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Friday, October 24 2014 @ 07:45 AM UTC
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Bill to create new crime of negligent homicide by vehicle clears major hurdle in Maryland House Committee

Bike Laws

In the Maryland General Assembly, House Bill 363 (Manslaughter by Vehicle or Vessel, criminal negligence) unanimously passed the House Judiciary Committee, with amendments. The bill would create a new crime of negligent homicide by vehicle or vessel, with a maximum term of three years.

The existing crime of manslaughter by vehicle requires proof that the defendant consciously disregarded a substantial risk of killing someone. Except for drivers who were either drunk or at least 30 mph faster than the speed of traffic, no one has been convicted unless a witness at trial testified as to the driver’s state of mind, which makes it impossible to convict most solo drivers.

For further details, please see WABA’s testimony.

Maryland is one of only a handful of states where a conviction for vehicular homicide is so difficult. Under House Bill 363, it will be possible to convict a defendant who should have known there was a risk of killing someone, without proving that the defendant actually knew about the risk.

Passing the House Judiciary Committee is a major milestone. The bill has been introduced each of the last seven years, but never brought to a vote, due to the opposition of Judiciary Committee Chairman Joseph F. Vallario (D-Prince Georges).

If you live in Maryland, please call your delegates and ask them to support the bill.  Even if you only get their staff, calls make a much greater impression than emails. But emails are certainly worthwhile if you can only find the time after business hours.

Please act as soon as you can, because bills move fast this time of year. The amended bill has not yet been posted. In the next few days, we will provide an update on the amendments and what we need to do next.

(The author, Jim Titus, is a Member of the WABA Board of Directors and resident of Prince George’s County, MD.)

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HB363 on the Judiciary Committee Vote list -- Your immediate help is needed!!!

Bike LawsUpdate: Bill to create new crime of negligent homicide by vehicle clears major hurdle in Maryland House Committee
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Panel rejects tough drunk driving bill

Bike Lawsfrom Getting There by Michael Dresser

The House Judiciary Committee live up to its reputation as the graveyard of strong drunk-driving legislation last week as it killed a bill that would have increased penalties for refusing to take a blood-alcohol test for a second time. The bill would have allowed a $1,000 fine or up to a 12-month jail term for such a refusal.

The bill was one of the primary objectives of anti-drunk-driving activists during this legislative session and won the endorsement of police and prosecutors.

The committee rejected the measure on a 12-7 vote.
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Vulnerable users "bike bills" making progress in WA and NM; mixed results in MD

Bike LawsThe Maryland measure, House Bill 363, is apparently stuck in the House Judiciary Committee because chairman Joseph Vallario Jr. doesn't like the bill.

http://www.bikingbis.com/blog/_archives/2011/3/7/4745296.html
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Alert: 4,800 People Join to End Maryland's Reckless Driving Loophole

Bike Lawsby Jess Leber

One state lawmaker calls Maryland's lack of a vehicular manslaughter law "a cosmic absurdity."

For grieving families and friends of vehicular manslaughter victims, the law is simply tragic.

Almost 5,000 people have joined Kenniss Henry, a Maryland mother who is still mourning her only child's death last September, in calling on the Maryland legislature to revise the law. As it stands now, a criminally-reckless driver faces no more than a traffic violation for killing another human being. Even if the driver is flouting the speed limit. Or edging too close to a cyclist. As long as he is not drunk, he will likely not face criminal charges.

This week, Ms. Henry wrote a note to signers of the petition: "Thank you for all of your support. There are no words to express how much this means to me, and how much it would have meant to my daughter." The support has really flowed, and a number of state legislators have noted the emails they've received from their constituents via Ms. Henry's petition. The document at the bottom of this post shows just some of the personalized comments left by Maryland residents when they signed, expressing the many reasons why this law should be passed. Some have also seen loved ones killed or injured.

If you haven't signed yet, you can add your name here.

Ms. Henry was among 21 people who testified for the bill at a committee hearing in February. Others who testified in its support included other victims' relatives, a mayor, both state and private practice attorneys, regional cycling advocates from Maryland and DC, and a former state legislator who once sat on the very same committee. (Read more on Bike Maryland's website).

