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This page contains a single entry from the blog posted on May 19, 2010 5:25 PM. The previous post in this blog was Rate-a-Nate, post-season edition. The next post in this blog is Getting to yes. Many more can be found on the main index page or by looking through the archives.

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Wednesday, May 19, 2010

Careless driving that kills people -- not a crime?

The immunity that the Portland police appear to enjoy from effective prosecution by the county district attorney now seems to be extending itself to bus drivers.

As with the cops, however, the taxpayers will pay a big settlement.

Comments (31)

Actually it's pretty easy to get away with killing people by car/bus/truck as long as it is an "accident"...You have to be actively trying to kill someone, or totally reckless, or drunk to face serious criminal charges. Oh you'll get sued and maybe get a traffic ticket but we need to strengthen or write new laws to punish careless drivers.

Big difference between a police shooting and TriMet.

This was ruled an accidental death. That simply means that there was no "crime" of murder/homicide committed; it doesn't mean that TriMet and Ms. Day weren't responsible for it. It just means that the death was not premeditated, intentional, or malicious.

What is cut and dry clear is that there will likely be a wrongful death civil lawsuit and pretty much we all know TriMet will be found guilty (there's no point in suing Ms. Day personally as she has no financial means to pay such a judgement; and it's unlikely she'll have a job for much longer.) TriMet will likely work out an out-of-court settlement, and yes that means taxpayers will foot the bill.

When a police officer shoots someone and a grand jury finds that the officer had a reason to believe he was in imminent harm, it's next to impossible to win a civil suit. Why? Police Officers, due to the nature of their job, have a unique standing in the law to defend themselves, and carry firearms (and in some cases automatic firearms that for most folk would be difficult or illegal to obtain) strictly for that purpose. Bus drivers do not benefit from said legal protection.

The burden of proof is very different in these two cases. In the case of TriMet, like I said - they'll settle out of court - TriMet knows it's in the wrong, and the families have nothing to gain by dragging out a long, painful lawsuit. With Portland Police, the families have a very extensive burden of proof to show that the officers mislead a prior grand jury into believing that they were in danger; or that the risk of danger was somehow misjudged. And that is an extremely high bar to hurdle.

Sorry Jack. You're wrong on this one. There was no intent to kill here. Not to say the driver will not be found guilty in a civil proceeding, but there are truly no winners here. This was a complete and very tragic accident.

A similar incident happened to me. I was driving my car. Going to make a LH turn, and pulled in front of a pedestrian. She walked into the LF fender of my car. I absolutely did not see her, and was more than relieved that I didn't seriously injure her. She is a transplant from the East coast...and honest. She did not make the "best" of the situation by taking advantage of the situation, but did her due diligence, went to the doc, had the xrays done, and other than some minor scrapes and pain, that was it. I sent her flowers and thanked her for her honesty.

Sometimes bad things happen to good people. Sometimes...accidents happen. It isn't fair to criminalize this driver. I cannot imagine how she must feel. And too, I cannot imagine how the victims and their families feel. But I do have a pretty good guess...and it's not warm and fuzzy. My thoughts and prayers go out to all involved in this tragedy.

Negligent homicide is a serious crime. It should be prosecuted in this case.

Oregon lacks a vehicular homicide law. As a result, it's relatively easy to run people down, kill them and get off Scot-free. And, no surprise, it happens. A left turn from the right curb across two lanes of traffic is illegal. It also appears the bus may have been going three times as fast as Tri-Met guidelines allow for a left turn. When drivers break the law and disregard their employer's rules, and deaths -- multiple ones in this case -- result, there should br criminal consequences.

Google this

Careless driving that results in death

and see the trend of many states increasing penalties.

example:

http://www.thedenverchannel.com/news/23520527/detail.html

DENVER -- A bill passed by the Colorado House Tuesday raises the penalty for careless driving resulting in death to an eight-point violation -- putting it on par with reckless driving or driving while ability impaired by alcohol.

Currently , a conviction on careless driving results in a four-point violation.

Lawmakers sought the change after a CALL7 investigation shows that hundreds of Colorado drivers who killed someone on the road were still allowed to drive

That is outrageous. What a sham of an explanation for running over a crowd of people in a crosswalk after making an illegal left turn from a right-hand lane.

Shameful. D.A. Mike Shrunk needs to g-o GO! Waaaaay overdue.

TITLE 16 - CRIMES AND PUNISHMENTS
Chapter 161 — General Provisions, 2009 EDITION
CRIMINAL LIABILITY
161.085 Definitions with respect to culpability. As used in chapter 743, Oregon Laws 1971, and ORS 166.635, unless the context requires otherwise:

****
(10) “Criminal negligence” or “criminally negligent,” when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. [1971 c.743 §7; 1973 c.139 §2]
http://www.leg.state.or.us/ors/161.html


Chapter 163 — Offenses Against Persons
2009 EDITION
****
163.145 Criminally negligent homicide.

(1) A person commits the crime of criminally negligent homicide when, with criminal negligence, the person causes the death of another person.
(2) Criminally negligent homicide is a Class B felony. [1971 c.743 §91; 2003 c.815 §2]
http://www.leg.state.or.us/ors/163.html

RECALL Schrunk!

What is criminally negligent homicide?
Read THIS.

Of course this is AMERIKA, were BLAME, REVENGE, PUNISHMENT is amerikan as apple pie.

No wonder our jails are full of our own citizens, our country is a disgrace.

