Arizona Bike Law Blog

So you’ve killed somebody with your car, now what?

Motor-vehicle collisions remain the leading cause of death in the US for a broad swath of ages. Notably, you are more far more likely to be killed by a driver than you are to be the victim of murder. A minority of traffic fatalities which involve impaired (mostly alcohol, and a few drug impairments) are treated as serious homicides (something like 30%) however the majority elicit no more than a traffic ticket.

The numbers for serious injury are analogous; e.g. you are far more likely to be injured by a driver than by a mugging or forcible assault, or fall or whatever.

So, suppose you’ve killed or seriously injured somebody with your car, now what? The remainder of this article will focus on the only civil sanctions, and minor criminal offenses — in other words, there is no impairment either suspected or otherwise. It also excludes the possibility of hit-and-run; you didn’t do that, did you?

Arizona has no specific vehicular homicide (or vehicular assault) law, see here for some background.

You will, or perhaps may receive some special treatment in the following ways:

1. Defensive Driving (DDP) school, a.k.a. diversion, which dismisses the citation is not an option,
2. Traffic Survival School (TSS) is required if found or plea responsible,
3. You MAY be required to appear in court.
4. You MAY be subject to an enhanced fine if  you plea or are found responsible for a particular infraction.

Read the rest of this entry »

Oft-delayed Foshee Trial to begin

[There is a Notice of Appeal dated on publicaccess  dated 4/25/2012]

[SENTENCING finally actually happened 4/18/2012; the matter is finally (hopefully) put to rest.  According to my correspondent, Foshee received 10.5 years for manslaughter 6 years each on the endangerment, 22.5 years, but to be served concurently so 10 1/2 years, TOTAL, which is the presumptive sentence for manslaughter all by itself, a dangerous class 2 felony (see 28-704). Off-hand, not knowing all details and back-story -- this seems too light given the hit-and-run, the other aggravating circumstances, the prior DUI conviction, and the (I presume) rejection of a plea deal. In short, it seems to me the justice system is sending many wrong signals here, for example it appears that, once again, there is no penalty whatsoever for hitting-and-running. You can read the sentencing case minute here. ]

[Updates from case minutes 3/28/2012: The motion for a new trial has been DENIED.  And separately, on the Defendant’s Motion, the defendant has been found to be indigent. I assume this has something to do with lawyer's fees. Sentencing remains scheduled for 4/6/2012]

[Sentencing Update; 3/23/2012 -- to the surprise of probably no one, sentencing did not occur as scheduled. The defense has filed a motion for new trial (here is the case minute, but it doesn't explain anything), the prosecution has until 3/23 to respond. The sentencing has be re-scheduled for 4/6/2012]

[breaking news update: 2/14/2012 -- guilty on all counts / and all counts are "dangerous"; the jury in a seperate phase found the charge to be aggravated (will make sentencing, scheduled for March 23, harsher). Man guilty of manslaughter in bicyclist's death, Jim Walsh. Here is the verdict case minute, it is quite detailed ]

The manslaughter trial stemming from an incident where a cyclist was killed in August of 2009 is actually going to trial 1/30/2012 after many delays — yes, that was almost two and half years ago!

My correspondent told me that jury selection did begin on Monday.

According to police, issued to the media, at the time:

• A WB driver crossed over into the EB lane and collided head-on and killed Russell Jenkins
• “The rider…  had a working headlight on his bike”
• “The surviving cyclists … reported that Foshee had a strong odor of alcohol”
• “The driver fled the scene, but the Maricopa County Sheriff’s Office Traffic Unit later arrested Gary Foshe [Foshee], 53″
• “two deputies reported that Foshee had a strong odor of alcohol and several signs of intoxication”

The defendant’s prior DUI conviction, as well as his blood test results are likely to be key factors. On the other hand, the issue of the victim’s posthumous blood test results is, from what i can tell, irrelevant because it did not affect the crash in any way.

Much more background here and here.

