Vehicular Negligent Homicide: Illegal in Maryland Starting October 1

from TheWashCycle by Jim Titus
Yesterday both houses of the Maryland General Assembly approved the amended House Bill 363, which creates a new crime of negligent homicide by vehicle or vessel. Passage of this bill culminates a 7-year effort led by Delegate Luiz Simmons (D-Rockville) and the families of victims killed by negligent drivers.

Under the existing law, drivers who kill have only been convicted of vehicular manslaughter if they were drunk, drag-racing, or clearly knew that their driving might kill someone. Under the new law. drivers who should know that their driving could kill can be prosecuted for negligent homicide, with a maximum term of three years. The Governor has indicated that he will sign the bill.

We can attribute the success this year primarily to the perseverence of Delegate Simmons and several people who dedicated themselves to ensuring that something good came out of the trajedy that befell them. I won't try to name them all, but Adiva Sotzsky deserves credit for engaging the bicycle community. She and Ed Kohls simply would not give up. Keniss Henry's involvement added an extra degree of urgency to the matter within Prince Georges County after the death of her daughter Natasha Pettigrew, which is still under investigation. We also credit Senator Brian Frosh (D-Bethesda) for sharing his skepticism in a transparent fashion, which enabled proponents to address his concerns before the hearing in his committee. Realistically, there would not have been time to address them after the hearing. Bike Maryland and AAA supported the effort for several years before WABA became involved.

But with all of their great work, this bill still would not have passed this year had the Washington area cyclists not stepped forward. As always, you sent emails. But this time you also called your Senators—more than once in many cases. You asked your friends to call the key Senators—and they did. You handed flyers to people in public places and spoke with them about the importance of contacting their Senators. And they did. And the Senators got the message. They allocated enough in their hectic schedules to learn enough so they could be confident in supporting this bill that arrived so late in the session. That is no small accomplishment because a responsible legislator does not create a new type of homicide lightly.

We have no illusions that making negligent homicide a crime will make our roads safe. Many forms of bad driving remain legal, many forms of illegal driving go unenforced, and many drivers are undeterred by enforcement. The subtext that enforcement is worse than the crime will continue in some places. But Maryland has removed the most offensive blemish of all from its transportation legal system—the idea that killing a human being has no legal consequence. Now it will.

(Jim Titus is a member of WABA's Board of Directors from Prince Georges County, Bike Maryland's legislative task force, and the Maryland Bicycle and Pedestrian Advisory Committee (MBPAC) The opinions stated herein do not necessarily reflect the offials views of WABA, Bike Maryland, or MBPAC.)

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Update on HB 363 - The hardest thing to do: get attorneys to agree on the correct language

This just in from one of our members:

"I spoke with David Brewster, an aide to Sen Frosh. According to David, Sen Frosh would vote for the bill with the one word change in (C) (2) the failure to perceive constitutes a (substantial) GROSS deviation from the standard of care that would be exercised by a reasonable person. However, David indicated that the State's Attorneys do not accept the change."

So now we understand better why the support and then the lack of support has happened. Stay tuned while folks try to work this out but time is running out for legislative session (April 11, 2011.)

(And lets hope this is not a case of covering ones rear end.)

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2011 Ride on Annapolis photos

First off major kudos for those who rode down in the middle of the work week. Maybe we should ask for everyone to plan for next year and reserve a "vacation" day for the second week in April, just a thought, comments welcomed.

The best picture of the folks that road down is in the Sun

Thanks to Light Street Cycles for the following photos and we do recommend liking them on Facebook and patronizing them (that's where I got my bike which I totally adore.)

Green bike parking
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Carol Silldorff doing her th'ang
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Some of the supporters of the bill
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Where to chill before heading home
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Frosh says no to HB 363

from TheWashCycle by washcycle

This is one of those frustrating things about democracy as it is practiced. The Maryland house passes a bill unanimously, and the Senate would probably pass it and the governor will surely sign it, but one person - a single member of the Senate - is able to kill the bill. Bike Maryland reports

HB 363 passed in the House Chamber and the bill is now in the hands of the Senate Judicial Proceedings Committee. We have strong support from many members of the Senate Judicial Proceedings Committee.  However, Bike Maryland, along with other advocates, met with Senator Frosh, Chair of the Judicial Proceedings Committee, who informed us that he does NOT plan to let the bill out of Committee which means that the bill will NOT become law. If you live in Senator Frosh's District (Montgomery County) it is crucial that you please call his office and state that you are a constituent and want him to let this bill out of committee. Senator Frosh - brian.frosh@senate.state.md.us; 1-800-492-7122, ext. 3124.

Here's a roundup of coverage of the bill.

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Can we answer Senator Frosh’s Questions in Time?

