Christmas Eve ‘07 crash trial, verdict: guilty

I’m filing this under a new tag: the wheels of justice. And the incredibly long and arduous journey of a dui-manslaughter case.  The human and societal costs are staggering.

For starters, one victim, a motorist, dead. A number of injured motorists. The suspect, locked up since the crash on December 24, 2007.

Christopher Lee Smith, 32 years old, stands accused of DUI and manslaughter in a wrong-way, head-on collision on Pecos Road near 14th Street in Phoenix, AZ.

According to the Ahwatukee Foothills news story; “At the time of the crash, Smith was on probation for a previous misdemeanor DUI…”

Superior Court case number CR2008-102616 or search on supremecourt.az.gov

The “Sleep Driving” defense?

The so-called “sleep driving” defense may be employed, see e.g. this minute entry “Defense expert witness re sleep driving is discussed”

Trial delayed again due to a death in one of the victim’s family. The AFN is reporting (Oct 30, 2009? but i can’t find online) that the defendant has rejected a plea deal (no details given) and trial is scheduled for February 2010. The defendant remains incarcerated.

The Trial and Guilty Verdict

Trial coverage. Verdict, guilty. 2nd Degree Murder, and 3x aggravated assault.

Sleep driving. Sleep driving? SLEEP DRIVING!? What will the defense lawyers think of next? Does this ever really work? “…But defense attorney Charles Shell told the same jury that the tragedy was not his client’s fault because Smith was driving in his sleep and was unaware of what he was doing”, “An expert witness hired by the defense, Dr. Dave Gaither of Illinois, testified that if Smith had gone to sleep first, then he was probably sleep driving and unaware of what he was doing.” Hmm, what kind of doctor? apparently not a physician.

Stop Sign Compliance

In conjunction with the “Bikes Safe at Stop Sign” bill recently introduced in the Arizona legislature, I began to wonder more generally about stop signs in general (all traffic, not just bicycles). Read the rest of this entry »

Nevada High Court Says Pharmacies Can’t Be Sued for Death

This story about who can and can’t be sued in the case of wrongful death is interesting to those who follow such matters; Nevada High Court Says Pharmacies Can’t Be Sued for Death, WSJ 12/26/2009.

I was more interested in a habitual prescription drug abuser who killed this guy and served a whopping 9-months. 9-months!  She killed one guy and seriously injured another according to the article.

“…Ms. Copening was driving a Dodge Durango when she hit two delivery men who were standing on the shoulder of a highway, killing one and severely injuring the other. In Ms. Copening’s car, police found prescription bottles and loose pills. Police reports said she appeared confused, and a blood test detected the painkiller hydrocodone. Ms. Copening pleaded guilty to two counts of reckless driving and served nine months in jail”

Driver cited in death of baby in stroller

There was a particularly horrifying crash in September  where a 7-month old baby was killed instantly while being pushed in a stroller ON THE SIDEWALK passing in front of a private driveway. The infant’s mother and brother escaped serious harm by leaping out of the way. Phoenix police announced almost immediately (My, that was a fast investigation! the crash occurred 9/14/2009, the media reported that outcome 9/16/2009) that there would be no criminal charges recommended. “Police said, Macias (the driver) did not see Clayda Lozoya, 27, walking down the sidewalk with her 4-year-old and 7-month-old children in a stroller. The SUV ran over the stroller and killed the baby instantly” [kpho]. “The investigation reveals Ms. Macias may have looked left before entering Northern Avenue to go east and not see the family approaching from the east,” Holmes’ news release indicated. ” [abc15]

In any event, the Arizona Republic reports (I guess the final police report?) in a Valley and State brief (not online? see below), that the driver was cited for two traffic infractions: failure to yield, and too-dark window tints. In the report, police (strangely) fault the mother of the victim for walking in front of the vehicle without making “eye contact” with the driver — now, remember police have also said the driver’s windows were illegally dark. hmmm. And remember, the victim was on a sidewalk, passing in front of a private driveway. It sounds to me like the Phoenix Police have invented a new duty — now it is the victim’s duty to ensure eye contact has been made, before making any sort of movement, regardless of right-of-way (the pedestrian has complete right-of-way at a driveway)? This is nonsense. This report is sounding like a tort lawyer. And, with all due respect to tort lawyers, is this really the sort of thing that should be in a police report? In my opinion, police reports should stick to application of THE LAW. Such “creative” interpretations in police reports frequently cause problems for cyclists.

