Category Archives: carlaw

(still) No charges filed vs. Pinal deputy in 2012 fatal crash

[Updated 12/2013; Deputy fired, see below]

So this is pretty weird situation stemming from a fatal wreck occurring August 2012. I don’t know how any of this is supposed to work — but it occurs to me that County Attorney Voyles could have sent this to a neutral party (another county) for disposition, and that would have avoided any appearance of impropriety. As it stands, Voyles had a clear conflict-of-interest; and he decided it in favor of his interests. Voyles description of the deputy’s actions (‘patrolling’ at ~ 100mph?) as “an acceptable investigating patrolling activity” is quite bold, and troubling. They don’t call it “criminal speeding” (see 28-701.02) for nothing, well I mean reasonable people call it that, I don’t know how Voyles (or the deputy) rationalizes it.   The victim’s (that is to say, the guy that died; the deputy was seriously injured) actions were certainly also negligent — he was very drunk, and made a bad left — but that certainly doesn’t absolve Steele of all responsibility for the collision. In any event, this is going to be very expensive for Pinal county taxpayers. Continue reading (still) No charges filed vs. Pinal deputy in 2012 fatal crash

Valley Attorney Pleads guilty in fatal hit-and-run

[Update: The result of Butel’s disciplinary action Presiding Disciplinary Judge PDJ-2014-9037. some suspension of her law license; a year, but retroactive; myazbar.org has a summary]

[Sentencing came down early December: Butel “was sentenced Friday to 10 days in jail and three years of probation”, though it didn’t really turn out that way,  see Case minutes  of the 12/6/2013 sentencing minute: “credit for 9 (deferred) day(s) served”. Plea deal minute is dated  9/30/2013. However, the “deferred” days were never served, see minute 3/24/2014 “deleting the 9 day jail term”, what’s up with that? Leaving 1 day for the dui, would be my guess. See also for example the driver who killed Dr. Marwan Maalouf had his sentence halved after sentencing. I also note that the 9/30 agreement had already whittled down the charges from leaving the scene of a fatal to leaving the scene of a non-serious injury crash; dropping the felony from a class 3 to 5.]

Valley attorney Aimee Butel plead guilty. This will be a felony 3 — leaving the scene of a collision she did not cause; plus a simple DUI… “preliminary test showed Butel had a blood alcohol content of 0.129”. Why do drivers hit and then run? Usually because they are doing something wrong (like, e.g. dui) Continue reading Valley Attorney Pleads guilty in fatal hit-and-run

Motorcyclist killed after crash in Phoenix

This appears to be highly typical mode of motorcyclist fatality

A motorist makes a bad left at intersection, striking oncoming motorcyclist.

Had this been a bicyclist-MV collision, it would be a crash type 212 – Motorist Left Turn—Opposite Direction, commonly called a “left hook”. This is a relatively uncommon fatal crash type, just 12 of 617 bicyclist fatalities nationwide in 2010 according to FARS. One supposes that the relative speeds involved make this far more likely to be deadly for motorcyclists than for bicyclists.

One wonders how the police handle such cases; from the description, it appears the motorist should be cited for 28-772 making a bad left, and charged with 28-672. since a death resulted.

Motorcyclist, 20, killed when driver, 84, failed to yield

By Yihyun Jeong
The Arizona Republic-12 News Breaking News Team
Thu Apr 11, 2013 4:03 PM

A motorcyclist died after a car tried to make a left turn in front of the motorcyclist at Cave Creek Road and Union Hills Drive in Phoenix Wednesday, officials said. Police responded to a serious injury collision at the intersection of Cave Creek Road and Union Hills Drive around 4 p.m., Sgt. Steve Martos, a spokesman for the Phoenix Police Department said. Police were told that a motorcyclist was down and his motorcycle was on fire. The motorcyclist, Angelo Wright, 20, was taken to a nearby hospital where he died of injuries, Martos said. The police department’s Vehicular Crimes Unit responded to the scene and determined that an 84-year-old female driver of a Volkswagen Rabbit, was heading east on Union Hills and tried to make a left turn at Cave Creek Road to travel north, Martos said. The driver failed to yield to Wright, who was riding a Harley Davidson motorcycle, and collided with him. Wright was not wearing a helmet.

 

Was the driver cited and/or charged? Dunno. Would have to get police report and get driver’s name, since police didn’t say, and then do a lookup.

