How we deal with crashes

A newspaper story of a tragic, fatal bike-car crash in Boulder, CO raised some painful contrasts between Boulder and Louisville (Kentucky, not the Louisville in Colorado). The bicyclist, Casey Najera, was riding southbound through an intersection, with the right of way, when a motorist traveling northbound turned left across Najera's path. Najera hit the car and was killed. The motorist said that she did not see the bicyclist and "was terribly upset about the accident," according to her mother.

One could remove all town names and geographic references from the article and know that the crash had not happened in greater Louisville, KY. First of all, the driver was cited with careless driving resulting in death. Colorado Revised Statutes 42-4-1402 defines this as a class 1 misdemeanor. This carries a penalty of 6-18 months in prison, a fine of $500 - $5000, or both. Kentucky law, as best I can tell, has no similar charge. Besides, Kentucky law requires the police to witness the crash before issuing a citation or making an arrest for anything short of a felony. Any media report of a bike-car fatality in greater Louisville hedges about whether charges will be filed, because the only hope for filing charges rests on results of toxicology tests. The Colorado newspaper story gave a different picture: "[The motorist] was cited by police for careless driving resulting in death." The driver did something unacceptable and stands to get punished for it.

I found even more startling the reader responses to the online story. All of them spoke of the tragedy of the bicyclist's death. None ranted against the driver or "the system." None attempted to blame the bicyclist or suggested that bicyclists should stay off the roads for our own good. These reader comments contrast shockingly with those that swarm like flies at the end of any Louisville KY online news story of a bike-car crash.

The news story ended with mention of a recent bike-car crash resulting in a bicyclist's injury, and two fatal car-bike crashes earlier in the year. Yet neither the reporter nor any of the comment writers felt a need to declare an epidemic of bicyclist injuries and deaths or make any sweeping statements about the dangers of bicycling. I guess that the newspaper readers of Boulder, Colorado see bicycling as a good and ordinary activity that sometimes results in crashes, injuries, and deaths. Folks here in Louisville, KY seem to feel that way about driving cars, but not about riding bicycles.

Health and crash data paint a clear picture: the benefits of bicycling vastly outweigh the risks. Here in greater Louisville, we continue to read and hear opinions that bicyclists should, "for their own good," stop riding on streets and rural roads. I hope to live to see the day when anyone stating that opinion will be viewed as a crackpot. In other words, I want the public at large to view bicycling on streets as normal and appropriate. Then, we might have a bicycle-friendly community.

One cyclist dying, another injured

Jennifer Futrell, the 27-year-old woman struck by a minivan on Bardstown Road on Tuesday is close to death of her injuries. An e-mail message circulated this morning prematurely announced her death. I was with her and her father in her hospital room a few minutes ago. She never regained consciousness after the crash. Her family and the medical staff expect her to die within hours due to brain injuries sustained in the crash. She would be the third bicyclist killed by a crash with a motor vehicle in Louisville thus far in 2008. This would match Louisville's worst recent one-year bicyclist death toll. At least two of these bicyclists were killed while doing nothing wrong. I feel terribly sad, but anger will rise to the top soon.

Yesterday at about 6 PM, another driver struck another cyclist from behind, this time on East Broadway. To the extent that one can find good news in such a story, this latest incident has some. According to the Courier-Journal report, the bicyclist's injuries appear not to be life-threatening. In spite of fleeing the scene, the motorist was apprehended by police and charged with DUI, leaving the scene, and drug-related and other offenses. The involvement of alcohol, drugs, and hit-and-run make this driver easy to arrest and prosecute. Kentucky law specifically allows police officers to arrest people for DUI or hit-and-run without having witnessed the incident. This driver will not likely escape punishment.

Jennifer's family has had good legal help since immediately after the crash. They will choose whether to file charges against the driver who hit their daughter. A security camera video and numerous eyewitness accounts provided enormously more information than usually available about a traffic crash. While respecting their choice and the choices of other grieving families of crash victims, we need to reform the attitudes and legal structures that fail to hold impatient, distracted, incautious drivers accountable for their deadly actions as long as they commit them while sober. Lives are on the line, every day.

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.