuff happens… people get tired or in a hurry or they are having too much fun to pay attention, they don’t “see” what there is to be seen, perception/reaction times suffer… Following “stop sign” rules and other rules keep you safe while participating in the very serious business of moving about the country!

Finally, if we want “respect” from motorists, we have to earn it on EVERY ride. I’ve written for many years that every cyclist is an Ambassador for Cycling on EVERY ride.  The meter that measures public perception of cyclists ticks ever slow slightly Positive or Negative with every encounter a motorist has with a cyclist.  When I take a “bike case” to trial, I try to gauge the feelings of jurors about cyclists on the roadway – almost all have negative views based on negative experiences.  This negativity crops up in lawmakers in the form of a “parens patriae” approach – we need to take care of them and keep them safe…how?  By getting them off the road of course!  Not following the road rules just juices up THAT theory.

We’ve been fighting the battle to stay ON the roads for more than 100 years…In May, 1896 [yes, that's EIGHTEEN Ninety Six], early cycling advocate JB Potter had to remind New York City’s Park’s Commissioner that he lacked the authority to kick bikes off the roads and relegate them to “cycle paths.”  He did so by pointing to a law which then allowed cyclists to use EVERY roadway “…open to the free use of persons using carriages drawn by horses…”  The “car” wasn’t even on the legal radar yet.  Let’s not give “them” more ammo in 2011 to justify arguments in favor of kicking us OFF the roads…

Let’s be careful out there!

Steve Magas

The Bike Lawyer

www.OhioBikeLawyer.com

[co-author of "Bicycling and the Law"]

I’m not a criminal lawyer.  I don’t do criminal cases and I must confess I don’t know criminal law the way I know the law relating to civil cases, insurance, and the like!  So maybe this is why I STILL don’t get criminal sentencing sometimes…

It seems like we are ALWAYS hearing about motorists who kill or maim riders… and yet, there is no prosecution, or they receive very little punishment for their misdeeds.  Readers frequently ask me “How Can This Happen?”  Hit/run cases are EPIDEMIC today… yet, the penalties for hit/run drivers are very small compared to the impact of such actions on the families losing a loved one.

I read the first sentence of this January 12, 2011 online newspaper article, though, and my jaw hit the floor… “…A Canton woman involved in a fatal crash that killed a motorcyclist in June reported to the Stark County Jail on Monday to begin serving a 15-day jail term.…”

Yes, that’s not a typo.  She began serving her FIFTEEN DAY jail term for killing a motorcyclist.   How does this happen?  Was the motorcyclist at fault somehow?

In this case, the motorcyclist apparently did nothing wrong.  According to media reports, 19-year-old Jonathon Davis was riding his motorcycle and had the right of way at the intersection of Ellis Avenue and 27^th Street NE in Canton, Ohio, when 27-year-old Michelle Merry blew the stop sign.  Davis smashed into the side of the car, went through the windshield and ended up inside.  He later died in surgery.

Michelle Merry was charged with Vehicular Homicide and Vehicular Manslaughter.   According to the most recent story, she plead guilty to Vehicular Manslaughter.  The judge sentenced her to “90 days in jail” then suspended all but 20 days, and gave her credit for five days served.  He ordered her to pay “fines, costs and restitution” and suspended her license for two whole years!  Wow, what a severe slap on the wrist for killing someone – two weeks in jail!

Criminal law is based on “intent” and punishing people who intentionally do things to others.  Murder – Assault – Robbery.  You don’t do these things carelessly or without intending to do them.  Those crimes are “easy” – no one has any heartburn about severely punishing people who clearly commit these crimes.   Whether you are for or against capital punishment, clearly people who intentionally kill, hurt or rob should be severely punished.  The guilty STATE OF MIND is critical.

What about when someone CARELESSLY kills or hurts someone?   They didn’t mean it.  They didn’t INTEND to hurt you.  They weren’t planning on crashing into someone.  They “merely” goofed – they were twiddling the radio dial, texting, downloading a fax on their smartphone, turning around and yelling at their kids, driving “blindly” into the sun or doing some other dumb, stupid, careless or distracted thing when they smashed into someone or something else.  How should “The Law” treat these people?

What about someone who is “merely” speeding?  Should the penalties be more severe if someone is killed by a speeder?  How about if someone shoots a gun in the air on New Year’s Eve, not “thinking” that the bullets that go UP will also come DOWN somewhere and, maybe, into someONE?  That guy didn’t MEAN to kill someone – they didn’t INTEND to hurt anyone – they weren’t AIMING at anyone… they shot a bullet into the air and it killed someone … it “just happened”… it was “an accident.”

I hate that word – “ACCIDENT” – especially when it is used in discussions about cars and trucks running into bikes and killing or maiming riders.

These things are NOT “accidents.”  Accidents occur without regard to “fault.”  “Accidents” are not the natural result of stupid, careless behavior.  True “accidents” are the result of being in the wrong place at the wrong time – they are Nobody’s fault.  These crashes are the predictable result of a series of events set in motion because of someone’s stupid, careless behavior.

How does the law treat these stupid, careless mis-steps?

