Couple killed while walking on sidewalk

From the never-ending Are Cars Dangerous? and Seriously, how often does this happen? files:

[Final result, seemingly inexplicably, the driver was never charged with any crime, and never issued and citation in connection with the incident]

Randy and Doris Bjerken, of Palmer, Alaska were in town visiting Randy’s dad… out for a stroll at 10AM on Mother’s Day when. BAM! An SUV jumps the curb and wipes them out.

Police say the driver, Andrew Whalen, 23, fell asleep during the May 8 incident and are recommending neg hom charges. Continue reading “Couple killed while walking on sidewalk”

Prescott road-rager found guilty

In an incident where a car driver was driving waaaay too close to cyclist Paul Katan. Katan is a certified cycling instructor and works for Prescott Alternative Transportation.

[dailyCourier]

“…a jury convicted the Jaguar driver, Jack Ingebritson, 64, of misdemeanor (criminal) charges of endangerment and reckless driving. On Tuesday, Prescott City Magistrate Arthur Markham fined Ingebritson $1,500, ordered him to perform 32 hours of community service and go to traffic survival school.”

Inquiring minds wonder: how is it that the trial was in some unspecified June date, and the story just made it to the newspaper on July 14,2010? I tried to look up the court records for the rager, but didn’t find anything (Prescott muni, and justice are not online there).

There was a follow up editoral a few days after the news story.

Did the punishment fit the crime? Were the charges appropriate?

The convicted rager “… admitted that he was five to six inches from the bike, according to the police report.” While Ingebritson was clearly guilty of endangerment, and reckless driving, it seems to me that his actions were an assault; he intentionally placed his weapon a few inches from the victim.

Here is a roundup of Arizona’s assault and endangerment statutes.

The news article refers to “endangerment”; if they are referring to §13-1201. a violation of which is a class 1 misdemeanor, I have to wonder about the magistrate’s judgment — a small fine and a few hours of community service for such a (potentially) dangerous crime?

I’m thinking/wondering if a more appropriate charge would have been assault, and potentially aggravated assault.  “Generally, the essential elements of assault consist of an act intended to cause an apprehension of harmful or offensive contact that causes apprehension of such contact in the victim” [legal-dictionary]. Note that the act does NOT need to result in any actual contact, or any actual physical harm, just creating the apprehension is enough. The guilty man intended to drive very close to the cyclist, it was not accidental.

On the other hand, violation of §13-1203(A)1 is also a class 1 misdemeanor (the same as endangerment, seems a little odd?). To be guilty of aggravated assault, §13-1204, a deadly weapon or dangerous instrument would have had to been used in committing the assault. Personally, I find that multi-ton, multi hundreds of horsepower automobiles can be dangerous instruments. Anyway, aggravated would bump up the crime to some level of felony.

The other charge which the defendant was found guilty of was reckless driving. That would be 28-693, and is a class  2 misdemeanor. Nothing was mentioned regarding the driver’s license of the culprit. Which leads me to believe the magistrate was letting him off too easy.  “In addition, the judge may require the surrender … of any driver license of the convicted person…  and may order the driving privileges of the person to be suspended for a period of not more than ninety days”. Why no revocation, or suspension?

Arizona texting ban dies for real, again

After some lazerous-like moments, the Arizona legislature finally killed a texting ban for this session. SB1334, (select 49th Legislature, 2nd regular session before clicking). [news item1] … “S1334, a bill to ban texting while driving sailed through the Senate early in the session, but it stalled in the House and never received a hearing. The bill was sponsored by Sen. Al Melvin, a Tucson Republican, and it’s likely to come back again next year”.[azcapitoltimes news item] (Republican Andy Biggs is the chairman of the House Transportation Committee)

The usual complaints from the we-already-have-enough-laws legislators were successful once again, despite a groundswell of diverse support.  For example typical sentiments at the time that Phoenix Banned Text Messaging “Sen. Ron Gould, R-Lake Havasu City, (at the time) chairman of the Senate Transportation Committee, said there are enough laws against distracted driving. He said further legislation is a waste of time. ‘If it comes to my committee I would hold it,’ Gould said”.

More recently, in March Gould said (in the video news piece) that if you really want to improve safety, you ought to ban talking on cell phones. And I agree. He, of course, doesn’t support such a ban; he supports neither.

Arizona sees surge in DUIs tied to medicine

Arizona sees surge in DUIs tied to medicine; AZ Republic, 4/08/2010.The gist of the article is that there is better detection; resulting in more DUI’s for non-alcohol.

One wonders how this ties into crashes involving injuries and death. Is blood routinely drawn, even when the driver passes field sobriety tests, as was the case of the dump truck driver who killed 4 motorcyclists recently?

