Tag Archives: 28-672

Alleged red-light runner hits 3 bicyclists, 1 dead in Mesa

12/19/2014 ~ 11am. Elderly male driver of minivan apparently ran red light southbound Gilbert Road, killing bicyclist (not released) and injuring 2 others; as they passed through the intersection of Gilbert Road and 8th Ave (apparently 8th Ave is Pueblo Ave on the east side) in Mesa, AZ Continue reading Alleged red-light runner hits 3 bicyclists, 1 dead in Mesa

Chandler officers killed in separate wrecks

The Chandler police force is reeling from the deaths of two officers only three days apart in unrelated traffic collisions…

(on-duty) City of Chandler Police “Officer David Payne, 37, was sitting on his police motorcycle at a red light at about 12:40 a.m. 10/31/2014 Friday when a car rear-ended him at the intersection of Chandler Boulevard and Pennington Drive.” Causing his death. “Police arrested Tempe resident Brian Yazzie, 31, on suspicion of manslaughter and hit-and-run for his role in the collision”. Oh yeah,  plus his license was suspended in (and, presumably, since) 2010. — azcentral

Continue reading Chandler officers killed in separate wrecks

3 year-old squashed to death in crosswalk

tundra-stroller
Drivers operating pickups and other so-called “light trucks and vans” account for a disproportionate amount of pedestrian fatalities; but nobody seems to care…

3 year-old Anthony Meade was squashed to death in crosswalk at 20th and Camelback Rd, Phoenix on 12/4/2013 ~ 7:30PM. The driver (whose name apparently has not been released and is referred to only as a 26-year-old) was driving a 2009 Toyota Tundra, a large pickup…

All parties were northbound; the driver making a left from 20th Street onto Camelback, and the peds were crossing Camelback at the intersection. Continue reading 3 year-old squashed to death in crosswalk

SENTENCING: Barrow’s Neurologist killed by hit-and-run Driver

[ Linsk got pulled over and arrested AGAIN after serving his trivial sentence, 12/17/2014: Driving on suspended license: TR2014159525000, East Mesa Justice Court , a citation for unsafe lane change (presumably the reason he was pulled over) were dismissed. ] Continue reading SENTENCING: Barrow’s Neurologist killed by hit-and-run Driver

11-year-old killed in crosswalk collision

An 82-year old motorist turning left onto Union Hills from 15th Avenue struck and killed an 11-year old girl riding in the crosswalk on August 5, 2010. The girl was heading southbound on the west side (i.e. going with the flow of adjacent traffic).

Names have not been released, Phoenix Police officer “Martos said the woman was not impaired and likely will not be charged. Police are still investigating.”

I’m not familiar with this area or intersection [google maps], though Union Hills Dr appears to be a typical Phoenix “car sewer”; 5 lanes of rush rush.

The mechanics of the collision are very similar to Maxwell v. Gossett, where the Arizona Supreme court found for the cyclist, and against the motorist who was turning through the crosswalk. If anything, this is a stronger case for the bicyclist, given the direction.

The so-called “left cross” is a common mode of collision; Bradley Jason Scott [tbagblog] was killed on Tempe a few weeks ago in a left cross (but not involving a crosswalk).

[azfamily][arizonarepublic][kpho] The kpho piece says in part that “police are trying to determine if she was riding the crosswalk or in the street, because, police say, it is illegal to ride in a crosswalk…”

Where does such patently false, mis-information come from?

Is it legal to ride in a crosswalk?

Setting aside the issue on the relative merits of sidewalk cycling…

By way of some more background on the legality of cycling in crosswalks; an analysis prepared by the Tuscon City Attorney’s office in 1998 found that (my emphasis) “…it is apparent that under the present state of law in Arizona a bicyclist is not prohibited from riding on or across a crosswalk…”.

