The case against Kelly Cox was strong. As you will recall from my earlier posts here, here and here, on May 23, 2011,  Ms. Cox was driving her big Pacifica on Rapids Road in Geauga County with two children in the car when she rear-ended Judge Henry’s bicycle.  She was later tested for alcohol and the 0.28%BAC figure was revealed.  After a bit of time the indictment was handed down and included numerous charges, including Aggravated Vehicular Homicide.

The case seemed to drag through the court system, as many serious cases do.  Ms. Cox filed a Motion to Suppress the Blood test results and tried to have the case moved to a different jurisdiction.  The court said No.

The case came up for trial on Monday January 23, 2012 – a fairly quick trip through the system, really.  On the morning of trial instead of calling witnesses, the various parties huddled together to discuss resolving the case without a trial.

From the family’s perspective, I’m sure there were many conflicting issues.  Of course, you want Ms. Cox to face up to what she did – to have the evidence presented and have the world see the strength of the case against her.  You want her claims and denials to be shredded by the testimony and the testing and the science.  You want the public to see that your family member did NOTHING wrong – NOTHING to cause this horrific crash – that his death was solely, completely, undeniably caused by the drunken misbehavior of Ms. Cox… but… a criminal trial is an awful thing.  Your deceased son, or brother, is criticized and blamed for causing his own death – “experts” from the defense try to pin the blame not on Ms. Cox but on the cyclist.  Other “experts” try to argue that Ms. Cox wasn’t really drunk or impaired, or that the cops screwed up the evidence or the investigation.  The family has to sit and listen to all of this, and hope the jury isn’t befuddled by the aggressive defense tactics…

So it’s a trade-off … these plea deals.  The family trades a little to avoid the pain and horror of going through it again… step by step… photo by awful photo… You trade certainty and being “done” to avoid the risk of a bad jury verdict or years of appeals.  In the end, Judge Henry’s family decided to accept the “deal” – here, the deal was solely about the extent of the possible punishment, not about avoiding liability.  As today’s newspaper article said: “… Cox answered “guilty” to each of seven charges named in an August indictment: two counts of aggravated vehicular homicide and two counts of endangering children, and one count each of driving under the influence and reckless operation of a vehicle….”  You can read the plea agreement here.

Sentencing will be set for sometime in February.

So how can YOU get involved?

Well, one of the things that a judge can consider in sentencing is the impact of the crime on the “community.” Victim impact statements are generally accepted for sentencing.  Some courts accept input as to the impact of a crime on the “community.” Here the cycling “community” should speak out and provide the court with its view of how drunk drivers who kill or maim cyclists “impact” the cycling community.

You can send  your letters to

Geauga County Prosecutor

Attn:  Cindi Wellman

231 Main Street, Suite 3A

Chardon, Ohio 44024

Or they can be faxed to her at 440-279-1322

I hope Judge Henry’s family can find some peace through this process.  Nothing can bring back the one you lost.  No jury verdict results in the waving of a wand and bringing that person back to life.  Our system of justice is designed to dig out the Truth and punish those who violate our criminal laws… that’s all… there’s no provision in the law for helping the victim get their life back… I know that Judge Henry’s family will remain in the thoughts and prayers of ALL Ohio cyclists …

Steve Magas

You can listen here.

I took second billing that day – to Pulitzer Prize winner Doris Kearns Goodwin!  I’ll take THAT any day!

Enjoy!

That last paragraph may be confusing to some of you.  Let’s start, as we must, at the beginning.  In Florida, as in every state, if someone driving a car operates the car negligently and, as a result, a cyclist is hurt of killed then a “civil” claim arises.  ”Civil” claims are claims made by people against other people for money damages.  ”Criminal” cases are cases in which the “State” seeks to punish citizens for violating criminal laws – while fines may be imposed, the loss of freedom through forced incarceration is what separates “criminal” cases from “civil.”