[B' Spokes: The question for Baltimore is if we can get Senator Lisa Gladden (D), District 41(410) 841-3697 to understand HB 363 and to talk with Frosh that yes indeed we have addressed his concerns. I saw a headline along the lines of "If AAA and Bicycle Advocates Support the Same Thing, Who Is The Opposition?" In short the opposition is just not understanding what this bill will do and Jim has some good examples from case law of what will and what will not fall under this law. Those that feel they have a good understanding of the issues and live in district 41 please call Senator Gladden (410) 841-3697 and talk to her or her aide that is handling HB 363 Manslaughter by Vehicle or Vessel - Criminal Negligence and see if she can talk to Senator Frosh. (Additional information here. The hearing is set for 4/6.)]
From WABA:

Thanks to the WABA members, WABA staff, Bike Maryland,  AAA, Baltimore Spokes, Adiva, and others for all of your work on HB 363. Our initial elation of finally passing the bill in the House of Delegates quickly gave way to apprehension that getting the bill through the Senate Judicial Proceedings Committee this year is an uphill battle because there is so little time. Your efforts this week have persuaded a couple of Senators who were initially undecided. But Committee Chairman Brian Frosh (D-Bethesda) is skeptical.

Fortunately, Senator Frosh has been very open and transparent about his skepticism, making it possible for us to at least try to address his concerns. Right now, someone can only be convicted of vehicular manslaughter if they know that their driving creates a substantial risk of killing someone; under the Model Penal Code standard (which H.B 363 adopts), one could be convicted of negligent homicide if they should know the driving had a substantial risk of killing someone.  Last Wednesday’s Washington Post had the following account:

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.

“When moments of inattention can kill somebody, that’s a terrible thing,” Frosh said. “You can lose your house, your job, you can lose everything you own in a civil suit, but do we want to send that mother to jail.”

I’ve read a few hundred cases on negligent homicide in 8 states that have adopted the Model Penal Code standard over the last several days, to see whether there is a basis for this concern. I am making a table (complete for 4 states so far) that shows the facts that do and do not result in a conviction for those states. That table footnotes the supporting case law. It may end up as part of written testimony we submit. I’ll keep inserting new versions of that table.

The Post also reported:

To thread the needle to Frosh’s satisfaction, the bill’s advocates need to define “precisely what their target is.”

Will that hypothetical lady in the minivan who looks back into a car seat and kills a cyclist be guilty of negligent homicide? From the case law I have read so far it depends on what else was going on. Here are a few examples. Under existing law, she would not be guilty in any of these cases.

  • 1. If she was driving 30 mph over the limit, or in a bike lane, or cruising down a shoulder to pass a line of cars–and then looks back at her child and hits a cyclist: probably guilty.
  • 2. If she sees the cyclist ahead, and then looks back at her child and hits the cyclist: probably guilty.
  • 3. If there is a stop sign ahead that is clearly visible, and she looks back at her child and runs the stop sign and hits a cyclist: probably guilty.
  • 4. If the road ahead is clear, and she looks back at her child for 2 seconds during which time a cyclist enters the road and she hits him: not guilty.
  • 5. If the road ahead is clear and she looks back at her child, a cyclist enters the road, she crosses the double yellow line, and hits the cyclist: not guilty.
  • 6. If she runs a red light just barely before it turns green and hits a cyclist in the intersection after it turns green: not guilty.
  • 7. If she loses control of her vehicle while driving 70 mph through a safe-turn 45 mph sign when the speed limit is 55 mph: not guilty
  • 8. If the road ahead is not clear, and she accidentally crosses the double yellow line and hits a cyclist who was plainly visible before she looked back at her child: not guilty in New Hampshire; guilty in Arkansas (if she is a professional minivan driver). So other states could go either way, and even Arkansas might reverse the conviction for a nonprofessional driver.

(I am assuming here that she invokes her right to remain silent and no passengers testify against her. Passengers saying that they warned her against something that she did will hurt her case–maybe the passengers should help with the child.)

A few decades of case law from the states that already have a law like H.B. 363 shows that the term “substantial risk of death” does not apply to the necessary day-to-day activities in which people engage, so those activities could not be a cause for negligent homicide.

If you know of any other possible fact patterns that concern Senator Frosh (or any other Maryland Senator) please let us know and we’ll see if we can find a case that is at least generally on point.

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AAA, lawmakers seek new auto manslaughter law

from Getting There by Michael Dresser

...
But proponents argued that a simple traffic charge -- which can be resolved by mailing in a fine without a court appearance by the defendant -- isn't appropriate in a case where someone is killed through a driver's negligence.

“This much-needed legislation addresses a critical loophole that traffic safety advocates, including AAA and the families of victims have been trying to fix for nearly 15 years,” said AAA spokeswoman Ragina C. Averella. “It’s a loophole so large that negligent and irresponsible Maryland drivers who kill have been escaping through it for years."
...
“It is embarrassing that Maryland has this massive loophole in its law. When you look at the statutes and accompanying penalties in other states, this bill is more than fair and sensible. It provides a measure of justice for all concerned,” she [Adiva Sotzsky] said.

But Frosh said in an interview last week that drivers found to be negligent in the deaths of others can face costly civil penalties. He said his view is that in most cases, jail terms should be reserved for those who intentionally caused harm.
...

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AAA supports HB 363 but Senator Frosh is not so sure (Manslaughter by Vehicle or Vessel - Criminal Negligence)

Senator Frosh has been quoted in the paper saying some things that do not ring true about HB 363 and that needs to be addressed. Some quotes of Frosh in the Baltimore Sun and Washington Post, what the bill actually says and my comments:


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.

