Why Do Drivers Get a Slap on the Wrist After a Bicycle Accident?

Video Transcription:

Jim Dodson: Hi it's Jim Dodson, The Florida Bike Guy. So welcome to our live stream. So how is it that a driver in Florida, involved in a fatal crash with a cyclist ends up with a slap on the wrist? There have been two well-publicized incidents in the last few weeks involving pretty significant cases, one in Broward County, one in Collier County. Of course the death of any cyclist is horrible and we all know that. But I think that the cycling community right now is kind of going through a period of frustration and disillusionment about the way these cases are being handled. And I think there's a feeling among people that law enforcement just isn't doing its job or they should be handled more seriously by the courts. And what I wanna talk about is the fact that, quite frankly, there are very few options for the law enforcement or the police or the judges in terms these of these situations and I'll tell you why.

So remember the first case was over in Broward County. This is a lady who plowed into a group of 15 cyclists back in November 2018 and she was sentenced last week to essentially a fine, drivers license suspension, and a revocation, well, a fine and driver's license revocation. The facts in that case were that she was riding 65 in 55 zone, number one. She was apparently distracted, according to news accounts for a second or two, is what they quoted her as saying, and in that time she had about, according to the reconstruction, she would have had about 10 seconds to have seen the cyclists ahead of her, yet she didn't apply her brakes, from what I've read in the press, until one or two seconds prior to impact. The state attorney's office charged that as an infraction and they did not charge her with a crime. And I'll explain why in a minute.

The second case was down on Collier County. In that case, a woman approached an intersection at a stop sign, failed to stop, entered the intersection without stopping, hit a cyclist who was crossing the intersection, of course with the right of way, doing everything correctly, and killed this cyclist in the intersection. She didn't flee the scene, she wasn't drinking. The police indicated in the press accounts that they are going to charge her with a non-criminal infraction. The one news article that I read talking about the state attorney's involvement said that of course they'll send it to the state attorney's office but really when it gets to the state attorney, about the only thing they can do is look for some evidence of intent. You know, willfulness, you know if a person intentionally runs a stops sign or intentionally runs into someone, well then that converts it from negligence to a crime, and that changes everything entirely. So the state attorney's office is simply look at the case and determine whether there's any evidence of intent and if there's not, they would be left with having to have the officers issue a citation for careless driving or failure to yield or whatever that might be.

So let's look at some of the alternatives that we have in Florida and why we find ourselves in this situation where in most cases where there's no criminal intent, there's no alcohol, the driver's not under the influence of alcohol, or the driver didn't flee the scene, there's rarely an opportunity to charge anybody with a criminal charge.

So the first opportunity, I guess you'd say, for the police that's sort of going down the alternatives of what to do when the fatal cycling crash, is we have vehicular homicide. Now vehicular homicide requires recklessness. This is a crime of intent. Recklessness is really a willful and wanton disregard for the safety of others. This was what, it sounds as though, with the Broward case, the policy and state attorney had to wrestle with. Is there evidence of intentional recklessness in the driver's conduct? That can be somewhat debated. Remember that when the police or the state attorney charges a crime, they've gotta prove it by beyond a reasonable doubt. And the state attorney's office, I was a prosecutor for five years, they don't want to file a charge they can't win. Well, quite frankly it's not fair to the defendant and it's not fair to the state to spend money or resources on a case you simply can't win. And it's frankly not ethical for the prosecutor to do that.

So they've gotta look at the facts and determine whether there is evidence of willful, reckless conduct by the driver. And from the press accounts, they're simply saying in their view that 65 in a 55, even though distracted for what is described as one or two seconds, frankly I know nothing about the case other than what I've seen in press accounts. But apparently the state attorney reached the conclusion that that wasn't evidence of reckless intent. That it was under the category of negligence and accordingly, no crime was charged. There'll be no jail sentence and the person is charged with a non-criminal infraction.

I think that an example I think of recklessness might be a person in a motor vehicle going through a school zone at 65 or 70 miles an hour when the speed limit is 15. I think that's pure evidence of recklessness. So these, when you get into what opportunity is the state attorney's office have to charge a crime, it is all fact-dependent. Slight variations in the fact make huge differences in the outcome. And if they don't feel they have the facts to prove criminal intent, they're not gonna charge a crime. They don't like it. The police don't like it. We in the community don't like it but their hands are tied based on what the legislature gives them to work with. So that's vehicular homicide which is a crime of intent involving recklessness and reckless driving.

We also in Florida have DUI manslaughter. Now this is closer to the situation we find in a lot of what I would say the collisions that occur between a car and cyclist or between a car and a pedestrian or some other vulnerable road user, where there is simple, an act of negligence. The person was careless. They didn't stop for a stop sign. They were driving over the speed limit but not recklessly. That would normally be charged as an infraction.

