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  • 28-672 in the news

    Posted on January 26th, 2009 azbikelaw 10 comments

    Prosecutors routinely decline to prosecute negligent drivers who kill/injure. Nearly without exception, they will only seek homicide (i.e. negligent homicide, or manslaughter) / assault charges if the driver is impaired. Short of that, the hurdle, in the minds of prosecutors, is very very high.

    28-672 Legislative History

    Here’s some legislative history of 28-672, (now) a misdemeanor charge “Causing Death/serious injury by Moving Violation”; it is pretty recent, it’s only been around since 1998, and initially had just: 645A3(a), 772, and 855B (traffic control signal legend, left turns, and stop signs). HB2327 43rd Legislature 2nd Regular session; Chapter 243, signed May 1998. The new law was initially a civil (not criminal) violation.

    Notably, 28-672 was “criminalized” quite recently (probably 2006. it was 47th 2nd regular session) before that it was a civil-only penalty. HB2208

    In 2004, added were: 792, 794, 797E6
    In 2006, added were: 857A (HB2389)
    In 2007, added were: 857A (HB2052) (identical change by both bills for school busses)
    In 2008, change 797 sections (probably for consistency with modifications to 797?)
    In 2010, added were: 729, 771, 773

    So suggesting changes to this section is not predisposed to failure. I would like to see the enhanced penalties for 28-735 dropped (i.e. eliminate sections B and C entirely) and to have it added to the list of ’672 violations.

    Irma Quintana Fatality

    There’s nothing surprising or novel about this particular case in Laurie Robert’s recent column (if that link doesn’t work, check her blog), except perhaps its flagrance. A habitual speeder is speeding, red-light runner killed somebody. The 25 y.o. male killer (curiously not named, why?) according to the victim’s family’s attorney “says the SUV driver had eight prior speeding tickets and had been cited three times for driving without insurance before the April crash – when he also apparently had no insurance…(and) cited four times for driving with a suspended license”

    The class 3 misdemeanor refers to §28-672 which recently changed to allow for criminal charges. Prior to 2007, the law didn’t even allow for any criminal charge, only enhanced civil penalties. (also see §28-675 / §28-676 which offer enhanced penalties if the injury/death was caused by a driver who is “not allowed to operate a motor vehicle…”, i.e. suspended license).

    A class 3 misdemeanor normally implies no jail time whatsoever, and the maximum license suspension for death is 180 days — really, can’t we do any better for the sake of justice and public safety?

    I added the photo enforcement tag because the red light camera evidence was instrumental in disproving the driver’s claim that he had a green light.

    Jenna Eades Fatality

    A few days later, Roberts did the Jenna Eades fatality in her column. (blog link).  As Roberts wrote in summary: “In Maricopa County, you can kill someone with your car and get away with it as long as you aren’t drunk or high. Here, there is no consequence, no price to be paid.”
    “Maybe some day, somebody will be able to explain to her [Haley who survived but had serious injuries] how the man who took away her sister hasn’t gotten so much as a traffic ticket.” The official answer as to why there would be no traffic citation is explained here, Double Jeopard and flawed logic.

    A mother’s death, a son’s loss deepens

    by Laurie Roberts – Jan. 24, 2009 12:00 AM
    The Arizona Republic

    (excerpts)…
    Just after 9 p.m., Ruben was headed west on Broadway when a southbound SUV, having just come off the Hohokam Expressway, ran the red light at 48th Street. The 25-year-old driver told police he had a green light and was going the speed limit. However, witnesses disagreed, as did the red-light camera that snapped him as he blew through the intersection.

    According to Tempe police, the light had been red for 7.83 seconds when he came through, doing 48 mph in a 35 mph zone. Put another way, he was 550 feet from the intersection when that light turned red. Police said he had “more than adequate distance” to stop.

    …
    No alcohol or drugs were involved.

    …
    “He wasn’t impaired,” spokesman Mike Scerbo told me. “He didn’t flee the scene. It was not considered reckless behavior. It’s tragic, but it can’t be qualified as a felony.”

    Not reckless, to be going 48 mph in a 35 zone, even though you’ve driven over four “rumble strips” to alert you to slow down? Not reckless, when the light had been red for nearly eight seconds? Count out eight seconds to see just how long that is.

    …
    Ruben’s (the victim) attorney, Clifford Heiney, says the SUV driver had eight prior speeding tickets and had been cited three times for driving without insurance before the April crash – when he also apparently had no insurance.

    Heiney said he had been cited four times for driving with a suspended license, though police said he had a valid license in April.

    Scerbo told me prosecutors have sent the case to the Tempe city attorney, recommending that the driver be charged with a Class 3 misdemeanor for killing Irma Quintana.

    A Class 3 misdemeanor.

    If convicted, the driver would have to go to traffic school and pay a fine. He even could see his license suspended.

    carlaw , ,
     

    7 responses to “28-672 in the news” RSS icon

    • It’s only reckless if you hit a police officer. Then they throw the proverbial book at you.