Violation of a statute enacted for the public safety is negligence per se

Sisk v. Ball, 91 Ariz. 239, 371 P.2d 594 (1962):

“Violation of a statute enacted for the public safety is negligence per se,Anderson v. Morgan, 73 Ariz. 344, 241 P.2d 786 (1952), and when this theory is supported by the evidence, [a party] is entitled to have a properly worded instruction on this issue read to the jury. Of course, a violation of the statutory duty must be also a proximate cause of the injury to constitute actionable negligence. Caldwell v. Tremper, 90 Ariz. 241, 367 P.2d 266 (1961).” 91 Ariz. at 242, 371 P.2d at 595-96.

Bad weekend in Scottsdale

[Update / FINAL on cyclist McCarty death: azcentral.com  The motorist who killed Shawn McCarty was fined a total of $420 (and the case is apparently closed; though they didn't explicitly say that, in other words, the prosecutor declined any criminal charges). Regardless, It would appear that $420 is the "normal" fine schedule that anyone would pay. That would mean that the enhanced fine for 28-735 (section B) was exactly ZERO. How can that be? Would a judge or magistrate actually make that decision, or it is some sort of court "bug"?

Ped fatality Saturday, Cyclist fatality Sunday

(3/10 and 3/11). A handful of interesting points: each driver was cited within a day or two of the incident. In the case of the pedestrian mowed down in a crosswalk, the driver was also cited for 28-672 (causing death by violation) which is a criminal (albeit a minor misdemeanor) charge. In the case of the cyclist, according to blogs.phoenixnewtimes.com the driver was cited for violating the 3-foot rule (28-735) and driving in a bike lane (28-815D). The police aren’t letting on why the driver so distracted that she was driving in the bike lane (and yes, it’s a real, full-fledged, designated bike lane), other than to say the investigation is continuing. As I pointed out in double-jeopardy-and-flawed-logic it’s unusual (around Arizona) to issue any citations until the close of investigation and getting the go-ahead from a county prosecutor — apparently Scottsdale does things differently.

It is gratifying to see Scottsdale issuing the 28-672 charge when appropriate… I have no way to check this but it seems way under-utilized. In the end, though, it may be little more than a slap on the wrist, see e.g. this case where it seems to have merely amounted to a $200 fine — hardly a behavior-changing penalty. Last month, Scottsdale also charged a driver making a bad left with 28-672 which resulted in the death of a boy riding legally in the crosswalk (a la Maxwell v. Gossett).

Pedestrian: Judith May, 69 / driver: Frederick Matschull, 72; Case TR-2012006196

Cyclist: Shawn McCarty, 53 / driver: Amy Alexander, 40; Case TR-2012006430.

lookup Scottsdale Municipal Court records by case number at scottsdaleaz.gov.

Read the rest of this entry »

One Arizona legislator REALLY doesn’t like photo red cameras

Our legislative elves have been hard at work trying to de-rail photo-enforcement. Again (click here for last year’s festivities). The biggest single item is supposedly dead as of March 6, 2012 — this would have referred a ballot measure which would prevent cities and towns from using photo-enforcement.

Safety studies have consistently shown a net safety benefit for photo-red enforcement. Net means that there are fewer serious injuries and fatalities. A few studies have shown an increase in the number of collisions accompanying the safety gains. See, e.g. the IIHS study, Red Light Running Kills, linked at trafficsafetycoalition.com. Or more locally, also see Scottsdale-based redmeansstop.org.

Here is a list of items in the current session (spring 2012) of the Arizona Legislature, assembled by the Traffic Safety Coalition:

• SB1315 - mandate personal service or certified mail for photo enforcement tickets
• SB1316 - mandate that photo enforcement cameras cannot take pictures of red light running violations unless the light has been red for at least one second
• SB1317 - mandate a study of intersections with red light cameras
• SB1318 - force photo enforcement companies to obtain a PI License for each worker
• SCR 1029 - put photo enforcement ban to the voters for approval

As noted above Senate Concurrent Resolution 1029 is for the time-being anyway dead… The first thing I noticed that was odd is that they are all in the senate. Upon closer inspection all four of the the senate bills have only one sponsor, and all four are the same guy; a Frank Antenori (R-30, Tucson). He clearly doesn’t like photo-enforcement, and is apparently making it his life’s work to defeat it’s effectiveness; if not ban it outright.