In civil cases, you can pursue the stupid-acting doofus and obtain a money judgment to compensate you for your injuries and damages.  If some texting-teen  clobbers you, you have a claim against him/her.  If a radio-dial-twiddling motorist broadsides you, you can win money damages.  If Michelle Merry ran a stop sign and killed Jonathon Davis, Mr. Davis’s family can sue Ms. Merry for damages.  Of course, if she lacks insurance, or carries Ohio’s incredibly low state minimum of $12,500] they won’t collect enough money to pay the funeral bill, but, hey, that’s their problem, right?]

But does the CRIMINAL law punish these people too?  Well, not very well in some cases.

Remember, criminal law is based on INTENT.  These crashes [I like that word a LOT more than “accidents”] are not the result intentional actions, but they are the result of STUPID careless, negligent misconduct.   In Ohio, the criminal law recognizes that criminal consequences for carelessly handling two-ton vehicles on public roads is acceptable.

In Ohio, these driving crimes are found in a series VERY long section of the Ohio Revised Code -  Section 2903.06 – “Aggravated Vehicular Homicide – Vehicular Homicide – Vehicular Manslaughter.”   What are the differences in these three crimes?

In Ohio, “murder” can lead to sentences of 15 years to life.  Killing with a car can lead to sentences as low as 90 days…or 15 days in the case of Michelle Merry.

Vehicular Manslaughter

A driver may be charged with vehicular manslaughter, the least serious of Ohio’s three vehicular homicide offenses, if he or she caused a death on the road as the result of violating a minor traffic rule, or by violating any equivalent municipal ordinance.   Vehicular manslaughter is a 2^nd degree misdemeanor, but can bump to to an M1 if the driver has no license.  90 days is typically the maximum sentence.

Vehicular Homicide

An individual faces a vehicular homicide charge if he or she caused a death on the road as a result of a failure to use reasonable care while driving, – i.e., was driving negligently – or failed to abide by speed limits in a construction zone.  This is a first degree misdemeanor that can bump up to a felony in certain cases.

Aggravated Vehicular Homicide

Certain elements, known as aggravating factors, can enhance what would otherwise be a standard vehicular homicide or vehicular manslaughter into an aggravated vehicular homicide.   Usually, it’s alcohol or drugs or a history of bad driving.  A drunk or impaired driver who kills a motorcyclist, bicyclist or any other person, is potentially criminally liable for aggravated vehicular homicide.

For all three levels (aggravated vehicular homicide, vehicular homicide, and vehicular manslaughter), an offender’s previous convictions for related crimes as well as committing the offense while driving without a valid license can be taken into account in enhancing a sentence.

Another potential aggravating factor is relatively new to Ohio law. A driver who causes the death of another as a result of committing a reckless operation offense in a construction zone may be liable for aggravated vehicular homicide. This aggravating factor was added in 2004 to try to make construction zones safer for Ohio workers.

Reckless operation can refer to a wide variety of driving, but the key element is willful or wanton disregard for the safety of persons or property. Weaving in and out of traffic, excessive speeding (usually 25mph or more over the speed limit), and other unsafe driving can be considered reckless operation.  Speeding has been found to constitute “reckless” operation as well. The issue of when “negligent” behavior crosses the line to “reckless” behavior is very tricky.

High Enough Penalties?

The penalties for aggravated vehicular homicide in Ohio can be quite severe.   Earlier this year, an Ohio man faced up to eight years in prison after pleading guilty to aggravated vehicular homicide. In Cincinnati a couple years ago, a man was sentenced to SIXTEEN years in prison for killing two bicycle riders.  That fellow was driving on a suspended license on a Sunday morning and was found to have cocaine, pot and alcohol in his system.  He was, in essence, the poster boy for severe punishment under the aggravated vehicular homicide law.

What about the consequences for less serious offenses of vehicular homicide and vehicular manslaughter? Are they strict enough.

In August, Richard Crabtree was killed on an Ohio road when Steven Tirpak ran a red light and broadsided Crabtree’s vehicle. Tirpak had a valid driver’s license, and was not under the influence of drugs or alcohol. He was charged with vehicular homicide and vehicular manslaughter. After pleading no contest to vehicular homicide, he received 180 days in jail (later reduced to 90 days), five years probation, a fine of $1,000, a term of community service, and the loss of his driver’s license for five years.

In 2008, Sara Bender was driving north on Route 23 in the rain when she struck and killed a cyclist, Dr. Steven Crowley.  She didn’t stop.  Rather, she went home, parked her smashed up car in the garage, got in a DIFFERENT car and returned to the scene.  She spoke with police there, and told them she thought she “hit a sign.”

In this case, Bender was not even CHARGED with violating ANY of the three crimes under the Vehicular Homicide section of the Code!  Prosecutors said they could not prove what happened, could not prove “reckless” behavior and did not have a case involving alcohol.  Bender had a valid license.  She “merely” left the scene.  She was charged with a felony “leaving the scene” and her case went to trial.  A jury convicted her of a misdemeanor violation.  She was sentenced to a mere 60 DAYS in jail for killing Dr. Crowley.

In August, 2010, my former employer, the 12^th District Court of Appeals in Ohio, held that a truck driver doing 60 m.p.h. in a 55 m.p.h. zone was guilty of being “reckless” when his rig crashed into another vehicle killing the rear seat passenger and seriously injuring the two front seat passengers.  The driver argue that he was “merely” negligent (and thus guilty of a misdemeanor, not a felony) didn’t fly.

After all of THAT… I’m still BAFFLED by this 15 DAY sentence… judges have a LOT of leeway in sentencing in cases where people kill other people with their motor vehicles…