Author: ArizonaBikeLaw

Hit and Run (H&R), also called leaving the scene, failure to stop, fleeing the scene, occurs anytime a driver is involved in a collision, and fails to fulfill their duties. These duties include, first and foremost, stopping, and remaining on the scene in order to complete both paperwork-type things like exchange identification, and also include a duty to “render reasonable assistance…” to anyone injured.

>> AN ASIDE: imposing a duty to render aid under pain of imprisonment is a fairly unusual thing under the law. perhaps there’s some latin phrase? to put it another way, most criminal laws specify what things people must not do, not what they must do <<

It will come as no surprise that bicyclists and pedestrians are over-represented as victims of H&R drivers. For example, 24% (6 of 25) of the cyclists killed in Arizona in 2009 were H&R victims (Manner and Fault in Bicyclist Traffic Fatalities: Arizona 2009). Likewise, pedestrian-victim H&R rates are high, 18% nationwide using 1998-2001 FARS data ( DOT HS 809-456 2003). By contrast, only about 2% of  motorists killed are victims of a H&R drivers ( AAA factsheet: “Nearly 1,500 people die annually (1994-2003) in hit and run crashes… Approximately 6 in 10 fatally injured victims are pedestrians” ). Three year averages from Arizona are consistent with these number.

H&R is highly correlated with other illicit behavior, such as DWI/DUI and driving on a suspended or no license.  And alarmingly, things are trending worse: “Between 1998 and 2007, while the total number of annual pedestrian deaths decreased, the proportion of hit-and-run pedestrian deaths has in fact increase” ( Factors associated with hit-and-run pedestrian fatalities and driver identification MacLeod, 2009).

Recognizing that H&R is a particularly odious and cowardly crime, the penalties can be significant. For example, in the case of a serious injury or death, the crime is a class 2/3 felony (2 if the fleeing driver caused the wreck, 3 if not). To put that in perspective, manslaughter is a class 2 (see roundup of homicide types) and only 1st and 2nd degree murder carry the most-serious category of class 1 felony. Below are excerpts involving H&R involving serious injury and death (note the parts in ALL CAPS are from “Joey’s Law” enacted in 2012, discussed below in section on Legislative History).

Felony   Mitigated  Minimum    Presumptive Maximum   Aggra
Class 2  3 years    4 years    5 years     10 years  12.5 years
Class 3  2 years    2.5 years  3.5 years   7 years   8.75 years
Class 4  1 year     1.5 years  2.5 years   3 years   3.75 years
Class 5  .5 years   .75 years  1.5 years   2 years   2.5 years
Class 6  .33 years  .5 years   1 year      1.5 years 2 years

So, in summary, it sounds pretty harsh: somewhere around 3.5 or 5 years in prison, which must run consecutively to any other sentence imposed, and a mandatory 5 year driver’s licence revocation. The prison sentence can vary widely depending on if there are any prior felonies, or mitigating, or aggravating factors. There are even long penalties for the same class of felony as specified in §13-704, if the offense is deemed “dangerous” (it’s not clear to me how that distinction is made) — e.g. the presumptive, first time offender for a dangerous class 2 is 10.5 years.

…

Reality Intrudes

I don’t have any way to extract statistics on sentencing, but it seems like i’ve been noticing case after case with very light sentencing for H&R so here goes the anecdotes.

Cody Ryan Davis Case

Case CR-2010137585 in Maricopa County Superior Court. On July 10, 2010 Moto-cyclist Bradley Scott was killed while proceeding straight through a green signal, “Police (said) video shows Scott was legally riding a bicycle with the flow of traffic”. Hit-and-run driver Cody Ryan Davis was arrested about a week later and subsequently plead guilty in a plea agreement. The main element was a guilty plea to leaving the scene, a class 3 felony. As I read the sentence, he received 1 year (to be served in county jail, not prison; oh, and it includes work release), 3 years of probation, and a handful of seemingly small fines. I don’t know how the 5 year license revocation works, but i am hoping it is automatic, the agreement doesn’t say anything about it. I am told by a source familiar with these matters that this is a pretty standard deal (suspending the sentence).

So I have a bunch of questions: Why a class 3 and not a class 2? It certainly appears Davis was at fault in the collision. But setting that aside, how in the world do they get 1 year for a class 3 felony? 13-702 seems to clearly indicate that no less that 2 years is legal — and that would be including mitigating factors, of which I don’t think there are any; none are mentioned in the agreement.

Was Davis DUI at the time? There is this mention of alcohol in the agreement, during probation Davis may “Not consume or possess any substances containing alcohol”. So since Davis fled and hid out for days, nobody knows legally whether he was or wasn’t. As mentioned previously, H&R drivers are highly correlated with DUI  (MacLeod, 2009). In the event that Davis was DUI, he clearly made the right decision to flee — the DUI would have led to a manslaughter charge (5 years presumptive. And that’s in prison, not county,  and no work release AFAIK).