The money damages in 99% of civil cases are “compensatory” damages – damages based on compensating the injured party, or the next of kin, for losses suffered.  The court instructs the jury that compensatory damages are NOT designed to punish the wrong-doer, but to compensate the victim for what was taken away.  Compensatory damages include medical bills, lost wages and other out of pocket expenses as well as money to compensate for pain and suffering and other losses.

In a limited number of civil cases, though, juries are permitted to consider imposing damages designed to punish the wrongdoer.  In Ohio, for example, the new punitive damages statute states that the plaintiff must prove “… (1) The actions or omissions of that defendant demonstrate malice or aggravated or egregious fraud, or that defendant as principal or master knowingly authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate….”

Punitive damages are awarded, then, in egregious cases – not your run-of-the-mill, “oops I was twiddling the radio dial when I hit you” cases.  Punitive damages have been argued and permitted in DUI cases.  However, according to the lawyers in the Caskey case, juries have never considered an award of punitive damages in a “Texting” case.  This is what is meant by the phrase “case of first impression.”

The other thing about punitive damages is that they are generally NOT covered by insurance.  You buy insurance to protect you if you are “negligent” or careless.  However, you cannot buy insurance to protect you if you act so egregiously and maliciously as to permit a jury to punish you buy awarding punitive damages.  This is another reason that punitive damages don’t pop up all that often in auto cases – unless you have a driver with “deep pockets” you will never collect them because insurance companies don’t pay “puni’s.”

In the Florida case, though, you’ve got all the ducks lined up in a row.  The motorist, Mr. Daniels, is a pharmaceutical rep and his employer, Astellas Pharma US Inc, owns the car that Daniels was driving when he hit and killed Caskey. You’ve got the deep pockets that can actually PAY punitive damages if the jury awards them even though Daniels has filed bankruptcy.  Bob Mionske reports that “The lawsuit contends Daniels was texting and intentionally took his eyes off the road, causing the crash. His conduct was so reckless, the lawsuit says, that it constituted a conscious disregard or indifference to the life, safety or rights of others, including Caskey.”

Daniels denies that he was texting. He claims he “…  texted before leaving home, tossed his phone in a box on his back seat and headed to work, unaware of the texted reply….”  His lawyer claims that Caskey is responsible for the crash because he was “… riding the low-lying bike…” –  a completely “legal” three-wheeled racing recumbent.

Caskey family lawyers were suspicious, though, since the crash occurred in broad daylight on a road with no other obstructions… why DIDN’T Daniels see the bike and rider?

Daniels says he wasn’t texting but… the electronic data suggests otherwise.

“… An eyewitness estimated he called 911 within 20 or 25 seconds of the crash. Collier sheriff’s records, set by satellite, clocked it at 9:04:38 a.m. Daniels’ phone records show he checked his voicemail at 9:03 a.m., texted between 9:03:01 and 9:03:59, and received a text message around 9:04:01….” So, clearly there is evidence in the record that supports a finding that the motorist was texting at the time of the crash – evidence which disputes the “tossed the phone in the backseat” defense…

Judge Hugh Hayes is pushing the envelope – in the right direction by my way of thinking.  Texting has been studied … a lot. Several studies indicate that texting is actually more dangerous than drunk driving.  That makes sense, eh.  Drunks are, usually, TRYING to drive right – they are trying to see, trying to control their cars, but their brains, eyes, reflexes and decision making is impaired.  Texters are, in essence, “controlling” a two ton bowling ball to move forward while blindfolded.  The texter can’t see ANYTHING that is in the car’s path.  The drunk loads himself up with poison and drives while impaired – the texter intentionally looks away from the roadway and “impairs” him/herself.

We will wait and see what happens in Florida… and hope that this way of looking at texting behavior expands to other states, including Ohio…

Steve Barbour was a beloved Columbus cyclist.  He was a retired civil engineer from O.D.O.T.  A long-time member of Columbus Outdoor Pursuits, he had been a ride leader since the 1980′s.  He was on his way to lead a C.O.P. ride the morning he was run down and killed by Ed Miller.