Kenniss Henry is relative new to this fight. Adiva Sotzky, on the other hand, has been at it for six years, ever since a distracted driver killed her husband while he was on his motorcycle. Ms. Sotzky has been leading the charge and is very familiar with the ways previous versions of this bill have stagnated in the House of Delegates.

Both Ms. Henry and Ms. Sotzky say the hearing went extremely well, but that doesn't necessarily mean much. For seven previous years, the bill has stagnated in the committee without ever even coming up for a vote.

The best thing to be done right now is to make sure Maryland's House delegates have the chance to pass this important legislation. They have to do it before April, when this year's session is already over.

If you live in Maryland, will you directly email or call House Speaker Michael Busch? Tell him you support H.B. 363 -- the Vehicular Manslaughter Act -- and want to make sure it gets out of committee this year for a full vote. Make sure you've signed the petition, then tell him you've already emailed your delegate about the bill.

Email: michael.busch@house.state.md.us

Phone: (410) 841-3800 or (301) 858-3800

As Kenniss Henry says: "I never really been involved in lobbying for legislation at this level—trying to move something from where it is to where it needs to be. I was very moved by the hearing, and I was honored to be a part of this group. ...I have met advocates who lost family members as far back as seven years ago and I know that you agree, seven years is long enough."

Sign the petition and—if you live in Maryland—make the phone call above.

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MADD not impressed by Vallario drunk-driving bill

Bike Lawsfrom Getting There by Michael Dresser

...
MADD supports legislation that would make installation of such devices mandatory for all those convicted on driving under the influence. Such a bill passed thhe Senate last year only to die in the Judiciary Committee when Vallario declined to bring it up for a vote.
...
Cash said she had at first been encouraged when she heard Vallario was proposing his own bill. But once interlock proponents read the full bill, they realized there was nothing mandatory about it, she said.

MADD supports a bill called the Drunk Driving Elimination Act, sponsored in the Senate by Sen. Jamie Raskin and in the House by Del. Benjamin F. Kramer, both Montgomery County Democrats.
...
The Vallario bill would require drivers who are found to have a blood-alcohol content of 0.15 percent or more -- or those who refuse an alcohol test -- to enter an ignition interlock program in order to avert a driver's license suspension. But Cash said that is no more than drivers are permitted to do now, adding that many drivers simply accept the suspension but continue driving anyway.

Vallario's role is crucial because as chairman he can prevent any bill he opposes from getting a vote in committee. In practical terms only the speaker, who appoints committee chairs, has the authority to tell him to bring a bill to a vote.
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Auto manslaughter bill draws emotional testimony

Bike Lawsfrom Getting There by Michael Dresser
Widows and parents of Marylanders who were killed on the state’s roads pleaded with state lawmakers yesterday to give the victims of future traffic crashes a measure of justice they believe was denied their family members under the state’s difficult standard for holding drivers criminally accountable for fatalities.

In an emotionally charged hearing before the House Judiciary Committee, survivors of crash victims urged passage of a bill that would create an intermediate offense between traffic charges a defendant can pay be mail and a full-blown prosecution for felony manslaughter.

The bill under consideration would create a misdemeanor offense known as “manslaughter by vehicle or vessel – criminal negligence” – with a potential penalty of three years in prison and a $5,000 fine.

Though the support from more than 20 witnesses was virtually unanimous, the bill’s sponsor was far from optimistic about its prospects. He noted that for many years virtually identical bills have been brought before the committee only to die without a vote in the drawer of Chairman Joseph F. Vallario Jr.

That history brought the most dramatic moment of the hearing as Ed Kohls, a Reisterstown man who lost his 15-year-old son Connor in a crash that resulted in a $1,200 fine for the reckless driver who killed him, expressed his anger directly to an impassive Vallario, a Prince George’s County Democrat.

“We are furious that this bill has not been allowed to come to a vote,” Kohls said. “It seems that you are telling us that Connor’s life is worth noting more than $1,200.”

