Friday, July 18, 2008

Doing Something About It

This morning's online edition of the Courier-Journal includes more details about yesterday morning's death of bicycle commuter Vance Kokojan, along with heart-rending notes from friends and a family member. The WAVE-3 TV story concluded that "(i)t just turns out to be a tragic accident," evidently because Metro Police have thus far chosen not to press charges. The Courier-Journal story gives a more accurate description, citing LMPD Officer Phil Russell: "Under state law police are limited in the traffic and misdemeanor charges they can file in the case of an accident they don't witness... If, however, an investigation determines a driver's actions are wanton or indifferent to others, the findings could be presented to the commonwealth attorney's office for possible action..."

Kentucky law places traffic infractions into three categories: traffic violations, punishable by fines and points against one's license; misdemeanors, also punishable by jail time; and felonies, punishable by extended sentences in a penitentiary. Most speeding violations, right-of-way violations, running red lights, and other common infractions fall into the first category. Traveling the wrong way on a limited-access highway or operating a motor vehicle using an expired license, for example, classify as misdemeanors. Felonies include vehicular assault, manslaughter, homicide, and DUI on a suspended license. A police officer can cite or arrest a person whom the officer has reason to believe has committed a felony, regardless of whether the officer witnessed the incident. For misdemeanors and traffic violations, though, the law does not allow officers to cite people for infractions not witnessed by the officer.

In the vast majority of traffic crashes, no officer witnesses the crash and no charges can be filed unless the police and prosecutor decide to pursue a felony charge. A felony charge requires that the prosecutor prove that the defendant's action was wanton, reckless, knowing, or intentional. Each of these "states of mind" has its own legal definition, and each felony charge rests on a particular state of mind. Murder, by definition, is an intentional act. Wanton endangerment, by definition, requires "extreme indifference to the value of human life" but not an intention to harm the victim.

Bottom line: Police and prosecutors need to decide whether to charge an errant driver with a felony that would land the driver in the penitentiary, or not to file any charges at all. As we see time after time when bicyclists and pedestrians are killed by drivers, they usually choose the latter option, except in cases of DUI or hit-and-run. The law currently offers no middle ground.

Bicycling for Louisville has launched a campaign, Focus On The Road, to change this. Our proposed law, now being drafted by a legislative staffer, would do two things to plug this loophole and hold bad drivers accountable for injuring or killing vulnerable roadway users - bicyclists, pedestrians, equestrians, and road workers. First, it would more clearly define the driving behaviors that constitute felony recklessness. This would allow prosecutors to win felony cases more easily when drivers injure or kill a vulnerable roadway user while driving recklessly. Second, it would specifically allow law enforcement officers to cite motorists for non-felony infractions that the officer did not witness if those infractions resulted in injury or death to a vulnerable roadway user. The officer would issue the citation based on other acceptable forms of evidence such as physical evidence and eyewitness testimony.

Check our website for more information on the Focus On The Road campaign. Check back for updates, including why we chose this approach and how you can help us get the bill passed. When we have a complete draft of the bill, revised with advice from our legal team, we will post it on our website.

Holding drivers accountable for deadly driving will help us make the roads safer for all users.

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