Aside from safety issues, the cameras can, and do, provide evidence that has been used to solve crimes; including (that I know of) catching a hit-and-run driver who seriously injured a cyclist in Tucson, a hit-and-run-driver who killed a cyclist in Tempe, and a assault-robbery-murderer in Tempe.

Stats?

Arizona has a particular problem with red-light running; despite improvement over the years, Arizona continues to be over-represented. For example in 2009 Arizona had 37 red light running (RLR) fatalities while New York had only 29…. Arizona being three times as dangerous as New York on a per capita basis.

The words below, written over 10 years ago continue to ring true today, from a 07/13/00 article in USA Today, Ariz. has deadliest red-light runners in USA:

Arizona has the nation’s deadliest red-light runners, with three of the country’s worst cities for fatal intersection crashes, according to a study of federal transportation data obtained by USA TODAY….  Arizona had by far the worst death rate among states, with 6.5 fatalities for every 100,000 people… Arizona also had three of the four most dangerous cities. for red-light fatalities. Phoenix topped all urban areas, followed by Memphis, Mesa and Tucson

In addition, cities with speed limits of 45 mph and higher on surface streets faced more serious red-light -running accidents… The Phoenix police officer says said that with an average of 330 days of sunshine a year, it’s typically usually perfect driving weather. That doesn’t mean motorists drive perfectly, however. Just the opposite. “If we got more rain or inclement weather, maybe it would slow people down some, particularly at the intersections,” Halstead said says. “As it is, they zip around the city at a pretty good clip.” And, according to the institute’s study, Phoenix drivers run red lights at an unrivaled pace. The city has by far the nation’s deadliest rate of fatal red- light running crashes, nearly five times the national average. Arizona and other fast-growing Western states have been particularly stung by red light crashes “because their wide open roads are suddenly seeing schools, businesses, and busy intersections crop up,” says said Phoenix traffic engineer Paul Wellstone. “The West has a reputation for being a drivers’ paradise; a place you can lay on the accelerator and not worry about the traffic and dangers. That’s changing now. Cities are struggling with getting their citizens to slow down.”

 The FHWA has a page on red light running.

Bicycle Driver’s License?

Since bicyclists are granted all the rights and responsibilities as drivers of vehicles by §28-812, are cyclists required to have a driver’s licence?  §28-3151 sets forth the conditions requiring a license: “a person shall not drive a motor vehicle … on a highway without a valid driver license”. But that rule appears in Chapter 8.

The rules which apply to bicyclists are restricted to those in Chapters 3, 4 and 5 as set forth in the applicability statute, and since 28-3151 resides in Chapter 8, it does not apply to bicyclists.

Nor would it apply regardless of which chapter it appeared in, since it specifically only applies to drivers of MOTOR vehicles. (see bicycles-are-not-motor-vehicles-and-why-it-matters for some further discussion)

Is Phoenix Safe?

Phoenix was reputed to be America’s 7th safest city, according to this survey which looked at three factors relating to insurance. Clearly the stuff of newspaper-filler stories. Intrigued, I see that the survey involves ranking cities in three categories 1) Crime, 2) Natural disasters, and 3) Traffic safety; though it wasn’t clear how they were weighted. For example, traffic fatalities claim far more lives than murder, and the number of deaths in the U.S. due to natural disaster is miniscule.
That being as it may, their source for traffic safety rankings is the “Allstate America’s Best Drivers Report” (tm!), which Allstate claims “Reveals Safest Driving Cities”.

