Why Negligent Drivers Who Kill Aren't Prosecuted
On Friday, April 11, 1997, a pedestrian was charged with using
a box cutter to slash the neck of a driver who nearly hit him
with his car at 40th Street and Seventh Avenue. The driver also
reportedly threw a bottle at the pedestrian. Revenge fantasies
notwithstanding, I expect that most NYC pedestrians and cyclists
would prefer that the police and District Attorneys protected
them front unsafe drivers.
Transportation Alternatives members often express disbelief as to
why drivers who kill and maim cyclists and pedestrians are almost
never prosecuted. The reason lies in a long series of court
decisions which make it nearly impossible to convict killer
drivers, especially if they were not intoxicated, but sometimes
even if they were.
On December 4, 1977, Diane Beiter (1) was driving at 60 mph in a
40 mph zone, (2) had been drinking in a dance club, and (3)
admittedly saw two pedestrians but did not slow down. She hit and
killed David A. Schifano. Nonetheless, the appellate
court wrote that "The area was dark and the road free of
other traffic, circumstances in which she could reasonably expect
that anyone crossing the road would see her headlights and
conduct themselves accordingly." (People v. Beiter, 1980).
With those words, New York State's Appellate Division ruled that
Ms. Beiter was not guilty of criminally negligent homicide.
Apparently, it was Mr. Schifano's responsibility to conduct
himself "accordingly" in the face of Ms. Beiter's
post-disco speed romp.
Such decisions are all too commonplace. In People v. Paris
(1988), the court ruled that a driver in Brooklyn who (1)
suddenly accelerated, (2) swerved left across oncoming traffic,
(3) ran up the sidewalk and (4) hit both a sign and a phone booth
was not guilty of the criminal homicide of his passenger because
the evidence that the driver was intentionally driving while
lying down was not clear.
On the other hand, the court noted that: "If the evidence
had established that, prior to his loss of control over the
vehicle, the defendantfor whatever reasonhad been
consciously driving his car from a recumbent position, so as to
be invisible to the witnesses, then his guilt of criminally
negligent homicide would be beyond question." New York's
pedestrians and cyclists should be heartened to know that their
death will be avenged if they are ever killed by an intentionally
supine driver.
Rulings such as these help to explain the reluctance of District
Attorneys to press homicide charges against drivers who kill. The
problem reaches back to People v. Eckert (1956), in which New
York's highest court stated that the conviction of a driver for
riminally negligent homicide cannot be based solely on excessive
speed. That decision led to a string of cases which often
presumed that a driver had to commit at least two simultaneous
and unrelated traffic law violations to be guilty of criminally
negligent homicide. This requirement is commonly referred to as
'The Rule of Two."
The Rule of Two was clarified and relaxed somewhat three years
ago in People v. Senisi, (1994), where an intermediate court made
it clear that a single traffic violation can be sufficient to
support a conviction if the circumstances warrant it. Excessive
speed might convict if there was also poor visibility or road
conditions. In Senisi, the excessive speed was the product of a
drag race.
Still, a driver can kill you after either running a red light, or
speeding, or failing to yield and not be convicted. Little
wonder, then, that police and DA's are hesitant to pursue such
cases.
But they still could do more. TA. interviews with crash witnesses
have also revealed that police often perform perfunctory
investigations of traffic deaths, ignoring evidence indicating
criminal negligence. Meanwhile, NYC District Attorneys can use
their political influence to convince the legislature to overturn
bad case law. Working in the most active pedestrian counties in
the United States, they should be leading the fight to protect
pedestrians, and cyclists, from unsafe drivers.
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Reprinted with permission
published by Transportation Alternatives, a
4,000 member New York City.area citizens'
group working for better bicycling, walking.
public transit, and fewer cars.