    • There’s a problem with respect to 28-772, a “left hook”, when the victim is a cyclist
      “The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to a VEHICLE”

      The word “vehicle” probably ought to be “traffic” instead. In AZ bikes aren’t vehicles (more explanations here ). This distinction may seem to be hair-splitting, getting away with this nuance, particulary on a criminal charge, is not likely to fly.

      This seeming oversight is on a short list of statute tweaks I would like to see.

      http://www.azleg.state.az.us/ars/28/00772.htm

    • There was a 28-672 citation for the driver collided with an off-duty tucson PD officer riding a motorcycle. Discussion at tusconbikelawyer.com. news story.
      The time line is pretty quick — the collision occured May 17, and the citation was noted in the newspaper May 28, 2009.

    • There is some legislative action in spring 2011, HB2523 (50th legislature / first regular session)

      Interesting KGUN article, i had not heard anything about this bill. It was sponsored by Vic Williams (R-Phoenix) and Terri Proud (R-Tucson).
      What it would do is change the particulars as to what type of license suspension would be eligible for the more serious charges. In one version, it would simply be any suspended license.

      I can’t quite figure out from the azleg site where this stands. The legislative session seems to be winding down?? maybe it’s (this bill) already dead.

    • I’ve always thought there were very few prosecutions under 28-672; after all there are thousands of deaths or serious injuries arising from car wrecks every year in Arizona — if only 10% of them qualified there would be hundreds of proscutions… well it turns out the dearth of cases is more than oversight, in some places it’s actually policy!

      In a horrifying memo uncovered by KGUN, the Tucson city attorney, citing budgetary problems, has directed their police to NOT issue 28-672 charges.
      Apparently negligently caused deaths and horrible injuries aren’t important enough for the prosecutor to bother with…. a traffic ticket will do just fine, thank you.

      The driver accused of running a red light, killing 2 and seriously injuring another, 29 y.o. Richard Kinner (maybe Kinnar?) had a long string of violations: “But a 9 On Your Side Investigation discovered that Kinner has a long history of previous traffic citations — 31 in all, including five charges of street racing and seven other charges of driving on a suspended license.”
      You can see a picture of the pimped-out Tahoe here.

      The county attorney apparently decided the more-serious 28-675/676 cannot be charged; it would depend on why Kinnar’s license was suspended. If the county attorney declines for any reason, the city attorney (normally!) would then be free to persue the lesser 28-672. Apparently only an intense amount of community pressure (including facebook) caused Tucson City Attorney Laura Brynwood to step up and do the right thing and charge Kinnar with 28-672.

      Jan 29, 2011 news piece on the trial and sentence. The dispute now, the appeal, is over the sentence which somehow was assigned 25 each for two deaths plus one serious injury. Sounds like the judge threw the book at him, which he should have, his prior record should have been considered in sentencing.

      news piece dated Feb 10, 2011

      The victim’s names are distinctive: Lorrie Schlecht, 55, her daughter Casie Roden, 34, and her granddaughter, Caia Roden, 4

    • The motorist involved in the collision and death of cyclist David Cornelius of Flagstaff eventually plead guilty(responsible)/no-contest to making a bad left (28-772) and 28-672. The plea has him paying a fine of $113 for the 772, and $200 for the 672. As far as i can tell, that is the entire sanction (no license suspension, for example), any sort of civil suit or restitution notwithstanding.

      These cases can take quite some time to finalize. The collision happened in Sept 2010. I began to get concerned that nothing seemed to be happening as the 1-year time limit (for issuing citations) approached.

      Here’s a scan of the plea deal court records.

      Case Number: M-0341-TR-2011006062
      Title: ST OF AZ VS KILCOIN KYLE Category: Traffic
      Court: Flagstaff Municipal Filing Date: 08/14/2011
      Judge: E-CITATION Disposition Date: 02/21/2012
      KYLE KILCOIN DEFENDANT – D 1 Date of Birth: 04/1991
      Citation Count Description Disp. Date Disposition
      C00202438 1 FAIL TO YIELD ON LEFT TURN AT INTERSECTION 02/21/2012 PLEA GUILTY/RESP SENT IMPOSED
      C00202438 2 ACCIDENT W/SERIOUS PHYS INJURY 02/21/2012 PLEA GUILTY/RESP SENT IMPOSED

    • Here’s some legislative history of 28-672; it is pretty recent, it’s only been around since 1998:

      Notably, 28-672 was “criminalized” quite recently (probably 2006. it was 47th 2nd regular seesion) before that it was a civil-only penalty. HB2208

      28-672 was added in 1998, and had just: 645A3(a), 772, and 855B (traffic control signal legend, left turns, and stop signs).

      In 2004, added were: 792, 794, 797E6
      In 2006, added were: 857A (HB2389)
      In 2007, added were: 857A (HB2052)
      (identical change by both bills for school busses)
      In 2008, change 797 sections (probably for consistency with
      modifications to 797?)
      In 2010, added were: 729, 771, 773

      So suggesting changes to this section is not predisposed to failure.

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