On the other hand, the Police’s press release (reproduced below) was quite strong, admonishing drivers to look both ways — but of course, talk is cheap.

In case there is any confusion about what a driver is supposed to do at a driveway:  §28-856 “The driver shall… Yield the right-of-way to any pedestrian as necessary to avoid collision”. (nothing about “eye contact” here).

For the curious, the window tinting statute is  §28-959.01. I get the impression that this is one of those laws that generally only ever gets invoked after-the-fact.

The driver is, understandably, devastated over the incident. But from a punishment perspective, if the driver pleads or if found responsible for these infractions, she is facing a few hundred dollars in fines, and a couple of points on her license.

As noted above, police almost immediately dismissed any notion of criminal charges (e.g. Negligent Homicide). There is another far less serious law which makes it a crime (albeit a very minor crime) to kill a pedestrian, but it only applies when in a crosswalk. This seems to be yet another shortcoming of 28-672 see Crime and Punishment.

Driver in fatal crash was cited

The Arizona Republic, Dec 11, 2009, p. B2

PHOENIX — A woman whose SUV rolled over and crushed a 7-month-old boy outside a school in September was cited for two misdemeanor [ed's note: this is incorrect -- these infractions are strictly civil] traffic citations, records show.

Leticia Macias, 41, received the citations for failure to yield and for having improperly tinted windows on her 2007 GMC Yukon the day she struck and killed the baby at a busy parking lot at Westwind Middle School Academy near 20th and Northern Avenues.

The baby’s mother “never made eye contact with the driver prior to walking in front of the the vehicle” of the baby as she prepared to pull onto Northern Avenue on Sept. 16 after dropping her own child at school, according to a police report release this week. (ed’s note: there’s something wrong with the wording, e.g. “of the baby” makes no sense, and “as she prepared” obviously must mean the driver, who isn’t “the baby’s mother”).

A Phoenix police spokesman said Macias was never criminally charged. The baby’s mother, Clayda Lozoya, 26, was pushing the stroller and walking with her 3-year-old son at the time of the accident. The baby, Roman Mata, was pronounced dead at the scene as parents and children arrived at the campus around 8 a.m.

Infant in stroller killed by SUV leaving school parking lot

Information Provided by the Police Department

officers at scene in front of a school Tragedy struck at a private school near 19th Avenue and Northern this morning when a 7-month-old infant was struck and killed by an SUV. The infant, a boy, was being pushed in a stroller by his mother who was also walking with her 4-year-old son.

An SUV being driven by a 41-year-old woman who had just dropped off her child was pulling out of the Westwind Preparatory Academy parking lot and struck the stroller. The infant’s mother and brother were able to get out of the way, but were taken to a nearby hospital to be checked. The driver of the SUV remained at the scene; police were investigating and it was not known if she would face charges. “This is one of the calls you never get used to,” said Phoenix Fire Captain Hugh Chase. “We all have kids.”

PIO James Holmes at scenePhoenix police Public Information Officer James Holmes stated from the scene, “It is imperative that motor vehicle operators remember they are required to yield to not only vehicular traffic when exiting a private drive, but pedestrian traffic as well. Way too often a driver who intends to make a right turn will look left to ensure the way is clear, but not right. This endangers all pedestrian traffic which may be approaching from the right. We have to be careful.”

Motorist Doctor Convicted on all counts

In a highly unusual incident, Physician Christopher Thomas Thompson was convicted on all charges in a Los Angeles court, including multiple felonies of intentionally causing a crash that seriously injured two bicyclist.

