Saturday, February 07 2009 @ 08:37 AM UTC
Contributed by: B' Spokes
Below is some background information, written by and used with permission of Dr. Barry Zalph, Expectative Director of Bicycling for Louisville, about Kentucky House Bill 88. Barry and the staff of Bicycling for Louisville and several attorneys drafted HB 88 which will create the new law of "Vehicular Assault of a Bicyclist or Pedestrian." I've included a link to the HB 88 and a link to allow you to contact members of the Kentucky Legislature to express your views about the bill. I would also be interested to hear your comments and answer any questions you may have about HB 88. E-mail your comments or questions to me at RMLCI at aol dot com. The link to HB 88 is: http://www.lrc.ky.gov/record/09RS/HB88.htm
and the link to contact Kentucky Legislators is: www.lrc.ky.gov/Legislators.htm
Here's some background:
As in many (but not all) other states, Kentucky law generally does not allow law enforcement officers to issue citations or make arrests for non-felony traffic violations not witnessed by the officer. Kentucky law makes exceptions for DUI and hit-and-run. Felony charges are very rarely leveled against drivers unless alcohol or drugs are involved and a fatal or crippling injury results. Because most crashes occur when no officer is on hand to witness them, criminal charges are rarely filed in connection with the crashes. This means that a bicyclist can be obeying all of the traffic laws and minding her or his own business, get crippled or killed by a reckless driver, and have no legal recourse except through a lengthy civil (lawsuit) process. The news accounts say, "No charges will be filed," giving the impression of a tragic accident for which nobody is at fault. This is equally true if physical evidence and eyewitness testimony shows that the driver was speeding, passing illegally, failing to yield right of way, running a red light, etc. at the time of the crash. From a public policy perspective, the lack of enforceable criminal penalties sends the message that these crash-causing driving violations are of no concern to the Commonwealth, and that it is merely a private (civil) matter for the involved parties to resolve among themselves. This helps to perpetuate the attitude that Kentuckians' convenience as car drivers trumps any responsibility that they have for the safety of other road users - as long as the driver is not intoxicated.
The central portion of our bill creates a new offense, vehicular assault of a bicyclist or pedestrian, defined as a vehicle operator (and yes, this can be a bicyclist as well as a motorist) hitting a bicyclist or pedestrian while operating her or his vehicle in a reckless manner. Reckless, according to long-standing Kentucky law, means a combination of two things: 1) failing to avoid a substantial and unjustifiable risk; and 2) grossly deviating from the standard of care exercised by a reasonable person under those conditions. To convict someone of this crime, the prosecutor would need to prove recklessness. This provides a large degree of protection for vehicle operators who hit someone through little or no fault of their own. Our bill would specifically empower law enforcement officers to issue a citation or make an arrest for this crime on the basis of "probable cause," another well-established legal term that means good reason to believe that the person committed the crime, regardless of whether the officer witnessed it. This means that if an officer arrived at the scene of a car-bike or car-ped crash, looked at the evidence, and had strong reason to believe that one party to the crash caused it by driving recklessly, the officer could charge that person with vehicular assault of a bicyclist or pedestrian. In my opinion, this charge would have been appropriate in three of the four most recent car-caused bicyclist fatalities in Louisville. Under current law, no charges were filed in any of those cases.