But that was the whole point in stiffening the penalties for H&R, to remove the incentive to flee.

Nathan Tom Bartley Case

The lead in the yumasun.com story says it all:

The driver in a hit-and-run accident that killed a 15-year-old Yuma boy earlier this year (1/13/2011) will receive probation instead of prison under the terms of a plea agreement.

Nathan Tom Bartley, 18, an Arizona Western College student and football player at the time, pleaded guilty Friday in Yuma County Superior Court to one count of attempted obstruction of criminal justice and one count of tampering with physical evidence. The plea agreement stipulates that he be sentenced to a term of probation.

In return for his guilty plea, a charge of failure to stop at the scene of an accident involving a fatality was dismissed.

This deal was cooked up by the LaPaz County Prosecutor because of a conflict within the Yuma County’s office — the deal, of course had to have been blessed  the (Yuma County Superior) Court. Case number CR-201100131, the case minutes with the actual plead deal aren’t up yet. Since the leaving-the-scene charge was dismissed, that means no license suspension. Nice.

Abigail Allin

Sam Abate was seriously injured while riding his bicycle in Tucson, the driver fled the scene. Police arrested Abigail A. Allin several days later. After a protracted legal goings on (including a legally-interesting case of her withdrawn plea deal going all the way to Court of Appeals); she got incarceration limited to time served (15 months in county jail apparently with releases) and 5 years parole. No prison. Full Story. Her MVD abstract has a blank box under “other” which I believe means the court is suppressing her (what should be automatic, and mandatory) license suspension.

Gary Foshee

Convicted of manslaughter plux 2x endangerment; sentenced to 10.5 years in the death of Russell Jenkins, the hit-and-run and/or additional aggravating circumstances were nowhere to be found in sentencing. I don’t know why.

Benito Gil-Mendoza

Defendant agreed to plea to aggravated assault and hit-and-run. 10 years prison for the assault, and sentence suspended for hit-and-run.  Sentencing document linked here.

Roger Stevenson

Defendant plead guilty to extreme DUI and hit-and-run; sentenced to some probation and an additional 30 days in county (in addition to 150 days served while awaiting). Details, see scottsdale-cyclist-dies-after-hit-and-run-crash.

Laura Flanders

Laura Flanders drove onto the sidewalk and killed Joey Romero; then fled the scene. She was sentenced to 6 year incarceration for negligent homicide, followed by 3 years probation for the hit-and-running. Details. See also, “Joey’s law”, below.

Nicholas Linsk

Nicholas Linsk killed Barrow’s neurologist Dr. Marwan Maalouf  after striking him from behind with his pickup truck while Dr. Marwan was riding in a bike lane; he stopped, but then drove off. Sentencing is scheduled for early September 2013. Details.

Thomas Cole Wuertz

Thomas Cole Wuertz, 22,  ultimately plead guilty to endangerment for the very serious injuries he caused to bicyclist Edward Brennan, 57 on April 3, 2013, In a plea deal that called for no jail time; the hit and run charges were dropped.  No one ever said (publicly, or in the news that i can find) why the more serious charges were dropped. Details at casa-grande-pd-nabs-hit-and-run-suspect. The Casa Grande PD needs to be complimented on their police work in catching the driver.

Other Cases

Others can be found by following the  hit-and-run tag.

The Dirty Secret of Hit-and-run Sentencing

The pattern seems to be hit-and-runners get some prison (either a little or a lot, typically depending solely on whether or not they were caught impaired), and the hit-and-run charge’s sentence gets “suspended” somehow, and never results in any consecutive prison time. This seems to be in direct conflict with the statutory intentions of the hit-and-run law’s penalties. (it’s not even clear if the mandatory 3/5/10 year license revocations are occurring, see the Allin case for more discussion).

The bottom line is these seemingly harsh penalties are nothing more than an illusion, and there remains a strong incentive for impaired drivers to hit-and-run.

Legislative History

Over the years, the H&R statutes hadn’t changed much.  Then relatively recently, legislators recognized the problem that weak penalties for H&R, especially compared to DUI penalties, were encouraging motorists involved in collisions to flee the scene. As a result, penalties were increased twice in the recent past. In 2002, Forty-fifth Legislature Second Regular Session, Chapter 228, added the part about making the prison sentence consecutive (in addition to, as opposed to concurrent which is really like getting no penalty at all) and other penalty. It also added specific, lengthy license revocation period (5/3 years, death or serious / any other injury). “Representative Foster, sponsor of the bill, stated that the law right now requires you to stay and render aid if there is injury or potential death. However, those laws are not being enforced.”

Penalties were increased again in 2007, 48th Legislature, 1st Regular session, Chapter 154 the criminal category of the crime was increased by one across the board. This, for example, elevated a hit and run resulting in a fatal or serious injury to a class 2 (same as manslaughter!), which is where we are today. There was little discussion and the bill passed unanimously according to the minutes of both house and senate transportation committees.