What it actually measures is the statistical likihood of having an auto insurance claim. Which Allstate claims, and I think sounds reasonable, as a proxy for the number of MV collisions. The next leap, which is demonstrably false, is that fewer collisions translates into “safety”. One glaring data point is enough to disprove this: cities of similar size are frequently and for good reasons ranked against one another; it just so happens that Phoenix and Philadelphia have virtually the same population, and are currently the 5th and 6th largest city in the U.S. Actual fatality data reveal that Phoenix is significantly more dangerous than Philadelphia, yet Allstate’s proxy data says just the opposite:

Source: NHTSA Traffic Safety Facts 2009 (latest year available), Table 124 811402.pdf, and Allstate (follow link above; current year result they refer to as 2011, is similar to 2005-2010 ). Notes: overall U.S. fatals/population/ratePer100K = 33,808/307,007,000/11.01

So, Allstate’s data merely shows that Phoenicians suffer from fewer fender-benders than Philadelphians; but say nothing about safety.

Why is Phoenix so dangerous? The main reason is probably because it’s “Dangerous by design”, with a higher priority on moving more cars, at higher speeds; and a lower priority on getting everyone to their destinations without being killed. More driving could explain some but not all of the gap; this, in itself, a symptom of poor land-use choices.

I threw Seattle into the table simply because of this recent op-ed that aggravated me: why-seattle-is-safer-than-phoenix. Phoenix and Seattle are quite dissimilar in population, but here again the Allstate data claims Seattle is far safer than Phoenix when it is just the opposite that’s true.

By the way

I always have trouble finding this page at www-nrd.nhtsa.dot.gov (which can be found by searching for FARS, then clicking on “publications”) where it lists publications like Traffic Safety Facts; e.g. 2009 Traffic Safety Facts Data Summary Booklet ; and 2009 Traffic Safety Facts FARS/GES Annual Report, they list back to about earlier 1990′s.

NTSB calls for complete cell ban: LaHood backpedals

The NTSB has called for a complete ban on personal electronic communications device usage by drivers on the grounds that any non-emergency usage is unacceptable risky. Here is Deborah A. P. Hersman, NTSB chairman writing in USA Today on 12/15/2011:

Distraction, whether it’s hands-free or handheld, whether it’s texting or talking, is deadly. The National Highway Transportation Safety Administration (NHTSA) said distraction-affected crashes killed 3,092 people last year

Handheld-only bans, such as that proposed in the city of Tucson, are at best not likely to improve safety much; and in fact may have perverse effects. If handsfree become explictly permitted, it may well change behavior of those who formerly chose to abstain entirely, thus increasing risky behavior rather than reducing it.

Fast forward a couple of weeks, in late December “U.S. Transportation Secretary Ray LaHood said he won’t back a proposal to prohibit drivers from talking on cellphones, even hands-free devices, giving a boost to car makers and mobile-phone companies that stand to lose if regulators impose a ban” [wsj]. So there you have it, distracted-driver warrior LaHood won’t back a ban; along with an explanation of presumed pressure from business interests.

At this point, you might be wondering and confused about who-is-who in this Federal alphabet soup: What is the NTSB? This is a both interesting and intricate. One might think that NTSB resides under the DOT, however it turns out that is incorrect: “In 1974, Congress reestablished the NTSB as a completely separate entity, outside the DOT”.  The NTSB is run by a five member board; each nominated by the president for five year terms. Read that as far less politically sensitive, as compared to the Secretary of Transportation.

So Ray LaHood is Obama’s Secretary of Transportation; who runs the U.S. DOT, the United State’s Department of Transportation. And the NHTSA (National Highway Traffic Safety Administration) is the group, under DOT, tasked with highway safety.

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There is an enjoyably-cycnical view of the subject at LaHood says hands free calls are A-okay; throws NTSB under the bus.

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Recent DOT blog  fastlane.dot.gov touts enddd.org.

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Listening to Phoenix’s Bicycle Collision Summary

Phoenix, and many other entities issue a report, usually called something like a Bicyclist Collision Summary. For some background, complaints, and links to others, see Understanding Collision Summaries.

At hand, I have the most recent, 2007, report from the City of Phoenix, which can be found here (was here), on the Streets Dept safety/collisions webpage. Read the rest of this entry »

Jaywalking in Arizona

Tom Vanderbuilt’s latest Slate column discusses jaywalking and why its enforcement is really just pro-car bias, and not the danger to pedestrians that is claimed. Tom is the author of Traffic:Why We Drive the Way We Do (and What It Says About Us), and blogs at howwedrive.com.

