Two years ago Maryland created a new crime of vehicular negligent homicide in Maryland, which allows prosecutors to seek criminal penalties when a sober-but-aggressive driver causes an accident that kills someone. Anne Arundel County prosecutors should be seriously thinking about using this statute in the case of Patricia Cunningham, an Annapolis high school coach who was killed August 21 on Riva Road.
A police officer apparently sent this account to a local cycling group:
Today a young female cyclist was killed on Riva Road...
Right at Indian Point Ct is a quick rise in the road. At its highest point you can't see traffic coming from the other way. A van traveling possibly 40 or so mph saw the female cyclist and decided to pass her as she was going over the hill. As the van went to pass on the other side of the road a vehicle coming the other way appeared. The van immediately swerved right RIDING OVER the cyclist. I won't go into details of her injuries. Let’s just say her shoes were knocked off her body. She died at the scene. A little patience by the driver of the van and 2 peoples lives would not be forever changed.
Here is a link to a video taken by Alex Pline, one of the leaders of Bicycle Advocates for Annapolis and Anne Arundel County, as he drove the same route at the driver's estimated speed.
Aggressive drivers who kill are rarely prosecuted unless they are drunk or leave the scene of the accident. Perhaps because many “respectable people” drive aggressively, it is hard to feel comfortable sending people off to jail when they accidentally kill someone while driving in a way that most people drive. But it is also hard to feel good about the idea that killing someone has no legal consequence. Courts and the Maryland legislature have wrestled with this paradox for decades.
Let’s take a look at felonies that might be committed by a driver who kills another person. We can rule out murder in this case, because that requires intentionally killing someone, or at least total indifference, such as when someone deliberately drives into a crowd of people, not caring whether they live or die.
The next most serious form of homicide is manslaughter, which has a maximum sentence of 10 years. Manslaughter means killing someone through reckless conduct. To be reckless, someone must (1) be driving in a way that has a high chance of killing someone, and (2) realize that she might kill someone. Many drivers have been convicted of vehicular manslaughter, but had their conviction reversed by an appeals court even though the drivers clearly did something absolutely terrible, because there was no proof that the drivers realized that they might kill someone. For example, a driver in Takoma Park swerved to the right and struck some children walking home from school. The jury convicted the driver of manslaughter, but the appeals court reversed the conviction, because the jury was never told why the driver swerved off the road. (There were no passengers in the car and the driver chose not to testify.)
Convictions of vehicular manslaughter do occur when the driver is either drunk or drag racing, even without witnesses who can testify what the driver was thinking. Courts in Maryland are willing to assume that, in this day and age, everybody who drives drunk or drag races on a highway realizes that they might kill someone. But otherwise, the difficulty of proving what the driver knew makes a manslaughter conviction almost impossible to obtain. So usually, prosecutors do not even try.
In October 2009, Curtis Leymeister was killed one morning in St. Mary’s County while riding his bicycle on the right side of the main travel lane, by a driver who simply did not see him. Kathy Lee May had cleared the frost off a small area on the driver side of her windshield, but she chose to wait for the defroster to clear the right half of the windshield. She hit Mr. Leymeister before the windshield cleared. While it should be obvious that you might kill someone when your windshield is covered with frost, there was no proof that Ms. May realized that she might kill someone. She was charged with negligent driving and had to pay a fine of $287.50.
Two years ago, the Maryland General Assembly created a new criminal offense for criminally negligent vehicular homicide with a maximum sentence of three years. To be guilty of negligent homicide, one’s conduct must be a “substantial deviation” from the duty of care, and the driver should know that there is a substantial risk of killing someone. The prosecution need not prove that the driver knew she might kill someone, but only that she should have known that she might kill someone.
The General Assembly did not go as far as the District of Columbia, where even ordinary negligence may be sufficient to convict a driver of negligent homicide. As the Washington Post reported, the Senate Judicial Proceedings committee only wanted aggressive drivers to be prosecuted:
[The chairman felt] that new standard [should not] 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...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?"
Advocates of the bill persuaded the committee that the new law was reasonable. On behalf of the Washington Area Bicyclists Association, I provided the committee with a review of a few hundred cases from eight of the states that had adopted a similar negligent homicide law.
Assuming that the account by the unnamed police officer is correct, this looks like a case of negligent homicide that would not be reversed on appeal. The driver’s actions were a very substantial deviation from the duty of care: The Maryland Transportation code requires that before passing, a driver must ensure that the “roadway is clearly visible and is free of approaching traffic”, §21-305(a). Passing is also illegal when “approaching the crest of a grade or on a curve in the highway where the driver's view is obstructed,” §21-305(b)(2)(i). Passing is also illegal if there is a double yellow line, §21-307. And once a driver decides to pass, the driver must not return to the right lane until she is safely clear of the vehicle that she just passed, §21-303. These provisions apply even if you are passing a truck. The law also imposes a duty to avoid colliding with a bicycle, §21-1209(a)(1); and drivers must leave a clearance of at least three feet when overtaking a bicycle §21-1209(a)(2). If the driver really violated all of those requirements, this was a very substantial deviation from the duty of care, and thus it was criminal negligence.
Will Anne Arundel prosecutors move forward with a homicide investigation? The probable guilt of the driver is hopefully a key consideration, but it is not their only consideration. The Anne Arundel County State’s Attorney’s office has used the new vehicular negligent homicide statute once, when prosecuting the driver who killed legendary bassist Joe Byrd, brother of Charlie Byrd. But that was not a case of aggressive driving; the driver was distracted. So the prosecutors were (at best) testing the limits of a statute that the legislature never intended to apply to cases of distracted driving. And as one would expect, the driver was acquited.
Unfortunately, prosecutors may have learned the wrong lesson. Instead of focusing on aggressive driving, prosecutors from the State's Attorney's office have lobbied the General Assembly to repeal the new negligent homicide statute. In a Senate Judicial Proceedings Committee hearing (March 13, 2012) a top Anne Arundel prosecutor said that he does not know how to prosecute a case under the new statute. The mother of a cyclist killed in Baltimore, and Delegate Luiz Simmons (D-Rockville) responded by offering to help train the Anne Arundel prosecutors.
With a possible crime and a reluctant prosecutor, the tie breaker for prosecutorial discretion may be public comment. What bothers Anne Arundel citizens more: The possibility that routine aggressive driving might land you in jail? Or that drivers who kill can keep on driving? Your preferences only matter if you speak up.
Prosecuting the driver for negligent vehicular homicide would probably not result in a long prison sentence. The point of prosecuting a driver is not to ruin her life, but to protect society: provide the strongest possible deterrent to such dangerous behavior, prevent the driver from doing this again, and rehabilitate her into becoming a model driver. Perhaps society's interests would be better advanced by taking away her driver's license and requiring her to take a course in safe cycling.
That would be up to the judge to decide. But it's up to the prosecutor to put the matter before the court. And it's up to all of us to tell the prosecutor to do so.
(Jim Titus is on the Board of Directors of the Washington Area Bicyclist Association.)
UPDATE: I added a link to the video taken by Alex Pline and clarified that deterring similar bad driving is more important than punishing this particular driver.