Penalties were increased yet again in 2012 (eff. 8/2/2012), “Joey’s Law”, 50th Legislature, 2nd Regular session, Chapter 191. Senate Bill 1163. For background on the case that inspired Joey Romero’s father to get this law enacted, see driver-gets-6-years-in-sidewalk-killing. The gist of it is putting teeth into 28-661 to require significant (at least 5 years for fatality or serious injury) license revocation; and time spent incarcerated does not count. It’s too soon to know how this will pan out but I feel it is a step in the right direction, as opposed to, say, simply adding more prison time, which as we’ve seen above, never actually gets sentenced anyways. The license revocations should be automatic through already-required court reporting of all (transportation-related) violations to MVD.  This general procedure is explained in some detail so-youve-killed-somebody-with-your-car-now-what and scroll down to “The MVD Abstract”

In 2014, once again, Peoria resident Jesse Romero worked with Rep. Rick Gray, R-Sun City to get the law passed. (effective 7/24/2014) HB2505 51st Legislature, 2nd Regular session (or see chaptered version) modified the H&R laws so that a court must order drug/alcohol screening if the fleeing driver was proven to be impaired based on a “preponderance of the evidence” ; or “reasonable suspicion” depending on which statute. Additionally there was an upgrade in 28-663 to the criminal classifications: “(the new law) makes it a felony for a driver involved in a collision to leave the scene without assisting someone who is injured”; from a M3 to a F6 if drugs/alcohol is shown to be a factor.

OLDER (getting in the wayback machine!)

These are accessible via HeinOnline (which can, among other ways, be accessed with and asu login):

1913

1927 8th Legislature, 4th Special Session, HB2 …Code for the systematic and orderly administation of all matters and affairs directly affecting or concerning the highways of the state… the title goes on for several pages. “It may be cited as The Highway Code.” Ch. 2 p5-???.  Chapter V, Operation of Motor Vehicles — Rules of the road: Section 27 is hit and run, on p.108-109; and is quoted in State v. Lee.

1935 12th Legislature, Regular Session, HB41 Proof of Financial Responsibility… , Ch 45, pages 165-182. [this is a reference only; it just involves revoking driver license for various reasons including hit and run. I didn’t save a copy of session laws]

1950 19th Leg 1st Special Session (This was apparently co-published with 1951/20th legislature in one document), HB5 Regulating Traffic on Highways, Chapter 3, pages 522-598 (So it’s obviously a big bill. Hit and run is on pages 535-536). The modern numbering of 28-661/2/3 correspond (approximately?) to as Sec. 39, 40 and 41. This is confusing because these section numbers seem to only apply to within the bill itself?

1976 32rd Leg 2nd Regular session, Chapter 142 [reference to 28-661 only] Something to do with setting aside judgement, and exceptions.  I didn’t save a copy of the session laws for this.

1977 33rd Leg 1st Regular session, Chapter 142 [reference to 28-661 only] Something to do with exceptions for fines.  I didn’t save a copy of the session laws for this.

1978 33rd Legislature, 2nd Regular Session, HB2025 Crimes and Offenses, Ch. 201 page 677-??? (this bill is a huge rewrite of the entire criminal code, the pages of interest are 833-834). Amended 28-661 to get rid of a mandatory 30 day county jail sentence for hit-run w/death or injury to a class 1 misdemeanor. Amended 28-662 from an unspecified misdemeanor to a class 3.

1980 34th Leg 2nd regular session, SB1046 Crimes – Ordinance Violations – Fines and Imprisonments, Ch. 229  pages 718-741. Bump 28-661 criminal classification from a M1 to F6

1985 37th Leg 1st Regular session, Chapter 364 [reference to 28-661 only] added 28-661 to a list of exceptions for criminal judgement to be set aside in 13-907.  I didn’t save a copy of the session laws, since it’s just a reference.

1986 37th Leg 2nd Regular session, Chapter 248 [reference to 28-661 only] SB1232. Law involving restitution.  I didn’t save a copy of the session laws, since it’s just a reference.

1992  40th Leg 2nd Regular Session, HB2132 vol 2 Session Laws Ch. 330 pages 2012-2026; This was a dui law, did some tinkering with 28-661 that didn’t directly involve dui.

1995 42nd Legislature, 1st Regular Session SB1027, Session Laws Ch. 63 pages 242-243.  This was a bill that up’ed the criminal classifications in 28-661 from an F5 to and F4/3 (4 if caused, 3 if not caused by the hit-and-run driver) for serious injury/death. The classification of non-serious stayed at F6. Some other minor grammatical /clarification type changes.

1996 42nd Legislature, 2nd Regular Session SB1076. Session Laws Ch. 76 p.173-198 (it actually goes on way past that). The name of the bill Title 28 Rewrite — Conforming Legislation; is indeed a major re-shuffling of the enter transportation code; as such 661/2/3 appear in this bill as if all new but that’s not really the case.

The site deadlyroads.com is a pretty good resource, unfortunately, the site doesn’t seem to be updated but still has some well written essays and background info.