On March 3, 2012 bicyclist Sean Mccarty was riding in a bike lane in north Scottsdale when a motorist for unknown or unstated reasons swerved or drifted partially from Lane 2 into the bike lane, striking and killing the bicyclist. Possible criminal actions on the part of the driver such as excessive speed, or impairment were quickly ruled out by investigators, and the motorist was very quickly issued two traffic citations, 28-735 (the “three foot” rule) and another for 28-815D (driving in a bike lane prohibited); and paid a fine of $420 . Very similar situations occurred in the fatal collisions of both Allen Johnson in Pima County, and Jerome Featherman in Green Valley.
Although strike-from-behind type are relatively rare form of bike-MV collision, they evoke strong emotional reactions. Bicyclists and others wonder, “why no homicide charges?”. Prosecutors have no hesitation in charging impaired drivers, typically with Manslaughter, and result in significant prison sentences for the drivers involved, see for example the deaths of bicyclists Michael Gordon Gray, or Larissa Jean Castilleja, Without impairment, prosecutors virtually  always decline criminal charges; the general explanation is they feel they cannot prove, at least, criminal negligence; the least-culpable criteria for a homicide charge[3. And note that Arizona, unlike almost every other state, has no “vehicular” homicide/assault law].
It is this void that a vulnerable user law (VUL) seeks to fill — the gap between a mere civil traffic citation, and a serious criminal felony charge which can incur a prison sentence. A model VUL generally provides for a low-level criminal conviction that 1) doesn’t require proof of culpability, and 2) includes sanctions including some restitution, suspension of DL privileges, order to attend traffic school, etc.
Arizona already has a law, §28-672, Causing serious physical injury or death by a moving violation .
It allows for very similar sanctions as the model VUL. There are only two substantial differences. First, our 28-672 makes no distinction as to who got injured or killed — motorists, bicyclists, and pedestrian victims are all treated the same. And second, our 28-672 requires a a violation from a specific list of violations, not just any-old violation. As a result not all drivers who cause a serious injury or fatality are “eligible” for 28-672.
But many are… on April 7, 2012, coincidentally just a few weeks after Sean McCarty was killed in Scottsdale and not far away in east Mesa, a driver who admitted she was distracted by her GPS drifted from the travel lane onto the shoulder (or bike lane?), striking a trio of elite cyclists, causing serious injuries. That driver was cited for §28-729 failing to “drive a vehicle as nearly as practicable entirely within a single lane”, and thus also charged with 28-672. This resulted in a sanction of 90-day DL suspension along with significant restitution.
To go back to our first example, in the death of bicyclist Sean McCarty (or similarly; Allen Johnson, or Jerome Featherman), the driver could/should have been cited for 28-729 and charged with 28-672. This would have enabled a judge to dole out a more appropriate sanction, as opposed to a fine of a few hundred dollars.
How many 28-672s are there?
Good question. ADOT/MVD has all the data. Every court in the land (there are many dozens, and possibly hundreds?) is required to submit every traffic infraction to ADOT. ADOT is required to maintain this information for the purposes of DL records, license points, suspensions and so forth. ADOT however, can’t won’t or simply doesn’t share this information. I have no idea why. This information would be valuable for traffic safety research purposes.
In any event, we can do some round numbers estimations… There are about 4,000 person who suffer an “incapacitating injury” (which is the closest thing we have to “serious injury” as specified in 28-672 see footnote 5 for def’n), and another 1,000 who are killed each year in Arizona. Most of these are, by the way, motorists. From this universe we would exclude
- impairment-caused incidents, since the responsible driver can be prosecuted for a felony
- dead themselves, since deceased people can’t be charged
- incidents that do not arise from a 28-672-eligible violation.
And while it’s clear that many, perhaps the large majority, of the 5,000 per year would not be eligible, many — at least hundreds per year — should be. Are there that many? I don’t know, but I don’t think so. Incidents that are or should be 28-672 eligible that I become aware of are tagged.
Pedestrian incidents: are pretty cut-and-dried; peds in a marked OR UNMARKED crosswalk have the right of way (assuming they entered legally), and that violation is eligible for 28-672. Any sort of mid-block collision would mean the driver had the right-of-way (“due care” provisions notwithstanding, and probably unlikely to stick). Most-at-fault rates for ped-MV crashes are about 40:60, that is a ped is most-at-fault 40 percent of the time, and the driver 60 percent. So about 60 percent of ped incidents, with serious injury or fatality, are 28-672 eligible.
