AAA supports HB 363 but Senator Frosh is not so sure (Manslaughter by Vehicle or Vessel - Criminal Negligence)
Wednesday, March 30 2011 @ 12:32 AM UTC
Contributed by: B' Spokes
Frosh: Already approved by the House, a bill that would change the law now is in the Senate Judicial Proceedings Committee, which Frosh chairs. He says the rush of Senate business has kept him from reading it. He plans to hold a hearing next week but isn’t sure whether he will ask the committee to vote on it. “It depends on what the bill says,” Frosh said, “and whether it can be fixed and whether they can thread the needle.
B' Spokes: So to be fair he has not read the bill yet so this may be a bit of an over reaction but still his concerns necessitate a response.
Frosh: Proponents jubilation at House passage of the bill has been tempered by comments from Sen. Brian E. Frosh, chairman of the Senate Judicial Proceedings Committee, expressing concerns that the law could be used to jail people over unintentional driving errors.
HB 363: IT IS NOT A VIOLATION OF THIS SECTION FOR A PERSON TO CAUSE THE DEATH OF ANOTHER AS THE RESULT OF THE PERSON’S DRIVING, OPERATING, OR CONTROLLING A VEHICLE OR VESSEL IN A NEGLIGENT MANNER
B' Spokes: Simple negligence still exists and is purposefully excluded in this bill to address that concern. This bill fills the GAP between simple negligence and recklessness.
Frosh: Sen. Brian E. Frosh, chairman of that panel, expressed misgivings about creating an offense carrying a jail term for conduct that was negligent but not intentional or reckless.
HB 363: THE PERSON SHOULD BE AWARE, BUT FAILS TO PERCEIVE, THAT THE PERSON’S CONDUCT CREATES A SUBSTANTIAL AND UNJUSTIFIABLE RISK THAT SUCH A RESULT WILL OCCUR; AND THE FAILURE TO PERCEIVE CONSTITUTES A SUBSTANTIAL DEVIATION FROM THE STANDARD OF CARE THAT WOULD BE EXERCISED BY A REASONABLE PERSON.
B' Spokes: Really, someone that drives without the standard of care that would be exercised by a reasonable person and KILLS someone should no way, no how, in all circumstances never face jail time?
Post: “For someone to demonstrate ‘substantial negligence’ is higher than ordinary negligence but lower than gross negligence,” Simmons said. “At one point I estimated that there were 30 to 40 [vehicular] homicides that prosecutors wanted to prosecute but couldn’t under today’s high standard.
Frosh: But Frosh said he's concerned about imposing harsh penalties on drivers who may have killed others as a result of "split-second negligence." "Our jails are bursting right now," he said. "To me the jails are a place for people who have done something that is intentional."
HB 363: A PERSON WHO VIOLATES THIS SECTION IS GUILTY OF A MISDEMEANOR AND ON CONVICTION IS SUBJECT TO IMPRISONMENT NOT EXCEEDING 3 YEARS OR A FINE NOT EXCEEDING $5,000 OR BOTH.
B' Spokes: Split-second negligence??? Cute misdirection but what is he saying? It's perfectly fine to take a split second to send a text message thus missing a red light and then killing people as a consequence? Frosh seems to keep referring to simple negligence and the penalty for that is still $500 max.
Post: To Frosh, that new standard could be applied to the mother who fatally hits a bicyclist when she takes a glance at a crying child in the back seat of her minivan
B' Spokes: First I would like to point out that Frosh has NOT read the bill so his assertion that a glance back is more then simple negligence may not be valid. Next, as a father of five we have ALWAYS pulled off the roadway to deal with the kids. I take exception to the assertion that a mother HAS to be distracted for a split second to deal with kids. As always we trust the courts and juries to do the right thing, if we throw that out the window there is no point to making laws.
|Descending order of culpability in manslaughter||Simple definition||Explanation||Fines|
|Currently Maryland only has this||Manslaughter||Reckless, gross negligence||High risk and driver knows there is a high risk of death.||Felony, imprisonment not more then 10 years or not more then $10,000 or both.|
|HB 363.will establish this||Negligent homicide (model penal code version)||Substantial deviation from standard of care||High risk and driver should know there is a high risk of death.||Misdemeanor, imprisonment not more then 3 years or not more then $5,000 or both.|
|NOT HB 363||Negligent homicide (2 states and DC)||Simple negligence; any deviation from standard of care||Driver does something where the possible risk times the likelihood of death was greater than the benefits of doing so, and death results.|
B' Spokes: Jail time - We have jail time for for selling cars without a licence for crying out loud but when it comes to driving in a KNOWN (or should be known) risky way that ends up killing someone, well we'll just let that go unchecked because it was not intentional, seriously? (I will also assert one major reason why risky behavior may not seem intentional is because the MVA does such a terrible job in educating drivers about driving risks with only a 20 question test. (Other States have 100 question test.)) But at the end of the day we have to trust the courts and the juries to use this tool properly, we may never see any jail time even for the most grievous of cases as there is nothing mandatory about jail time.
B' Spokes: Maximum punishments are there to cover the first time very, very close to recklessness cases. They are also there to cover repeat offenders, in spite of getting numerous tickets, there are some people that still engage in risky behavior that will sooner or later end up killing someone.
Frosh: Frosh said somebody who kills another through automotive negligence can face harsh consequences in civil lawsuits. "You can lose your house for that. You can lose your kids' college fund," he said.
B' Spokes, In Conclusion:
In 2007 The Judicial Proceedings Committee (Frosh was the Chairman) failed to bring to a vote SB 267 "the fact that a plaintiff may have been contributorily negligent may not bar recovery by the plaintiff" which means being contributorily negligent by just 1% a plaintiff can be bared from recovery of ANY AND ALL damages is still on the books and does come up on occasion.
So apparently Frosh wants it both ways, no serious misdemeanor charges AND no civil damages either. Not to mention in civil cases it is often the insurance that pays, not the driver. This is simply not right and in most states, drivers who kill can be charged with negligent homicide, if their driving is a flagrant violation of the duty to drive carefully—even if there is no proof that the driver realized they might kill someone AND on top of that most states allow civil damages based on comparative negligence (or something similar.) The loophole in Maryland is that there is no such crime and civil remedies are denied, is it any wounder that The 2010 “Allstate America’s Best Drivers Report™” has DC and Baltimore dead last?
Note: I am sending this to Frosh to see if he would like to comment.
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