 

2013: Bill would ban cell phone use by novice teen drivers

[Update as of 2/23/2013, The McComish novice cell ban, SB1241, is moving forward. The Farley full text ban SB1218 is dead. See below ]
[Update as of 4/4/2013 McComish bill appears stalled, it is being prevented from coming to a vote in full senate. In other news, Farley tried again, via amendment, to get a texting ban; see notes below on SB2378]

It’s the start of a new legislative season in Arizona, the 51st Regular session, for those keeping track.  (find other bills of interest with the legislation tag)

A cell phone ban has been introduced, SB1241. The same (or similar?) bill was introduced last year, bill-would-ban-cell-phone-use-by-teen-drivers-with-learners-permits. The bill applies only to “novice” drivers, that is those who are 16-18 years old, and the ban only lasts for 6 months. On the brighter side, it is a total ban, which I prefer to, say, a handsfree exception. For background, see NTSB has called for a total ban.

Arizona presently has no laws* restricting use of “electronic communication devices”, though there are some local bans, e.g. the City of Phoenix banned texting in 2007, and in 2012 the City of Tucson did something (i don’t have that handy; i’m thinking it was a handheld cell ban w/ handsfree loophole). Many other states have moved to try and limit cell use while driving; here is a good chart from ghsa.org. The main federal site is at distraction.gov.

* oops, that’s not exactly true; in Arizona, there’s a ban on all cell use by school bus drivers.

Here’s another bill sponsored by Steve Farley (D-Tucson) SB1268 class G licensees; communication devices. This bill seems nearly identical to SB1241(?); and as of 2/23 it is not assigned to any committee which I imagine means it is dead.

In any event, SB1241 is moving forward: it was heard and  got a DO PASS by Public Safety on 2/13. It was then (supposed to be) heard by Transportation 2/19 (minutes not yet available.

Full Texting Ban Proposed

This year, being no different than other years, Sen Steve Farley (D-Tucson) has introduced a general purpose (not age-restricted) bill that would ban texting; SB1218. According to an azcentral.com news story, this is one of only five senate bills to be “triple assigned”; meaning it must pass through THREE committees, any one of which can kill it.

Moving on, a news story 2/23 Scrap heap of dead bills piling up at Arizona Legislature, specifically mentions SB1218 as being “dead”. “Dead” means leadership didn’t assign the bill to (any) committee — i.e. it didn’t really get triple-assigned. Dead is not absolute but generally, dead means dead.

Farley tries to slip in texting ban

Sen Steve Farley attempted to slip in a texting ban via a floor amendment to an (arguably) unrelated bill, HB2312;  see Senate rejects texting-while-driving amendment 4/2/2013, here are some gems: “But (Farley’s) attempt to amend House Bill 2312 failed on a 16-12 party-line vote, with Republicans opposed and Democrats in support. Senate President Andy Biggs, R-Gilbert, led the charge against Farley’s amendment. He said the books on state traffic laws are already thick with regulations that could enforce penalties against drivers whose on-road behavior is reckless”

Some History

Various legislators (Mr. Farley and Al Melvin come to mind) have in the past, repeatedly for several years running, introduced various more general restrictions on cell communications that never were enacted; stalling in various committees — see e.g. the 2010 go-round where a bill that year “sailed” through the Senate but stalled in the House.

handsfreeinfo.com/arizona-cell-phone-laws-legislation has a really good session-by-session history of Arizona cell legislation attempts which describes activity back as far as at least 2007.

Arizona Update — July 2013

News item about Farley’s ongoing multi-year efforts, Driver-texting ban still elusive in Arizona, begins “Almost every state has responded to rising smartphone use with a law banning drivers from texting, many in the past few years. Arizona is one of nine states that have yet to make that leap…”. Though I still haven’t seen compelling empirical data showing bans are having the desired effect. My list of studies is here. This begs the question; If cell phone use is so distracting (and it certainly is, there is mountain of off-road evidence that it impairs driving ability) what are the bans really doing? Are there unintended consequences?

Bill would ban city’s use of photo enforcement

In what is an annual ritual, HB2579 (51st regular session) a group of Republican Arizona legislators would ban city’s and town’s use of photo enforcement. See here for last session’s go-rounds…. photo enforcement seems to be a pre-occupation with some handful of legislators.

Arizona’s legislators have often voiced frustration over being “told what to do” by, say, the Feds. Proponents of such bills, however, don’t appear to have any qualms about telling cities what they can and can’t do. Certainly, not all Republican lawmakers are on board, and cooler heads ultimately (this time, anyway) prevailed, as the bill failed to pass committee; azcentral.com

“I am not in favor of these things, but as a City Council member I will listen to my chief of police,” said Rep. Sonny Borrelli, a Republican from Lake Havasu City and a former City Council member there. “I can’t buy this that nobody knows about them and are being targeted — it’s no surprise.