Kohls was joined in supporting the bill by grieving survivors including Weida Stoecker, a northern Baltimore County woman whose husband was killed by a negligent 17-year-old driver in 2007, and Lori Moser, widow of a State Highway Administration worker whose husband was killed at a work zone near Fredrick that same year.

The drivers found to be at fault in both cases resolved their cases by paying traffic fines.

Also testifying were Tamara Bensky of Owings Mills and Kenniss Henry of Prince Georges County, whose husband and daughter respectively were killed by motorists while bicycling.

Bensky choked back tears as she told lawmakers about her final, routine goodbye to her husband, Larry Bensky, last April 6, the day he was hit and killed while bicycling along Butler Road in Baltimore County.

"Never in a million years did I think I would end that day as a widow -- a mother alone with two little girls," she said. Bensky told the panel the driver of the vehicle that killed her husband paid a fine of $507.50 for traffic charges and received three points.

Also supporting the bill are prosecutors, bicyclists’ advocates and AAA Mid-Atlantic.

The challenge for lawmakers has been to find a formulation that gives prosecutors a tool to go after drivers whose driving lapses are more serious than typical traffic offenses but that do not rise to the level of “wanton and willful disregard for human life” – a standard that courts have restricted to cases involving drunk driving or extreme speeding.

“This is an impossibly high standard to meet in many prosecutions,” said Del. Luiz R. S. Simmons, the bill’s lead sponsor and a Montgomery County Democrat.

Simmons said his legislation explicitly states that common negligence alone would not be grounds for prosecution under the proposed statute. He said his bill would create a standard he called “substantial negligence” – defined in the bill as “a substantial deviation from the standard of care that would be exercised by a reasonable person.”

Simmons said Maryland’s current law is more lenient on drivers at fault in fatal cases than all but a handful of states. He said the language he is proposing has been in the books in 27 other states – including New York, Texas and Connecticut – for many years without being abused by prosecutors.

Despite the overwhelmingly favorable testimony on the bill, Simmons seemed pessimistic about the outcome.

“I don’t have any false illusions,” he said.
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Contributory Negligence

Bike LawsFrom the TheLegislative Wrap-Up

Maryland’s current common law doctrine of contributory negligence standard bars a plaintiff from receiving any damages for an injury if the plaintiff’s own negligence contributed in any way to the harm. Maryland is one of five jurisdictions, along with Virginia, Alabama, North Carolina, and the District of Columbia, that retains this doctrine. Forty-six states follow the doctrine of comparative negligence, under which a plaintiff’s recovery can be reduced if the plaintiff was partially at fault. The Maryland Judiciary recently began a study regarding the process and consequences of changing the Maryland standard from contributory negligence to comparative negligence through judicial action.

An emergency bill, The Maryland Contributory Negligence Act (HB 1129), codifies the contributory negligence standard so that it remains an affirmative defense that may be raised by a party being sued for damages for wrongful death, personal injury, or property damage.
*************************************************************************************************************************
This is sort of the official summary of the Legislative Session so far. I find it a bit strange that this got coverage and our HB 363 “Manslaughter by Vehicle or Vessel – Criminal Negligence did not.
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Maryland Contributory Negligence Statute

Bike Lawsfrom Maryland Injury Lawyer Blog

I reported here last year that the Maryland Court of Appeals - or at least Judge Bell - is looking at whether the Maryland high court should adopt comparative negligence in Maryland. Republicans in the Maryland House of Delegates are trying to beat the court to the punch by introducing House Bill 1129 which would make contributory negligence codified Maryland law.

To my knowledge, I don't think any state in recent history has codified contributory negligence.

Take action: http://www.baltimorespokes.org/article.php?story=20110223135459843
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Action: Emergency Bill Contributory Negligence for defense of wrongful death or injury by at fault drivers

Bike LawsOr let me state the bill more simplistically. At fault drivers "need" a easy defense to get out of paying any damages at all.

Yes you are reading that right, people at fault in a traffic "accident" can get away with murder. And the sponsors of this bill want to see more people get away with murder.