Bicyclist incidents: are a mixed bag in terms of 28-672 eligibility. Strike from the rear type collisions within a general-purpose travel lane will generally not be eligible, however, there are not very many of those, and when there are, many times the driver is impaired, enabling felony charges against the driver. Cases where a driver drifts or swerves from a lane, as detailed above, are eligible. Only about 25% of all bike-MV fatalities are strike-from the rear; the balance are a mixed bag, The most obvious cases that are eligible are red-light running, stop sign running, or bad lefts.
MV-only incidents: many will not be eligible because many are single vehicle, and these aren’t usually on the list of eligible violations. A large fraction of MV-MV collisions are rear-end within a lane, where the following driver is violating the basic speed law, 28-701, and is not on the list.
In order to bring a criminal charge, a prosecutor must get involved. I’m not sure exactly how all this fits together, but in the case of a serious crime (any felony?), prosecution must be initiated by a county attorney (and not a city attorney), and charges are brought in county superior court.
In the case of a less serious crime (any misdemeanor?), charges are heard in a municipal or justice court. Charges will normally be brought by a city attorney (though I imagine it’s possible in unincorporated areas that a county attorney can bring the charge to a justice court).
28-672, being a class 3 misdemeanor, then, is a charge heard in municipal or justice court, and is not jury-eligible.
In any event, the city attorney’s offices have to work with their police, and make an effort to bring these charges when they meet the definitions in the law. There was a disturbing memo out of Tucson City Attoney’s office in 2010 that stated their office would never prosecute a 28-672… That it just wasn’t worth their time, or resources. That policy was apparently subsequently reversed; as well it should have been!
28-735 is Arizona’s “three foot” passing law. It requires motorists to pass safely with not less than three feet of clearance. It was passed in 2001  with undoubtedly good intentions and much the same reasoning as today’s VUL supporters have and use.
It has an enhanced penalty when violation results in a serious injury or fatality, of $500 and $1,000. It also has a somewhat onerous provision “section C”, that was added at the last-minute, negating the enhanced penalties “when a designated bicycle lane or path is present and passable”.
It is/was a glaring missed-opportunity that enhanced fines were used instead of simply adding 28-735 to the list that enables 28-672 — which was at the time pure-civil, with an enhanced fine (it was later criminalized).
If the opportunity ever arises to pass legislation; 28-735 should be fixed by removing the BL reference (section C) and the enhanced civil fine (section B) altogether, and adding it to the list of enabling violations for 28-672.
This is another area of keen interest lately; that we need a new distracted driving law to stiffen penalties for distracted drivers. Again, I’m not against stiffening penalties, but we already have 28-672, which doesn’t care why a driver caused a crash.
 It’s not known why the $1,000 enhanced fine of 28-735B was not applied.
 This driver was not impaired, but was charged in a pedestrian death due to distraction report-truck-driver-was-looking-at-phone-in-deadly-crash/
 A civil traffic violation cannot by itself cause any sanction of than a minor monetary fine; and for select violations like red-light running can also require the driver attend Traffic Survival School. Multiple violations with a prescribed period can cause a DL suspension, which can in turn cause more serious charges.
 For much more, including legislative history see 28-672-in-the-news. Note also it has two more-serious cousins, 28-675 and 676 for drivers who are driving on invalid (suspended, revoked, etc) DLs. This link also has the legal definition of “serious injury”.
 Background on Arizona’s “three foot” law, see ThreeFoot.html
 Details on 28-735 as enacted overtaking-bicycles-and-arizonas-three-foot-law
 see more here about the “traffic abstract” that courts must submit to ADOT
By the numbers. Below are counts for the six-year period between 2009-2014, first are total counts, and next are counted by person type (MOTORIST = DRIVER + PASSENGER). Also be aware these are person counts, not incident counts:
select eInjuryStatus, count(*) FROM person GROUP BY 1; select eInjuryStatus MOTORIST, count(*) FROM 2014_person WHERE ePersonType IN ("DRIVER","PASSENGER") AND eInjuryStatus IN ("FATAL","INCAPACITATING_INJURY") GROUP BY 1; select eInjuryStatus PEDESTRIAN, count(*) FROM 2014_person WHERE ePersonType IN ("PEDESTRIAN") AND eInjuryStatus IN ("FATAL","INCAPACITATING_INJURY") GROUP BY 1; select eInjuryStatus BICYCLIST, count(*) FROM 2014_person WHERE ePersonType IN ("PEDALCYCLIST") AND eInjuryStatus IN ("FATAL","INCAPACITATING_INJURY") GROUP BY 1;