Apparently blood was drawn from the driver who killed Allen Johnson — the investigation of which dragged on for 5 months culminating in a traffic ticket. Conversely, presumably no blood was drawn from the driver who killed Jerome Featherman. That case wrapped up with a couple of traffic tickets more-or-less immediately. Both cases were handled by the Pima County Sheriff’s Office, and in both cases impairment was not suspected. Was the driver who killed Featherman under any influence of prescription drugs? We’ll never know for sure.

It seems to me that blood should be drawn in any serious injury crash, and most certainly in EVERY crash involving a fatality. What are the rules?

Another problem is what to do with the results; The 21 year-old driver who killed Lance Adams (walking on the SIDEWALK, for cryin’ out loud!) was never charged despite Ambien (sleeping pill) , Darvon (a narcotic pain reliever),  plus some marijuana in his blood. In that case, police recommended charges but the prosecutor wouldn’t bring any. Setting the marijuana aside; the warning for both these medicines has warnings not to drive (as do many, many medicines).

Background Info on drug impairment

Ambien / Zolpidem

Zolpidem (sold under the brand name Ambien) is a short-acting nonbenzodiazepine hypnotic with quick onset, and short (2 – 2.6hrs) half-life. It is well known that it can cause driving impairment, particularly when not taken as directed.

In hunting around for quantitative info on Ambien impairment, I ran across work from WSLH, the Wisconsin State Laboratory for Hygiene. Within their perview is the Medical Toxicology Section which performs alcohol and drug analysis for law enforcement agencies in support of Wisconsin law enforcement. Zolpidem Impaired Drivers in Wisconsin A Six Year Retrospective, William R. Johnson, et al. [.ppt of presentation][view online]

A white paper from the IECP :  Zolpidem and Driving – A Dangerous Mix [.pdf][view online] has some useful summaries.

Some interesting info on voluntary vs. involuntary acts with respect to drug DUI from this CA defense attorney firm.

Here are two published papers, with PubMed link (and also, click on either and check out the “related”):

Ambien/zolpidem prescribing info – warnings (emphasis added): “Patients should be cautioned against engaging in hazardous occupations requiring complete mental alertness or motor coordination such as operating machinery or driving a motor vehicle after ingesting the drug, including potential impairment of the performance of such activities that may occur the day following ingestion of Ambien”

Here’s a handy reference list to drugs/driving: nhtsa.gov/people/injury/research/job185drugs/index.htm

FARS coding: positive results for drugs shows up in the field DSTATUS=2 (i.e. “test given”) and DRUGRES1, 2, or 3 have a number between 1 and 996; all in the person table. Zolpidem (Ambien) is 375. See pages 579-594 of the FARS Coding and Validation Manual. The coding for drug results in FARS is similar to the alcohol scheme, except there are no quantitative results, only positive/negative.

600-695 CANNABINOID
600 Delta 9
601 Hashish Oil
602 Hashish
603 Marijuana
604 Marinol
605 Tetrahydrocannabinoid
606 THC
695 “Cannabinoid, Type Unknown”

illiam R. Johnson

Christmas Eve ’07 crash trial, verdict: guilty

This has been a long and arduous journey legal journey (continuing on as of 2014 still dealing with pcr motions. And I see a number of pro per motions in Oct 2016).  The human and societal costs are staggering.

For starters, one victim, a motorist, dead. A number of injured motorists. The suspect, locked up since the crash on December 24, 2007.

Christopher Lee Smith, 32 years old, stands accused of DUI and manslaughter in a wrong-way, head-on collision on Pecos Road near 14th Street in Phoenix, AZ.

According to the Ahwatukee Foothills news story; “At the time of the crash, Smith was on probation for a previous misdemeanor DUI…” Continue reading “Christmas Eve ’07 crash trial, verdict: guilty”

Nevada High Court Says Pharmacies Can’t Be Sued for Death

This story about who can and can’t be sued in the case of wrongful death is interesting to those who follow such matters; Nevada High Court Says Pharmacies Can’t Be Sued for Death, WSJ 12/26/2009.

I was more interested in a habitual prescription drug abuser who killed this guy and served a whopping 9-months. 9-months!  She killed one guy and seriously injured another according to the article.

“…Ms. Copening was driving a Dodge Durango when she hit two delivery men who were standing on the shoulder of a highway, killing one and severely injuring the other. In Ms. Copening’s car, police found prescription bottles and loose pills. Police reports said she appeared confused, and a blood test detected the painkiller hydrocodone. Ms. Copening pleaded guilty to two counts of reckless driving and served nine months in jail”

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.”