Examples of why we don't like contributory negligence:

A Richmond, Virginia jury awards no damages to a 23 year-old pedestrian who was hit by an F-150 truck while walking on the sidewalk. The jury found the Plaintiff contributory negligent because she was singing while she was walking.
http://www.baltimorespokes.org/article.php?story=20110222101857474

Montgomery County Circuit Court awards no damages to a cyclist who hit a left turning truck that violated the cyclist's right-of-way. The cyclist was contributory negligent because they hit the back part of the truck.
http://www.baltimorespokes.org/article.php?story=20090726190123851


What we do support is comparative negligence which is basically if a damaged party is 1% negligent they lose 1% of the damages. This is vastly more fair and just then losing all damages under contributory negligence and is followed by 90% of the United States in one form or the other.

****************************************************************************************

House Bill 1129 states (in part):

(B) CONTRIBUTORY NEGLIGENCE SHALL REMAIN AN AFFIRMATIVE DEFENSE THAT MAY BE RAISED BY A PARTY AGAINST WHOM A CLAIM IS MADE FOR DAMAGES FOR WRONGFUL DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE.
...
http://mlis.state.md.us/2011rs/bills/hb/hb1129f.pdf

****************************************************************************************

There is little doubt in my mind that this bill is the result of issues raised in this story: http://www.baltimorespokes.org/article.php?story=2011011613561368

There is a group behind this that is difficult to find out just who they are but with some detective work here http://www.baltimoreinjurylawyerblog.com/2009/03/whats_a_frivolous_lawsuit.html we find a former political lobbyist (representing big corporate interest?), a doctor sued for medical malpractice, the owner of a failed local insurance company, an attorney in Annapolis, an owner of a national chain of camp resorts and a owner of a risk management for business. And they call themselves, get this, Maryland Citizens Against Lawsuit Abuse. The link in this paragraph has more info on the absurdity of that title and I quote from that article "Personally, I would be suspicious of any group that seems to conceal its leaders and true agenda."

There is also a battle of sorts between the courts and the legislature going on here. Judge Bell wants a study that I will summarize as "What are the best legal practices in awarding damages? And can the court adopt such best practices as a rule?" (Implied without the legislature taking action.) And then there is this statement attributed to Judge Bell (if I am reading it right) "Maryland's contributory negligence rule is a common law rule. Arguably, the legislature's failure to act is not approbation of contributory negligence." So to summarize the sponsors of this bill are afraid that contributory negligence will not be found to be the "best practice" by the study and want to prevent the court from taking any action based on that study. Personally I find that rather damning of the sponsors of the bill.

I am appalled at the number of Delegates that have signed on in support of this and how few have supported House Bill 363 - “Manslaughter by Vehicle or Vessel – Criminal Negligence. If indeed our legislature is impressed by Citizens Against something and grassroots motivation then we need to send a clear message "We are Maryland citizens and not big corporate interests. We are truly grassroots and our only "profit" is seeing the all Maryland citizens being protected by fair and just laws laws.

****************************************************************************************

*** Take action ***
And write your Representative to oppose House Bill 1129 - Maryland Contributory Negligence Act , especially if they are one of the sponsors:
Delegates Kramer, Bates, Beitzel, Bromwell, Carter, Costa, Dwyer, George, Jameson, Kach, K. Kelly, Kipke, McConkey, W. Miller, Norman, O'Donnell, Vitale, Weir, and Wood

To find your Representative: http://mdelect.net/electedofficials/

Is it really too much to ask that Maryland follow what the rest of America finds fair and reasonable for at fault drivers to pay for the damages that they cause?

All this bill does is protect at fault drivers from paying damages to people they kill or injure.

****************************************************************************************

Additional argument:

It has been said that contributory negligence is intended to discourage negligent behavior that causes accidents by denying recovery to those who fail to use proper care for their own safety.

Which is really an unfair summary of how contributory negligence works. But I ask what then is the deterrent to unlawful behavior that is over 51% the causes of the accident in the first place? Seriously, what's more important to discourage, driving your pickup on the sidewalk or singing while walking? And again, what's more important to discourage, trucks failing to yield the right-of-way or cyclists that decide they rather hit the back of the truck over getting run over by the front of the truck?
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