The story received, understandably, an enourmous amount of press, both in the industry and in the mass-media. Velonews ran extensive articles, as did the LA Times. It’s of course also been widely covered in the blogosphere but it is so unusual; I just had to write about it.

“Thompson was convicted of six felonies: two counts each of assault with a deadly weapon and battery with serious bodily injury as well as reckless driving causing specified injury and mayhem. He was also convicted of misdemeanor reckless driving.”

Somehow, this only tallies to a theoretical maximum of 10 years, which as the story points out, he is unlikely to receive.

Sentencing is Dec 3. (later delayed until Jan 18 according to velonews). I’d hate to see the taxpayers be saddled with the cost of a lengthy prison sentence; I would prefer to see him on house arrest with no possibility of ever driving again.

He apparently has completely ruined his own life: his lawyer in requesting that he be let out until sentencing, but the prosecutor objected saying  “he no longer lives or works in Los Angeles and was likely to lose his medical license soon”.

Sentancing

He got 5 years in prison. Something about facing a max of 8 years. see velonews here and here. I was glad to hear about the lifetime driver’s license revocation; this guy is obviously a dangerous kook when he gets behind the wheel. This revocation leaves me wondering what the deal is with judge’s discretion in sentancing.

“After sentencing Thompson to five years in California state prison, Millington issued a lifetime revocation of the defendant’s drivers license and ordered him to pay restitution to the victims as well.”

more funny things that defense lawyers say: “Thompson claimed that he had merely come to a stop in order to take a photograph of the riders as part of his effort to document what he believed to be a violation of local traffic rules. Thompson’s lawyer had argued that the cyclists were belligerent and may have fallen because of the inherent instability of bicycles”

Prior Bad Acts

Pelkey “the Explainer” had a very enlightening column about the rules of evidence involving admissability of  so-called “prior bad acts”, federal rule 404(B), and so forth.

The Aftermath

In a bit of encouraging news, the LA Times reports In a first, LAPD Chief Charlie Beck vows to better protect cyclists, train officers on biker rights.

Crime and punishment

Most traffic infractions in Arizona are strictly civil matters, if a driver is found responsible he or she is generally subject to a fine of not more than $250 (§28-1598), and no jail time is possible. Some infractions specify their own penalties, for example the “Three foot rule” (§28-735) includes enhanced penalties of up to $500 or $1000 if a motorist seriously injures or kills a cyclist when overtaking unsafely (the enhance penalty does not apply if a bike lane is “present and passable”).

A handful of infractions specify criminal penalties, for example DUI, excessive speed, reckless driving. These are in and of themselves relatively minor criminal offenses, for example excessive speed is a class 3 misdemeanor (the least serious criminal classification).

If the conduct results in a serious injury or death, AND the police/prosecutor believe that the conduct was “criminally” reckless/negligent, then we leave the realm of traffic law and enter the generic assault or homicide laws; i.e. Arizona has no  “Homicide by Vehicle” statute (perhaps we need one?). According to wikipedia, Arizona is one of only 3 states that lacks such a law. Vehicular homicide laws, though, are both a blessing and a curse — they make it easy for prosecutors to charge, but at the same time they are generally very low-level crimes (unless aggravated by, e.g., DUI).

That being said, there is one more statute of interest, §28-672, that “criminalizes” simple negligence when death or serisou injury results, but only for a prescribed set of infractions:

• §28-645(A)3(a): Running a red light
• §28-772: Bad left
• §28-792: Running down a pedestrian in a marked OR UNMARKED crosswalk
• §28-794: Not exercising due care around a pedestrian
• §28-797 subsection F, G, H, or I:  Disobeying various school zone rules
• §28-855(B): Running a stop sign
• §28-857(A): Disobeying school bus stop signs

…

There are a couple of related statutes, §28-675 and §28-676 , that have more serious penalties for exactly the same list of infractions as with 28-672, but apply if the driver’s license has been yanked (and only when yanked for cause relating to previous illegal bad driving).