However, if the driver is under the influence of alcohol, if they're drunk, if they're DUI, then suddenly that becomes DUI manslaughter. So this act of driving under the influence of alcohol involved in the collision involving a pedestrian or cyclist or vulnerable road user would change what would otherwise be an infraction to a crime of DUI manslaughter. And those cases, the whole opportunity for law enforcement to charge the more serious charge centers around being under the influence of alcohol. If you take that away they're simply gonna be charged with an infraction in many of the situations that we see.

So we also have the issue of, so remember you have criminal intent, you've got recklessness, you've got alcohol but we also have leaving the scene. So leaving the scene of any collision, if you, if a person runs into a bicycle but does not injure the person, they leave the scene with property damage, that's a criminal charge. Then you have variations of what can be charged if the person is injured. You have gradients from, other than serious bodily injury, or bodily injury, or death. And they can all be charged with varying degree of seriousness in terms of felony charges.

Bear in mind that although this may seem a little ridiculous to say, it requires an intentional act of leaving the scene. So if the person isn't aware that they struck someone legitimately, and they didn't realize they were leaving the scene of a crash, that would be a defense. That would be something the state attorney would have to consider before they filed a charge. But if a person knowingly and intentionally leaves the scene after having caused an injury, whether it's a collision with an automobile or collision with a bicyclist and there's been great bodily harm or death, they will be charged with a felony. This is part of the Aaron Cohen Law. Remember that if a person's charged with a, leaving the scene involving death, under the Aaron Cohen Law, we have a four year minimum mandatory prison sentence for that driver, okay. They also have a three year minimum mandatory driver's license extension.

Okay Lee is asking a question whether these situations I'm describing are only in Florida or they different in other states, and Lee I'll tell you that this is something that's gonna be different in every state because every state has its criminal code. And what Florida has as a criminal code is not the same as what Georgia or Tennessee or Maine or North Carolina might have. And remember that the legislature drafts the laws. They define the crime, they define the punishment. And it's up to the prosecutors to fit the facts of the case into one of those categories as a crime and so the punishment then follows based on the way the charge is filed, how it's alleged, how it's laid out in the charging document.

So the three major things that are going, as I've said, that are gonna take an infraction or a collision or a motor vehicle crash with a bicyclist, for instance, are gonna be leaving the scene with death or great bodily harm or injury or being drunk even though you commit a simple, negligent act, if you're drunk or under the influence of alcohol or you're acting with recklessness, reckless disregard for the rights and privileges of others. Those categories are going to remove it from something which is otherwise a citation to a criminal offense. Many carry mandatory prison sentences, mandatory driver's license revocations, and they are, quite frankly, what the public expects anyone who kills someone to face, and I understand that. We all react to these crashes like how can it be that someone does this and they only get a $150 fine or $1,500 fine, whatever it might be, and no jail time. It's because the state has no charge that they can actually formulate against the driver.

I believe, in most situations, if they could they would, and I think in most situations a judge would impose the appropriate sentence if he's given the opportunity to. But the consternation and the upset by people, and I understand it entirely, is a little misdirected because the police and the state attorney and the judges, really don't have as much discretion as we believe they should have perhaps.

So let's look at what can be charged. You know, a civil infraction, back in when I was a young pup lawyer, these careless driving and other things were a form of a crime. They were misdemeanors back in the early day. Those things were changed. They pulled all of the traffic infractions out and made them non-civil, non-criminal infractions. The most common one is careless driving but you also have failure to yield the right of way.

All right so, Diana is asking what is it if someone that hits someone, the person is dead. Well, it depends on what happens. Like if they have the intent, reckless intent, they could still be charged with a crime. If you recklessly and intentionally run your car into someone, a pedestrian, or another driver, or a bicyclist, even though you don't kill them, if you just simply cause some injury to them, that's an aggravated battery. So your car becomes an instrument of battery and you could be charged with a felony of aggravated battery by running your car into someone. That's not typically what we're talking about. When I was a prosecutor, I used to see those charges in family disputes. People would get upset, someone gets in their car and they run into somebody. You know they batter them with the car. Well, that's a felony. In our situations though, it's usually a driver. And again they've got to be under the influence, they've gotta act recklessly or they've got to commit a crime under the influence or leave the scene. Those are the things that are gonna transform it into a crime the state can charge.

So careless driving, failure to remain in a single lane, failure to yield the right of way, failure to stop at a stop sign, these are all examples of pretty common infractions. I think the most common one is the infraction of careless driving and you know they're going to simply have a fine, driver's license suspension and in some situations even community control, which is kind of little bit of a, actually not for an infraction. It's usually a fine, driver's license suspension and points on your license.