Ped Seriously injured by Driver at driveway

 

In echos of the stroller death, years later May of 2018 Pedestrian seriously injured following crash in Phoenix it seems that someone was walking on the sidewalk near 15th ave and fillmore in what appears to be a residential neighborhood when a driver ran over him while turning into a driveway. (a driveway is part of the sidewalk)

 …a man who was driving down a dark street overnight didn’t see the victim on the sidewalk.
That’s when the driver hit the pedestrian as he pulled into his driveway… Impairment is suspected with respect to the pedestrian’s actions, according to Phoenix police.

By “pedestrian’s actions” i don’t know if they mean the pedestrian lept in front of the moving car, regardless… If it’s too dark for a driver to see, then the driver must slow down; stopping if necessary, and has complete responsibility for ensuring the sidewalk is clear before crossing it. Even if it’s “his” driveway.

Motorist Doctor Convicted on all counts

[This article about the 2009 Doctor-criminal in LA, has become a repository of these flagrant, intentional acts, with the advent of omnipresent video recording, these incidents which at one time would have just been he-said-she-said types to things and brushed off, are becoming more frequently heard about;  jump down]

In a highly unusual incident, Physician Christopher Thomas Thompson was convicted on all charges in a Los Angeles court, including multiple felonies of intentionally causing a crash that seriously injured two bicyclist. Continue reading “Motorist Doctor Convicted on all counts”

Crime and punishment

[for more current information on 28-672, see this article]

Most traffic infractions in Arizona are strictly civil matters, if a driver is found responsible he or she is generally subject to a fine of not more than $250 (§28-1598), and no jail time is possible. Some infractions specify their own penalties, for example the “Three foot rule” (§28-735) includes enhanced penalties of up to $500 or $1000 if a motorist seriously injures or kills a cyclist when overtaking unsafely (the enhance penalty does not apply if a bike lane is “present and passable”).

A handful of infractions specify criminal penalties, for example DUI, excessive speed, reckless driving. These are in and of themselves relatively minor criminal offenses, for example excessive speed is a class 3 misdemeanor (the least serious criminal classification).

If the conduct results in a serious injury or death, AND the police/prosecutor believe that the conduct was “criminally” reckless/negligent, then we leave the realm of traffic law and enter the generic assault or homicide laws; i.e. Arizona has no  “Homicide by Vehicle” statute (perhaps we need one?). According to wikipedia, Arizona is one of only 3 states that lacks such a law. Vehicular homicide laws, though, are both a blessing and a curse — they make it easy for prosecutors to charge, but at the same time they are generally very low-level crimes (unless aggravated by, e.g., DUI).

That being said, there is one more statute of interest, §28-672, that “criminalizes” simple negligence when death or serious injury results, but only for a prescribed set of infractions:

  • §28-645(A)3(a): Running a red light
  • §28-729: failure to drive in one lane
  • §28-771: failure to yield to vehicle on the right (generally applies to uncontrolled intersections)
  • §28-772: Bad left
  • §28-773: drive out at stop sign (see also, 855B, below).
  • §28-792: Running down a pedestrian in a marked OR UNMARKED crosswalk
  • §28-794: Not exercising due care around a pedestrian
  • §28-797 subsection F, G, H, or I:  Disobeying various school zone rules
  • §28-855(B): Running a stop sign
  • §28-857(A): Disobeying school bus stop signs

 

There are a couple of related statutes, §28-675 and §28-676 , that have more serious penalties for exactly the same list of infractions as with 28-672, but apply if the driver’s license has been yanked (and only when yanked for cause relating to previous illegal bad driving).

Although the penalties are relatively minor, it would seem this is a good start. But. It appears to me that this law if rarely charged. Why not?

Ok, so here’s the thing. Despite what would have to be a very common crime, there appear to be no more than a handful of these cases (I’ve outlined a couple of them here). Consider that just in the city of Phoenix, every year there are ~ 160 fatalies, and ~ 1,600 serious injuries (there are ~ 16,000 injuries, and ~ 10,000 injury collisions.  The city’s stats don’t break down serious vs. non-serious. A 10% rate is to be expected). [These are the 2007 figures from the City of Phoenix]

So how many of these 1,700 or so cases result in 28-672 charges? The most serious recklessness cases become homicide/aggravated assault. In some cases, the driver is injuring/killing himself, so no charges would be possible. And the biggest exclusion is many of these don’t stem from a moving violation that is included in the definition.

Who is at fault in a left-turn collision?

A high profile collision involving a school bus turning left at a signal, still under investigation — the news article doesn’t let on who the police believe is responsible for the collision that killed two motorists. The collision occurred in Phoenix at Union Hills Drive, and 12th Street. The speed of the car was reportedly excessive. The bus was turning left, and the car was straight-through; this is a signalized intersection; the news story doesn’t give any indication of the status of the signal. Continue reading “Who is at fault in a left-turn collision?”

