28-672 in the news

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. Read the rest of this entry »

Kandas arrested for negligent homicide

Six wrecks in the past few years? Who is this guy’s insurance company? Read the rest of this entry »

Pecos Death Trap?

UPDATE SEP 22,2010: AFN reports that that there was an injury wreck at 32nd and Pecos resulting from a “bad left”. The 17 y.o. EB driver turned left into the path of the WB driver, who was injured “seriously but not life threatening”. Bad lefts were the cause of both a 2003 fatality and a 2007 very serious injuries; both of those were at 40th and Pecos.

UPDATE OCT 16, 2009: More dangerous automobile driving — the AFN reports a 4 car pileup with no serious injuries: “two vehicles heading west were driving aggressively when one changed lanes and clipped a vehicle. A third vehicle was hit and spun into the median, went airborne and hit a eastbound vehicle”. no mention of any charges, or even citations, as usual — aggressive driving is a CRIME…. will we see any charges?

UPDATE OCT 8, 2009: A fifth fatality occurred just east of 40th and Pecos when a westbound driver crossed over the median and hit a dump truck head-on. A car like the one that crashed had been reported as speeding and driving erratically on 202 just before the collision. Brian P. Evans, 31, of Chandler died at the scene. [afn article]. While I’m on the subject, a Pecos Road tragedy was narrowly averted Sept 28th: “Police arrested [suspicion of DUI] Rogelio Hernandez Castillo, 40, near 40^th Street and Pecos Road for traveling east in the westbound lane in a white Ford F-150.” [afn article]

UPDATE 2, another fatality;  at the I-10 to Pecos transition, in the wee hours of Dec 30, 2007.  Weerasak Senaprakome, 21 hit a barrier or something was the driver in a single car collision. This probably doesn’t have anything in particular to do with Pecos Road. But would be five for those keeping a body count. In the Ahwatukee Foothills News story, Doug Murphy wrote “…While Pecos Road doesn’t have an unusually high number of crashes, motorists have often complained that speeds far exceed the posted 55 mph speed limit”. (I think the limit is actually 50, by the way). I don’t know about the crash rate but the fatality rate sure seems high(?).

UPDATE: A fourth fatality plus serious injury occurred Christmas eve 2007. Trang Vo (34 y.o. female) was killed, plus 3 more seriously injured. Christopher Smith, 30, of Tempe was apparently driving the wrong way and caused the head-on collision — DUI possible in Pecos Road fatal collision, The Ahwatukee (Arizona) Republic, Dec 27, 2007. Trial to be held in early 2010.

Is Pecos Road here in Ahwatukee (Phoenix, AZ) a death trap?

In the recent [ed note: the below describes several fatalities that occurred between sometime up until 2007. Since then, see udates above, there have been several more fatalities and serious injuries; the driver of a motor vehicle was at fault in all these incidents]  past there have been 3 fatalities along Pecos Road. The most recent serious collision which occurred Friday September 14, 2007 is strikingly similar to the crash on December 2, 2003 that took the life of Sarah Wintz. On November 28, 2003, just five days earlier Phuong Pham was killed while attempting to enter Pecos Road at Desert Foothills Parkway, which at the time was before the traffic signal was installed. And in November 2004 cyclist Don Anselmo was killed on the shoulder as a driver simply drifted off the road.

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A motor vehicle driver was negligent in all the deaths, as well as all of the many (maybe all, details are sketchy on some of the injuries) serious injuries.

Read the rest of this entry »

Double Jeopardy and Flawed Logic

ARS §28-1592 specifies the time limit for bringing a civil traffic violation. Sort of like the “statute of limitations” for traffic tickets. The normal limit is 60/90 days, but for alleged violations when there is a wreck and investigation the limit is 180 days, and extends to a full year if a fatality is involved.

The rub is that police (cities? jurisdictions?) won’t issue complaints for a traffic violation if there is any sort of ongoing investigation, an incipient neg hom/manslaughter charge for example… and these things do seem like they can drag on forever. They appear to do this in an overabundance of caution — claiming “double jeopardy” issues. As far as I can tell there can be no double jeopardy between civil and criminal.

The end result is that drivers who would clearly be found responsible for a traffic infraction frequently end up getting off scot free; when the criminal case falls through for whatever reason. See e.g. Kandas. Or sometimes it is just an oversight on the part of police. It seems clear that the driver responsible for the Eades fatality could have / should have been cited for §28-701 “failure to control”.

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Talk about getting away with murder…

Yet police didn’t confiscate her driver’s license. Had this been a DUI case, Sgt. Joel Tranter told me, they would have taken it and notified the state Motor Vehicle Division so it could administratively suspend Gilbert’s license. But police don’t pursue DUI charges in manslaughter cases, for fear of jeopardizing the more serious charges.

“The (administrative suspension) law does not apply to homicide or aggravated assault cases because those are criminal,” Tranter explained. “They aren’t traffic investigations.”

In other words, if you drive drunk, you lose your license. But if you drive drunk and kill someone, you can keep driving.

Hentoff [the victim's family's attorney] calls the police department’s interpretation of the law “absolutely flawed logic.”

Driver in DUI-death case still at the wheel, Laurie Roberts, The Arizona Republic. Aug. 25, 2007

We’ve heard this double jeopardy business before from the police department, Read the rest of this entry »