…

Although the penalties are relatively minor, it would seem this is a good start. But. It appears to me that this law if rarely charged. Why not?

Ok, so here’s the thing. Despite what would have to be a very common crime, there appear to be no more than a handful of these cases (I’ve outlined a couple of them here). Consider that just in the city of Phoenix, every year there are ~ 160 fatalies, and ~ 1,600 serious injuries (there are ~ 16,000 injuries, and ~ 10,000 injury collisions.  The city’s stats don’t break down serious vs. non-serious. A 10% rate is to be expected). [These are the 2007 figures from the City of Phoenix]

So how many of these 1,700 or so cases result in 28-672 charges? The most serious recklessness cases become homicide/aggravated assault. In some cases, the driver is injuring/killing himself, so no charges would be possible. And the biggest exclusion is many of these don’t stem from a moving violation that is included in the definition.

Who is at fault in a left-turn collision?

A high profile collision involving a school bus turning left at a signal, still under investigation — the news article doesn’t let on who the police believe is responsible for the collision that killed two motorists. The collision occurred in Phoenix at Union Hills Drive, and 12th Street. The speed of the car was reportedly excessive. Read the rest of this entry »

Who’s Responsible?

There is a claim floating around that some study has concluded that motorists are responsible for some 90% of car-bike collisions.

This would be a lot higher than is generally appreciated. I’ve grappled with this a little bit before in Understanding Collision Summaries, where I pointed out an inexplicably high proportion of  “other” violations assigned to bicyclists.

So far, I’ve found a page at projectfreeride.org with a table that is said to be source from Tomlinson, David. Conflicts Between Cyclists and Motorists in Toronto, Canada. Link to a .pdf on the Velomondial.net.

The same claim can be found in a newslettery article dated Aug 19, 2009 on a University of Toronto website entitled Smart Cycling. the information was supplied by a physcian, Dr. Chris Cavacuti, who is also involved with projectfreeride. And a correction with that article that was posted Aug 26:

In the interview, Dr. Cavacuiti is quoted as saying “The [Toronto Collision] study concluded that cyclists are the cause of less than 10 per cent of bike-car accidents”. Dr. Cavacuiti has asked us to make readers aware that the Toronto Collision study was actually designed to look at the cause of bicycle/motorist collisions but not culpability.

It is actually several studies conducted by the Charles Komanoff and member of the Right of Way organization in New York that concluded that concluded that cyclists were strictly culpable for less than 10 per cent of bike-car accidents.

Dr. Cavacuiti would like to apologize for any confusion this error may have caused.

On the projectfreeride page,  in a statement summarizing Tomlinson’s findings, the page at projectfreeride says “In fact, cyclists are the cause of less than 10% of bike-car accidents in this study”. Is that really what Tomlinson found? Or should the correction mentioned above be also applied to the projectfreeride page too?

This claim got picked up by the Freakonomics blog, garnering wide exposure.

Skepticism at the commuteorlando blog. Links the 90% claim back to Komanoff’s group Killed by Automobile paper. More links here on cycledog.

(more to come…)

92-year-old jailed for DUI

I don’t normally like to comment on these far-afield stories but this one is particularly crazy.

It seems that 92-year-old Clifford Allen was convicted of his second DUI (second within six years,  one wonders if there are more?) this triggers some sort of mandatory sentence and landed him in the county lockup, when some sort of residential rehab fell through. Read the rest of this entry »

Photo unit snaps GOP party chief speeding 109 mph

This is just too wild to not comment on. Never a dull moment here in Arizona with respect to photo enforcement! Two weeks ago the world’s first photo radar murder and now we have a politician (he’s not a legislator, he works for the party) *arrested* for criminal speeding and reckless driving.

How will this play with the County Attorney’s pronouncement (see Thomas says no to criminal speeding) that he will not prosecute any criminal case based solely on photo evidence? Read the rest of this entry »