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 defendant—for whatever reason—had 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.


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.

Go back to the main propoganda page