Steve Barbour Ghost Bike

I have written about Mr. Miller’s criminal case at some length here, here and here.  He was tried in March – focused his defense on blaming Steve Barbour and claiming the cops screwed up the alcohol stuff – and ended up with a hung jury.

In Columbus, a jury was selected last week for his re-trial.  Columbus Dispatch reporter John Futty covered the first trial and reported on September 15, 2011 that Mr. Miller had decided to give up his right to a jury trial and plead GUILTY to the “lesser of two aggravated vehicular homicide charges” and to a DUI charge.

Ed Miller Mug Shot

Sentencing is November 8.  He faces up to 5 1/2 years in prison.

The facts of the case carried some unusual twists.

Miller was out partying that night with Gabe Spiegel – a former Columbus television news anchor and personality.  According to news reports of trial testimony from the first trial, they met at 1:00 am at “Sloopy’s Pub” in Hilliard, Ohio, then went to Spiegel’s apartment at 2:30 before heading BACK out on the road to stop in at “Vanity” –  a after hours strip club with a “bring your own alcohol” policy.

On the way back from the strip club, sometime after 6:00am, Miller ran into the back of Steve Barbour’s bicycle, killing Steve.

Miller submitted to field sobriety tests, which he flunked, and a breath test which showed a BAC of 0.109%.  He challenged the alcohol tests in the first trial.  He also spent a lot of time “blaming the victim” in the first trial – claiming that Steve’s bike didn’t have lights [it did],  that they were not activated and that Steve was guilty of the crime of wearing “dark clothing.”

The plea deal spares  Mr. Barbour’s family the agony and stress of a second trial.  I expect that MANY local cyclists will be in the audience November 8 when the sentence is handed down.

Do YOU want to contribute your thoughts on sentencing to the Judge?  According to the Dispatch story, sentencing will be handed down by The Hon. Stephen L. McIntosh - you can send your letter to Judge McIntosh at the address in the link, as shown below.  Please reference:

State v. Ed Miller, Franklin County Common Pleas Court, Case No. 09CR4797

The “community’s” feelings about sentencing are certainly one thing judges are permitted to consider when crafting a punishment to fit the crime.  This is YOUR time to tell the court what you think of Mr. Miller’s now admitted crime.

You can send letters to Judge McIntosh at:

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

This case, which has taken a couple years to get to trial, is being very closely monitored by the cycling community.  Steve Barbour was a well-known cyclist, ride leader and bike advocate who was killed while riding to lead a Columbus Outdoor Pursuits ride.   Barbour had recently retired after spending 25 years as a Traffic Engineer!

Ed Miller, the motorist, had reportedly been out all night with local TV news personality Gabe Spiegel during the hours preceding the crash.  According to news reports of the trial testimony, they met at 1:00 am at “Sloopy’s Pub” in Hilliard, Ohio, then went to Spiegel’s apartment at 2:30 before heading BACK out on the road to stop in a “Vanity” a strip club that had a “bring your own alcohol” policy.

Miller drove from the strip club.  Spiegel said the two briefly discussed calling a cab but he felt confident that Miller was OK to drive.  Spiegel said he was “texting” at the crucial time yet was somehow aware that Miller was not speeding… He filled out a statement which is part of the police report.

There was much to discuss at the trial.  Miller’s alcohol consumption for one.  Spiegel played down alcohol, limiting Miller’s last drink to “sipping a vodka and tonic” from 3:15 to 5:15 am, when they quit watching strippers and left the club.  Yet, Miller blew a 0.109% BAC some one hour fifteen minutes after the crash at 7:15 am.  A forensic toxicologist testified that Miller’s BAC at the point of impact was 0.128%, well over Ohio’s 0.08% threshold be being legally intoxicated.  Miller has challenged the merits of this finding.

Police also testified that Miller failed the Field Sobriety Tests.  Miller disputes this as well.

The prosecution has presented evidence that Steve Barbour was a cautious, experienced cyclist with loads of safety equipment on the bike.  Miller says none of it was turned ON at the time of the crash and that Barbour was wearing dark clothing.  Miller puts the blame for the crash on the victim.