As I’ve mentioned before… Completely aside from safety issues, 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.

And Another One

HB2477 (51st regular session) is yet another attempt to get rid of photo enforcement. This one harkens back to something i mentioned over a year ago; the legislature is aghast to find the the ARIZONA department of transportation is allowing photo enforcement to be placed along state roads, at the request of local juridictions. Azcentral.com noted in a story about the bill passing the house: “Rep. Carl Seel, R-Phoenix, said he really wants photo enforcement eliminated, because in his view it is unconstitutional. But with measures outlawing it failing again this year, he said the bills that are advancing at least make it harder for cities and towns to set them up.”

[update 4/3/2013: hb2477 passed full senate along party lines, i presume, and moves back to house for what is assured final approval]

Is Photo enforcement Unconstitutional?

I would like to hear Rep. Seel’s reasoning. I’ve never really seen, other than vague claims, that photo enforcement is itself “unconstitutional”. For example, one Arizona legislator told me that was so because of a “constitutional right to face one’s accusers. With PE, the camera machine cannot be cross examined; it is therefore unconstitutional”. Really. He said that. Apparently according to his theory surveillance video, say in a bank robbery, is unconstitutional as well.

Googling around; I see a county court ruling in Florida, that has been set aside; awaiting review. In any event, there is apparently zero case law in Arizona holding PE to be unconstitutional. And after over 7 years (the loop 101 demonstration project began in the fall of 2005), and untold thousands of cases; I think it’s safe to say that photo enforcement is constitutional in Arizona.

Process Servers and Arizona’s Rules of Civil Procedure

handy link with all Arizona’s Rules for Civil Procedure [which lawyers cite as Ariz.R.Civ.P.]  that are of interest to process servers. (e.g. rule 4.1 and 4.2)….

The *statutory* rules about how a ticket gets served is in 28-1593. Service of uniform traffic ticket and complaint,see also 28-1592. Commencement of action. Continue reading Process Servers and Arizona’s Rules of Civil Procedure

Driver convicted in Colorado horn-honking incident

If you haven’t yet seen the actual video of the incident, it’s really remarkable.

Kudos to the Colorado Highway Patrol (and the prosecutors) for actually investigating; and bringing the driver to justice.

According to the Daily Camera, driver “James Ernst pleaded guilty to two counts of harassment — a Class 3 misdemeanor — and two counts of improper use of a horn — a traffic offense”, and received 12 months probation, including a court-ordered anger management class. Continue reading Driver convicted in Colorado horn-honking incident

Bill makes harassing a ped or cyclist illegal

[Update as of 2/23/2012, HB2528 it is not assigned to any committee which I imagine means it is dead]

It’s the start of a new legislative season in Arizona, the 51st Regular session, for those keeping track. (find other bills of interest with the legislation tag)

HB2528 makes it explicitly illegal to harass a pedestrian or bicyclist.

Numerous people have pointed out that the language of the bill is odd in that to be in violation of it, the victim must fall. I’m not sure why it was written that way.

Difficulty of proving Neg Hom

This is why prosecutors don’t like to bring neg homicide charges against drivers who are not impaired. A San Antonio jury found the driver not guilty:

Gilbert John Sullaway Jr., 43, could have faced up to 10 years in prison if found guilty of criminally negligent homicide for the Oct. 1, 2009, deaths of Gregory and Alexandra Bruehler.

The married couple were sharing a tandem bicycle on a wide, paved shoulder of Texas 16 when they were struck by the defendant’s pickup.

— mysanantonio.com

Although there was some wrangling about the driver’s speed and actions just prior to the collision, but the general facts of the case were clear-cut —

a driver left the roadway at speed and rear-ended a pair of cyclists (on a tandem), killing them. There were no visibility limitations; (it was daylight, straight ahead, no sun glare; cyclists were wearing “brightly colored” jerseys… “There’s no explanation as to why he never saw two brightly dressed people riding an 8-foot-long bicycle, Assistant District Attorney Lorina Rummel said”).

The defense, as would be expected, used the there-but-for-the-grace-of-god-go-i argument (But Sullaway’s mistakes that day could have been made by anyone in the courtroom, the defense countered. “Have you ever drifted? Have you ever looked off the roadway?” Mark Stevens asked jurors. “That’s what people do. It doesn’t mean they’re criminals when they do it.”).

For the curious; in Arizona, the neg hom statute ,§13-1102, says the accused must be shown to be criminally negligent

” ‘Criminal negligence’ means… that a person fails to perceive a substantial and unjustifiable risk…
of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a
reasonable person would observe in the situation.