Now there is some movement by the legislature to do something about this and I think it's come up in years in the past. The FBA has been advocating for change for quite some time. You know, it was work to get the Aaron Cohen law passed. It was work to get the texting bill passed. Senator Baxley in the 2020 legislative session which just started recently and will go through March, or into March, has introduced Senate Bill 408. You oughta go look at it. You can just Google Senate Bill 408 2020 legislature and he is trying to fill this gap that I've talked about a little bit this morning, with this bill there's a companion bill in the house, I think it's 455, and they make it a moving violation. If person commits a moving violation, careless driving, failure to yield the right of way, and they cause serious bodily injury to a vulnerable road user, that's typically a cyclist, pedestrian, someone working on the side of the road as a construction worker, some other people are included in the vulnerable road user definition, then that would become a second-degree misdemeanor under the proposal by Senator Baxley. It would carry a fine, a minimum fine of $1,500, a minimum 30 days of house arrest, and minimum of a driver's license revocation of 30 days.

So the other one would be, it would elevate to a first degree misdemeanor if they commit a moving violation which results in death. So this is a moving violation that they didn't leave the scene, they weren't drunk, and they didn't act recklessly. So those are the three biggies that are gonna make it a felony. So filling in that void beneath it. Not simply carelessness but they committed a moving violation with serious bodily injury or they committed a moving violation with death. Then under his proposal, it would be a first degree misdemeanor if the person died, carry a $15,000 fine, a minimum, 180 days of house arrest and a driver's license revocation of a year. So again, they're not felonies, but they're misdemeanors but they greatly enhance the penalties for those categories not arriving at intent or DUI. And again this is the proposal by Senator Baxley in the current legislative session with a companion bill in the house and we should vent our frustration by getting behind our legislators to pass these bills to get them through the house and senate and signed by the governor this term.

Let's see, Diana has a question. All right, Diana is asking the question should police be making reports on all cases including bicycle or bicycle crashes, not in organized rides, like electric bikes on sidewalks, hitting other cyclists or pedestrians. You know, this is an interesting question that comes up quite a bit. There are situations where the police will not come to the scene depending on where it is and what's involved. There are a lot of situations where I'm an advocate for having the police come and make a report if you have the opportunity to do that. It confirms the name and identity of everybody present. It takes a statement from both parties, the one who is allegedly at fault and the person who was not and it sort of locks people into these statements early on and it's very influential in giving to the claims adjuster evidence that their insured was at fault. But remember police reports are not admissible in Florida. A person can say at the police report, "It was my fault." And later testify at trial, "It was not my fault." And you cannot directly impeach them directly from the policy report because in Florida we have this accident report privilege for certain people who are required to make a statement at the scene of an injury or at the scene of an accident. But they are very influential in other ways. We can confront people with the statements they made in police reports but they can't be introduced as evidence in trial. So there are limitations on that but I always think it's, if you are the person who is not at fault, I definitely would suggest you always wanna get the police there if you can. Call them, if they can't come or they won't come that's gonna be a separate situation. We see that frequently, unfortunately, some people don't realize they're injured. Particularly in motor vehicle crashes. They don't realize they're injured so they don't think it's necessary to get a police report. The cops don't come, the other side then says, "Hey, I wasn't driving, "it wasn't me, it wasn't my car. "I didn't do anything wrong." You know all kinds of mischief occurs when you don't have them locked in early on at the scene.

So I hope this helps sort of the debate that's going on out there in the cycling community for us to understand, I believe that the police and judges and law enforcement in general will, in most situations, charge these cases appropriately if given the tools to do so, and they need to be given those tools. Which is the legislative outline and framework that allows them to apply the correct law to the situation they find in hand.

If you wanna talk about this further with me I welcome your interaction. You can email me at jim@jimdodsonlaw.com. I understand this is a frustrating event for a lot of people. I hope I've shed some light on it.

You know, Diana's got another question. How can organizations that stand for bicycle and pedestrian safety be a catalyst for change? You know one thing that I would suggest the FBA is in the legislative halls throughout the session. Our executive director, Becky Afonso, is up there for every major bill the FBA is lobbying for. My suggestion is contact Becky, get behind, join the FBA if you're not there. Volunteer to call your legislator. Volunteer to find out who's on the committees. Volunteer to appear up there and speak. These are the things that make a difference. The industry has a lot of representatives. The industry is involved that involved that don't want change. They have paid lobbyists and other people that are well orchestrated. And then campaign donations. We typically aren't that well organized. But the right amount of public pressure, particularly through people like the FBA that are recognized advocates for bicycle safety can make a huge difference, and I urge you to express our anger, if you would, or vent our frustration by getting behind those people that are already in the hunt. And there's law enforcement, the sheriff's association, there's several people out there supporting these bills, and Becky would be happy to share that with you.

So I hope this was helpful. I represent cyclists throughout Florida. If I could help you in any way, I'm here for you. We're committed to helping cyclists any way I can. Not only with injuries and accidents but if I can help you with your, if your bike is crushed and you're not injured, I'd be happy to walk you through what can be done to get your bike replaced. We're making our uninsured motorist handbook available as our offer today. Remember, if you don't have UM, don't ride your bike in my view. I'm Jim Dodson The Florida bike Guy. Hope you enjoyed this. We'll look forward to seeing you on the road. Be safe, bye.

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Jim Dodson
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A Florida injury lawyer, family man and avid cyclist who clients have trusted for over 25 years.