The 911 calls were certainly interesting.  I believe the defendant made two calls.  I’m not sure I have the first call, but the second call reflects a very “upright”  demeanor and tone – apologizing initially  to the 911 operator for hanging up the first time. You can hear sirens in the background. The 911 operator is getting impatient, demanding to know why he is calling…and then the caller states, out of the blue:  ”A Biker went out in front of me while I was driving down the road…”

wow… so THAT’s why he called- not to get help or express concern about the timing of the medical help – not to say that this man, Steve Barbour, who is dead or dying on the roadway, needs help… he called to begin to set up his defense…

That’s how I read/listen to it, anyway.  Why call back to 911?  You’ve reported the crash – asked for an ambulance. Your drinking buddy, Mr. Speigel, apparently also called 911.    Sirens are in the distance. Help is on the way. Yet you call back?  Why?  To provide more critical details to pass along to the EMT’s to help save this man’s life?  To express your frustration that the life saving folks have not yet arrived?

No, you call back to say, on the record, that the cyclist “went out in front” of you… to make the point–> “HEY EVERYBODY, it’s NOT MY FAULT”  Maybe the sirens triggered a panic response because the reality of police involvement was smacking you in the forehead?  You needed to express to someone that it was the cyclist’s fault, so you called the 911 operator back??

Alcohol testimony is always interesting.  I’ve done quite a few cases in which alcohol was a factor and I’ve had the opportunity to work with forensic toxicologists and to read some of the research and do some of the math.  Here it was pretty simple.  Mr. Miller allegedly blew a 0.109% BAC one hour fifteen minutes post crash, clearly exceeding the 0.08% BAC threshold for being illegally drunk while driving.  A Ph.D. toxicologist would likely say that assuming Miller had stopped drinking more than an hour prior to the crash, he was likely coming DOWN from whatever his highest BAC was.

If you took 10 people of different body size, men and women, some regular drinkers and some teetotalers, some who had dinner, some who had not eaten all day, for example, and gave each of them a shot of alcohol at the same time and then measured their BAC’s, you might find very different results.

Once they took in the alcohol, it would hit their systems and peak after an hour or so.  The body, though, wants to get RID of this poison.  The average rate for this elimination of alcohol is 0.015% per hour.  So if you drink, and wait an hour, you hit your peak BAC.  An hour later, your BAC goes down by roughly 0.015%.  So if you peak at .10%, after an hour you will still be at .085%. An hour later you’ll be at 0.07%, and so on [assuming you don't drink any more].

However, the body of a regular drinker develops the ability to get rid of this toxin, the alcohol, much quicker than the body of someone who doesn’t drink regularly.  In one case I handled, we had TWO blood tests and we were able to calculate the rate of elimination by comparing the two test results.  The drinker in my case had an elimination rate of 0.028% – almost twice the “average.” We confirmed during his deposition that he drank at a bar almost every night.

Here, Miller was apparently tested at 7:15 am and had a 0.109% BAC – over the limit –  making him legally drunk.  To find out what his BAC was at 6am, when he killed Steve Barbour, you would add .015% + [.25x.015%] to come up with roughly .128%, the figure used by the toxicologist in this case.

Miller filed three expert witness reports to challenge the alcohol results.    His experts include Alfred Staubus, Jay Zager and Thomas Workman. Each indicated a challenge to the alcohol evidence.

Miller never took the stand.  During closing his attorney pounded on the theme of “Wrong Time, Wrong Clothes, Wrong Place.”  I’m not quite sure what the point was – Steve was allowed by law to ride on the road.  There is NO law that mandates “bright” clothes.  There was evidence of lights and light usage, but that evidence was, at best, open to interpretation.  There was also a nearby bike trail and some believe the defense was intimating that Steve should have ridden on the path instead of the roadway.

I was asked to appear on WOSU radio with Ann Fisher on March 31, 2011 to talk about bicycling and the law as well as this case.  You can download the podcast here.

I’ll keep you posted!

Steve Magas

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…

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…