It’s worth pointing out that this conclusion was reached in Tucson where it is patently illegal to cycle on the sidewalk. I am not aware of any Phoenix ordinance that affects crosswalks, thus we would fall back to the same cases and Arizona statutes analyzed in the above memo.

That being said, saying something is not prohibited is not the same as saying that the car driver must be automatically at fault, e.g. “the court held that bicyclists must still exercise due care and concern for their safety while about to enter or in the crosswalk”.

Please see Sidwalk Cycling in Arizona for more details and references, especially Maxwell v. Gossett.

The Police Report

This is adot incident 2414621 and Phoenix Incident number 10001096939 [I had gotten the number off by a digit from phoenix traffic records, I may have written it down wrong, in any event that caused a large delay in analysis. Victim Madeleine Pila Driver: Marguerite Savarese.

The ACR is available from the city of Phoenix online, there is presumably a DR as well available from Records but I do not have that.

The narrative in its entirety is succinct and very descriptive:

Traffic unit 1 (pedalcyclist) was riding her bicycle southbound in the crosswalk on the west side of the intersection of North 15th Avenue and West Union Hills Drive. Traffic unit 2 (vehicle) was making a left hand turn from northbound 15th Avenue to westbound Union Hills Drive. Unit 2 collided with unit 1 in the marked crosswalk. As a result of the collision, the operartor of unit 1 was pronouced dead at the collision scene by responding paramedics

THE TRAFFIC UNITS ARE LISTED ALPHABETICALLY BY LAST NAME

Note that in Arizona, “Unit #1 is the vehicle, pedestrian, pedalcycle or animal rider that caused the collision or was most at fault” (refer to ADOT AZ Crash Manual; links here), there is no provision for assigning units in any other way. To do so destroys the usefulness of statistics in the ADOT crash database (ALISS). If police are going to do this, it should be corrected before submitted for final inclusion in the database — was this done? It’s not clear; but given that the driver was never cited for any infraction (according to case lookup), it appears the investigation results stand as initially entered.

Though there would seem to be no confusion in assigning fault, the cyclist was for no apparent reason listed in Block 20, Violations/Behaviors  “13. Failed to keep in proper lane”. This is nonsensical. From the narrative the cyclists should have been assigned “1. No Improper Action”. See Maxwell v. Gossett for further verification that the cyclist was doing nothing whatsoever wrong in riding through a crosswalk.

Though there seems to be no confusion about what the driver did, the driver was listed in Block 20, Violations/Behaviors  “16. Inattention/Distraction”. That may well be true, however, it is apparent from the narrative that the driver committed a “7. Made Improper Turn”

In short, the driver was most-at-fault, and should have been assigned unit number 1 along with the violation/behavior noted above, and should have been cited (according to court records, the driver was not cited).

There is also an apparent error on the ACR but doesn’t affect the outcome, Block 14 Type of intersection is marked as “12 (Controlled Access Area) Intersection Related”. The intersection is not in a controlled access area (a.k.a. a freeway interchange) and should presumable be “2 Intersection Related”.

The ADOT Database Record

This is IncidentID = 2414621  In addtion to what was described above as errors done by the investigating officer on the ACR (and signed off on by a supervisor), the following errors and inconsistencies were noted in the ADOT crash database record:

  • AlcoholUseFlag: 1 (but that is not supported by the report?)

 

Why does Phoenix Get it Wrong, and why does Scottdale get it right?

I have no idea. I have informed Phx PD VCU at least twice (once while the investigation was still supposed to be open, and again in May 2012 when I reviewed Phoenix fatalities). They have steadfastly refused do the right thing; claiming their mis-handling of crosswalk cases is ” based on a sound and experienced understanding of the law along with the guidance of Department, City, and County Attorneys”. Their conclusions appear to directly contradict Maxwell., and indeed those I’ve contacted seem to have never even heard of it.

