Salvador Vivas-Diaz was sentenced to the maximum of 16 years in prison after being found guilty of manslaughter after driving drunk and hitting Phoenix PD Officer Shane Figueroa head-on. The officer was responding to a call at the time.
Traffic collisions, not, say, guns, are the leading cause of line-of-duty deaths of police officers. See: More Police Killed by Traffic than Guns.
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. ??
[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. This was done in the aftermath of the killing of Pamela Hesselbacher in a crosswalk by a red-light runner ]
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
Six wrecks in the past few years? Who is this guy’s insurance company? Continue reading Kandas arrested for negligent homicide
UPDATE SEP 22,2010: AFN reports that that there was an injury wreck at 32nd and Pecos resulting from a “bad left”. The 17 y.o. EB driver turned left into the path of the WB driver, who was injured “seriously but not life threatening”. Bad lefts were the cause of both a 2003 fatality and a 2007 very serious injuries; both of those were at 40th and Pecos. Continue reading Pecos Death Trap?
A driver was arrested on suspicion of five counts of manslaughter (see homicide categories) and 3 aggravated assaults. What makes this unusual is the absence of suspicion of DUI. We shall see what the prosecutor does with it. This is a tantalizing comment: “data recorded when the truck’s airbags deployed substantiated detectives’ findings that Myers was driving at ‘an excessive speed,’ “. Data recorder? We (the public) often hear that these sorts of crashes are tragedies but not crimes — because the prosecutor claims that they can’t prove anything. Continue reading Driver arrested in quintuple(!) fatality — excessive speed and red-light-running alledged
ARS §28-1592 specifies the time limit for bringing a civil traffic violation. Sort of like the “statute of limitations” for traffic tickets. The normal limit is 60/90 days, but for alleged violations when there is a wreck and investigation the limit is 180 days, and extends to a full year if a fatality is involved.
The rub is that police (cities? jurisdictions?) won’t issue complaints for a traffic violation if there is any sort of ongoing investigation, an incipient neg hom/manslaughter charge for example… and these things do seem like they can drag on forever. They appear to do this in an overabundance of caution — claiming “double jeopardy” issues. As far as I can tell there can be no double jeopardy between civil and criminal.
The end result is that drivers who would clearly be found responsible for a traffic infraction frequently end up getting off scot free; when the criminal case falls through for whatever reason. See e.g. Kandas. Or sometimes it is just an oversight on the part of police. It seems clear that the driver responsible for the Eades fatality could have / should have been cited for §28-701 “failure to control”.
Talk about getting away with murder…
Yet police didn’t confiscate her driver’s license. Had this been a DUI case, Sgt. Joel Tranter told me, they would have taken it and notified the state Motor Vehicle Division so it could administratively suspend Gilbert’s license. But police don’t pursue DUI charges in manslaughter cases, for fear of jeopardizing the more serious charges.
“The (administrative suspension) law does not apply to homicide or aggravated assault cases because those are criminal,” Tranter explained. “They aren’t traffic investigations.”
In other words, if you drive drunk, you lose your license. But if you drive drunk and kill someone, you can keep driving.
Hentoff [the victim’s family’s attorney] calls the police department’s interpretation of the law “absolutely flawed logic.”
Driver in DUI-death case still at the wheel, Laurie Roberts, The Arizona Republic. Aug. 25, 2007
We’ve heard this double jeopardy business before from the police department, Continue reading Double Jeopardy and Flawed Logic