Consider these statements of two officials from the Mesa Police Department:

Jaywalking, when a person walks anywhere other than a designated crosswalk, is a crime, Mesa police spokeswoman Diana Tapia said.

“…It is a concern and it’s illegal,” [Mesa Police Crime Prevention Officer Patty] Gallagher said

– Mesa reminder: Jaywalking not only illegal, it’s unsafe. The Arizona Republic January 9, 2008

First off, jaywalking is not in any way-shape-or-form a crime, it is a civil matter — but we can write that off to sloppy wording. More substantively, Ms. Tapia is apparently unaware (as are many drivers!) of the concept of an “unmarked” crosswalk! (*all* intersections have crosswalks; regardless of striping or no… unless crossing is expressly prohibited). Also, jaywalking (though not defined legally in Arizona) means “crossing between intersections”, which is typically not prohibited.

Sadly, both officials show either ignorance of the law, or disregard for what the law actually says.  (The Mesa, AZ ordinance is reproduced below). As is typical of jaywalking laws, crossing outside of crosswalks is rarely prohibited; in order for it to actually be illegal, it must be either between two adjacent intersections with signals, or in the “business district” (the Mesa business district is tiny).

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I see parallels here in what is an apparent pro-car/anti-ped bias of police departments spilling over to pro-car/anti-cyclist bias. For example, the Tucson Police Department routinely run stings at stop signs to ticket cyclists who roll through; which is illegal but rarely fatal (I’m not aware of any fatalities in Tucson caused by the cyclist running a stop sign). At the same time, police rarely (a total of 3 over an 18month period by Tuscon PD) ticket motorists for passing cyclists too closely — behavior that regularly kills people.  And this is all done under the aegis of enhancing cyclist safety — so be careful what you wish for when lobbying for additional money for enforcement, it is likely to get (mis)used for things that have no demonstrable link to our safety.

Mionske’s slant on the same topic.

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Mesa City Code, see Title 10 Section 3 part 19:

When Pedestrian Shall Yield. (Reso. 990,1771)

1. Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway. (Reso. 990,1771)

(F) Prohibited Crossing. Between adjacent intersections at which traffic-control signals are in operation, pedestrians shall not cross at any place except in a crosswalk, and no pedestrian shall cross a roadway other than in a crosswalk in any business district.

Arizona state law is even more plain. see ARS §28-0793, Crossing at other than a crosswalk. See also azbikelaw.org/pedlaw/excerpts for a roundup of pedestrian laws.

Unmarked crosswalks at ‘T’ Intersections

(I’m warehousing this info here because I don’t know where else to put it, and I expect I’ll be able to find it if I keep it with the ped topic of jaywalking)

I was under the impression that there were crosswalks at all crossings of a T-intersection, and that it had always been that way — it turns out that it’s not always been that way…

In 1977, Kauffman v Schroeder (116 Ariz 104) a lower court declined to give jury instruction regarding §28-0793: “pedestrian must yield when crossing at other than crosswalk”. The driver appealed to the supreme court, who reversed the opinion, writing that the definition of crosswalk (at the time) required a sidewalk on both sides of an intersection.

In 1981, SB1201 passed, adding the words “prolongation or” to what is now ARS §28-0601(3).

In 1983, Boulware v Carbajal (138 Ariz 118) was a case very similar to Kauffman, both regarding pedestrians killed when crossing parallel to the terminating leg of a T intersection, and both regarding jury instruction of 793). I forget the details, but the court ruled that the change made in SB1201 was not merely “procedural” and thus not be applied retroactively. So I guess it was a party for the deceased pedestrian appealing, who apparently failed to get the new wording effective for their case, but perhaps the collision was from early 1981?? If that’s true it’s unfortunately, but I guess doesn’t matter now..

So T-intersections have crosswalks, whether or not marked.