Consider the case of a 12-year-old boy in Scottsdale struck while proceeding straight in a crosswalk who was struck and seriously injured by a left-turning driver. This is exactly the same configuration as the Pila fatality. However Scottsdale PD not only cited the driver for a bad turn, but also charged him with 28-672, a misdemeanor. Phoenix rewards dangerous, inept drivers with NO_IMPROPER_ACTION while Scottsdale punishes them with criminal charges.

So, apparently Phoenix’s city attorney or Police Department knows something that Scottsdale’s doesn’t, or vice-versa. And of course the County Attorney is one-in-the-same (I mean: Scottsdale and Phoenix are both in the same county); and of course the same state laws exist in both cities — there was no mention of any city codes in the Pila report. I don’t believe any of it, I’m willing to guess no attorney ever reviewed it (I mean for citations; i imagine the case received perfunctory review for negligent homicide charges)

Botched LAPD investigation

This has many of the similar elements of botching as PPD above, the belief, not based on any law, that it’s somehow illegal to ride in a crosswalk, soapboxla explains:

On Monday, June 1, 2009 at approximately noon, a woman rode her bicycle on the sidewalk of Louise Avenue in the valley. As she approached the intersection of Valerio she rode into the intersection on an unmarked crosswalk. At the same time a large truck approached the intersection on Valerio and proceeded to turn right onto Louise. The cyclist and the truck collided, she fell to the ground and the truck crushed her head as she lay on the street.

…But especially disturbing is the resulting confusion during the investigation of the incident and the confusion over “the rules of the road.”

Councilman Smith’s office responded to the incident the next day and explained, via email, that “the bicyclist was reportedly riding on the wrong side of the roadway and traveling against the traffic flow; making her the initial “primary cause” of this tragedy.” The email went on to detail the law enforcement experience of Councilman Smith, Chief of Staff Mitch Englander and Public Safety Deputy Jim Dellinger.

The LAPD’s Public Information Officer confirmed the report that the LAPD considered the cyclist the “primary cause” of the incident because she was riding a bike in a crosswalk which is a violation of CVC 21200 which requires a cyclist to obey the rules of the road. The PIO explained that a cyclist must either dismount at crosswalks or ride on the right side of the road with traffic.

The legal statues, codes, and ordinances are detailed at bicyclelaw.com’s blog — they happen to be analogous to Arizona’s state statutes and Phoenix’s ordinances.

 

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.

This sad sad sad story, and some of the Phoenix Police’s response reminds me of  a quote from Mr. Burn of The Simpsons:  “Beep Beep out of my way I’m a motorist” Wiggum “that some nice reckless driving Mr. B”

By the way, the outcome on public access shows up as something I don’t understand — normally the outcome would be either guilty/responsibile, or not responsible, or dismissed, or somesuch… what this about bail forfeited?

Case Number: M-0741-4090176

YIELD TO PED REQ FROM ALLEY/DRIVEWAY 11/24/2009 BAIL/DEPOSIT GIVEN/FORFEITED

IMPROPER TINTING OF WINDOWS 11/24/2009 BAIL/DEPOSIT GIVEN/FORFEITED

By the way, this crash shows the dramatic shortcoming of 28-672 “causing death or serious injury by moving violation”. The driver was plainly at fault, and plainly committed a moving violation, but because that particular violation isn’t on the list of infractions that triggers 28-672, nothing more serious than the ticket for failing to yield could be brought.


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.


Phoenix Police Press Release at time of crash:

 

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.”

28-672 in the news

[28-672, 675 & 676 was updated in 53rd2nd legi HB2522  (2018) It generally makes penalites stiffer while maintaining the underlying laws.  Direct link to 53rd2nd chapter 310, and the .pdf version. ]

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

Arizona has no vehicular homicide law, it does however since 1998 have a law, §28-672, ” Causing serious physical injury or death by a moving violation” (and some companion laws 28-675 and 6 which work in an analogous fashion). The catch is that in order to be charged with 28-672, the driver must have been engaging in one or more of a specific list of infractions. For example, running a red light. Continue reading 28-672 in the news