Who’s Responsible?

There is a claim floating around that some study has concluded that motorists are responsible for some 90% of car-bike collisions.

This would be a lot higher than is generally appreciated. I’ve grappled with this a little bit before in Understanding Collision Summaries, where I pointed out an inexplicably high proportion of  “other” violations assigned to bicyclists.

So far, I’ve found a page at projectfreeride.org with a table that is said to be source from Tomlinson, David. Conflicts Between Cyclists and Motorists in Toronto, Canada. Link to a .pdf on the Velomondial.net.

The same claim can be found in a newslettery article dated Aug 19, 2009 on a University of Toronto website entitled Smart Cycling. the information was supplied by a physcian, Dr. Chris Cavacuti, who is also involved with projectfreeride. And a correction with that article that was posted Aug 26:

In the interview, Dr. Cavacuiti is quoted as saying “The [Toronto Collision] study concluded that cyclists are the cause of less than 10 per cent of bike-car accidents”. Dr. Cavacuiti has asked us to make readers aware that the Toronto Collision study was actually designed to look at the cause of bicycle/motorist collisions but not culpability.

It is actually several studies conducted by the Charles Komanoff and member of the Right of Way organization in New York that concluded that concluded that cyclists were strictly culpable for less than 10 per cent of bike-car accidents.

Dr. Cavacuiti would like to apologize for any confusion this error may have caused.

On the projectfreeride page,  in a statement summarizing Tomlinson’s findings, the page at projectfreeride says “In fact, cyclists are the cause of less than 10% of bike-car accidents in this study”. Is that really what Tomlinson found? Or should the correction mentioned above be also applied to the projectfreeride page too?

This claim got picked up by the Freakonomics blog, garnering wide exposure.

Skepticism at the commuteorlando blog. Links the 90% claim back to Komanoff’s group Killed by Automobile paper. More links here on cycledog.

(more to come…)

See my own figures for manner-and-fault-in-bicyclist-traffic-fatalities-arizona-2009 which, according to the police reports/investigation, found motorists most-at-fault in about 50% of fatal traffic collisions between a MV and bicyclist in 2009.

92-year-old jailed for DUI

I don’t normally like to comment on these far-afield stories but this one is particularly crazy.

It seems that 92-year-old Clifford Allen was convicted of his second DUI (second within six years,  one wonders if there are more?) this triggers some sort of mandatory sentence and landed him in the county lockup, when some sort of residential rehab fell through. Continue reading “92-year-old jailed for DUI”

Photo unit snaps GOP party chief speeding 109 mph

This is just too wild to not comment on. Never a dull moment here in Arizona with respect to photo enforcement! Two weeks ago the world’s first photo radar murder and now we have a politician (he’s not a legislator, he works for the party) *arrested* for criminal speeding and reckless driving.

How will this play with the County Attorney’s pronouncement (see Thomas says no to criminal speeding) that he will not prosecute any criminal case based solely on photo evidence? Continue reading “Photo unit snaps GOP party chief speeding 109 mph”

Negligent driver who killed 5 gets 1-year sentence

At this stage, with the investigation into Allen Johnson’s death still pending — there is understandably a lot of conjecture regarding what charges may be brought, or not brought, as the case may be.

I’ve seen this movie before, and the outcome is (almost) always the same — there are only two things that (reliably) bring criminal charges. They are DUI and leaving the scene.

If the exception proves the rule, and I think it does, take a deep breath and read the results of this quintuple homicide. This case gives one answer to the question: exactly what can a negligent driver do (besides the two aforementioned things) to get indicted for murder?

Laurie Roberts did a great job of bringing this story to light in her column (alternately see Laurie’s blog and entry on the same subject and the aftermath). A news story ran in the East Valley Tribune.

Roberts writes: “Then he did the smartest thing he could do. He hired Larry Kazan, the Valley’s go-to attorney for bad drivers – the ones who can afford him, that is”

The synopsis is, in case the links to those stories disappear: Robert Logan Myers III plead guilty to five counts of Neg Hom stemming from a collision where he was speeding and ran a red light colliding with a left-turner. In the deal where he got 1 year in jail (the nominal sentence would be 5 time 2.5 years), work release for 16 hours a day, 7 days a week, payment of restitution of about $451,000, 4 years of probation. No mention of his driver’s license — of course how would he get back and forth from jail every day without one?!

The outcome of this, albeit highly unusual prosection, makes me wonder if pursuing criminal charges, heretofore what I considered the “holy grail” of holding someone responsible is the way to go. There must be a better way. ??