Overview
Descending order of culpability in manslaughterSimple definitionExplanationFines
Currently Maryland only has thisManslaughterReckless, gross negligenceHigh 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 thisNegligent 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 363Negligent 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.[1]

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.
If you want to take action this is our latest alert.

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FYI AAA alert on House Bill 363

Take Action. Now!
You and your State Senator must act now to make Maryland roads safer!
AAA Urges Marylanders to Support House Bill 363 Which Will Strengthen Vehicular Manslaughter Laws And Close Existing Loopholes

Take Action!

Please Contact Your Senator Today to Urge HB 363 to Be Passed Out of the Judicial Proceedings Committee
 
House Bill 363 will help ensure that those recklessly negligent drivers who kill and seriously injure others can be appropriately punished.    Maryland ’s current vehicular manslaughter statute requires prosecutors to show actual intent to kill, regardless of how irresponsible or reckless their driving may have been. 

This legislation increases penalties for those who drive in such a negligent manner that it results in a crash that kills someone, or in some cases, many.

Maryland's current law is routinely allowing some drivers to get away with murder on our roads. It is reprehensible that a motorist can drive a vehicle outrageously, and kill someone in the process through his or her own negligence, and then get away merely with a fine or a traffic ticket. We are not referring to simple negligence, but negligence that is so egregious that it exceeds ordinary negligence, such as the intentional violation of several traffic laws that lead to the death of someone.

The auto club is advocating once again to pass this important legislation, to change the penal law, and call attention to Maryland's extremely lenient vehicular manslaughter laws. The loopholes that exist allow those who drive in a criminally negligent manner on Maryland roads and kill innocent people to escape without serious sanctions. For the sake of the victims and their families, it is the right thing to do and it's the right time to do it.

Over the years, AAA has seen many killers on Maryland's highways go virtually unpunished for the heinous crimes they committed behind the wheel because the standard for vehicular homicide and manslaughter are so high. Because the standard is so high, such cases are very difficult to prosecute. HB 363 will at least provide a middle-ground and criminal conviction instead of a simple traffic citation for negligent traffic offenses that result in death.

HB 363 passed in the House Chamber and the bill is now in the hands of the Senate Judicial Proceedings Committee. AAA Mid-Atlantic encourages you to take action by filling out the information below and sending a letter to your Senator asking the Judicial Proceedings Committee to vote in favor of HB 363 so the legislation will proceed to the Chamber for a full vote.
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Shouldn't it be a crime to kill someone by driving a vehicle negligently? It's not.

[B' Spokes: WABA's alert tailored for Baltimore.]

Action Alert

Each year, too many bicyclists, pedestrians, and motorists die on the roadways of Maryland.  Part of the problem is aggressive drivers who speed, tailgate, drive on the wrong side of a double-yellow line or drive on the shoulder--and never yield to a pedestrian in a crosswalk.  If they kill someone in most states or the District of Columbia, a jail sentence is likely.  But not in Maryland.

A drunk driver who kills someone in Maryland may be convicted of manslaughter if they are drunk.  But otherwise, to convict someone of vehicular manslaughter requires proving that the driver knew that he or she might kill someone.  And that is almost always impossible to prove. 

A driver in Takoma Park swerved off the road and hit a 12-year old girl walking home from school on the sidewalk along Piney Branch Road.  He then made a U-turn and drove off, and the girl died.  The jury convicted him of manslaughter.  But the appeals court overturned the conviction because under Maryland law, this evidence does not prove that the driver was reckless.

A driver in St. Mary’s county decided not to clear her windshield of frost, other than a small viewing hole.  As a result, she could not see anything on the right side of the lane. While fiddling with some items on her lap, she struck and killed a father riding his bicycle on the right side of the road.  Because she did not see the cyclist, she could not be convicted of manslaughter for killing him, and was fined $500.

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.  The loophole in Maryland is that there is no such crime.

But this year, the House of Delegates passed House Bill 363 which would create the crime of negligent vehicular homicide in Maryland.  If the Senate passes the bill as well, Maryland will join most of the other states in the nation by closing the loophole.  But the key committee deciding the fate of this bill killed it last year—and they may do it again this year, unless these Senators hear from their constituents.

Time is dwindling in the legislative session, and at this late stage, phone calls are the most effective means of communicating the importance of this bill.


There are three key senators on the committee who need to hear from their constituents that this is a priority.  If you live within the District of one of these senators, please make a call, stating your support for HB 363-Criminally Negligent Homicide by Vehicle.  To find your Maryland Senatorial District, click HERE.

Senator Lisa A. Gladden (District 41): (410) 841-3697

Senator Robert A. (Bobby) Zirkin (District 11): (410) 841-3131

Senator James Brochin (District 42): (410) 841-3648

*** Note these Senators are already supportive the ASK is to make this Bill a priority and to keep it as passed and amended by the House.

If you are unable to call or do not live within one of these Districts, CLICK HERE to send an email to your state senator expressing your support for HB 363.

Thank you,

Baltimore Spokes
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