They call this a Christian country?
What a laugh, its about as non Christian as possible.

Matthew 6:9-15
This, then, is how you should pray: Our Father in heaven, hallowed be your name, your kingdom come, your will be done on earth as it is in heaven. Give us today our daily bread. Forgive us our debts, as we also have forgiven our debtors. And lead us not into temptation, but deliver us from the evil one.For if you forgive men when they sin against you, your heavenly Father will also forgive you. But if you do not forgive men their sins, your Father will not forgive your sins.

Hey Al, go tell that to the dead kids' fathers.

Hey Al, go tell that to the dead kids' fathers.

Accidents happen Jack, people die, what can I say?

READ THIS

I too wish life was perfect, no illness, no death, just love and abundance.

It ain't gonna happen.

I'm sorry for the families, I'm sorry for Sandi Day, but hysterical revenge brings nobody back and solves nothing.

Another 120 will die tomorrow on America's highways, we have to live with it.

It's not "hysterical revenge" to prosecute somebody who hit five people in a crosswalk. People pay criminal fines and go to jail when they carelessly kill people, what can I say?

It's called justice -- you might want to look into it in between your Bible thumping.

The full report is HERE Jack.

Read it thoroughly and then do another blog entry on exactly which parts of it you think are erroneous please.

Enlighten me if you would be so kind.

This is a perfect example of how some people haven't learned the difference between a Problem and an Issue.

Is the TriMet driver going to be back driving a bus?
I don't think that should happen.

I love the objectivity on display here.

Al, 2 people are dead, one in serious condition, and two treated and released because the driver of that 30 ton bus made an illegal left turn RIGHT INTO THEM.

From the report you linked:

"a Tri Met bus made a left turn and hit five pedestrians in a crosswalk at NW Broadway and Glisan. The pedestrians had the lighted “walk” sign and the right-of-way."

"She never got completely into that lane, which would have been the correct lane from which to make this left turn."

"the fact that the turn was an unlawful left turn that crossed two traffic lanes instead of coming from the proper (left or south) lane on Glisan"

"Kurronen concluded that the victims were walking legally with the right-of-way, and that the driver, Ms. Day, was at fault for this crash."

"Officer Kurronen concluded that the driver was entirely at fault in causing this crash."

"This case, with the driver being either inattentive or unable to see, possibly both, while engaging in an unlawful left turn, may well involve civil negligence, but the grand jury concluded that it is not chargeable as criminally negligent homicide."

I don't see what the argument is about. The AG empaneled a Grand Jury, which is what he's supposed to do; they looked at criminally negligent homicide and chose not to indict. Is that the right decision? Well, without being in the jury room during the investigation, or having the records unsealed, we'll never know.

What we do know, however, is that this report is basically a 7- or 8-figure paycheck from TriMet to the families of the victims, which we all get to have deducted from our bank accounts. There's no way they don't win a civil suit with this document alone, due to the quotes above.

Fred, esteemed blogger Camelopardalis has done an excellent post on why the grand jury decision is exactly the correct one.

Read her explanation HERE!

I can't improve on her work on this topic.

And of course they win the civil suit, even that does not bring the dead back to life.

But its Amerika, money will make the world right?

Amerika the beautiful, land of liberty, justice, and freedom, the automobile, mansions, Macdonalds, Wallmart, SUV's, Dancing with the Stars, and LITIGATION!

The police and the DA are simply applying the same standard to the bus driver hittings the peds as they apply to cars or commercial vehicles hitting cyclists.

If you want tougher careless driving criminal laws or stricter enforcement of current laws, it will apply to everyone.

A left turn from the right curb across two lanes of traffic is illegal.

Are you sure that is the case for buses? Is there a stop near that intersection?
For the bus to follow its route, it may not have a choice. I have seen places where buses are allowed to make turns normal drivers cannot because of things like that.

Doesn't mean she was looking though. I can't understand how she didnt see them. The whole front of the bus is one big window.

If you folks haven't seen fellow blogger and bus driver Dan Christensen's excellent expose video of the crash you can see it here:

DAN CHRISTENSEN DOES DETAILED ANALYSIS OF THE TRIMET BUS CRASH HORROR

Does Ms Day own a home? She does have a pension.

If trimet drivers and cops knew they could lose their home and pension this stuff might not happen as much...


Come on, bojack. You're a law professor. You ought to know that:

a) it was the grand jury's decision, not the prosecutors (are you suggesting that the DA didn't want charges and so sandbagged the case--a common accusation when a police shooting goes before a grand jury)

and

b) that the standard for "criminal negligence" was probably not met here.


Criminally negligent homicide (and the more serious charge of manslaughter) are meant, in the vehicular context, for drunks, reckless drivers, and other cases where someone puts the public at risk by wanton careless behavior. The legal question isn't just whether someone died; it's also whether there was criminal negligence.

If they couldn't convince a grand jury of that, do you really think a petit jury will be convinced in a court where proof beyond a reasonable doubt is required?

Sandy Day should be fired from TriMet, and her CDL revoked. She probably should pay a large fine. She might even get sued personally, I don't know?

But a felony rap, and jail? I don't think so.

Come on Jack. Are you saying that every tort that results in death can be classified as homocide? This act certainly meets the standards of a tort but under the current standards of the law I don't think it qualifies as homocide. You'll have to lobby Salem for some change.


Jack,

Did you read the ruling cited in a blog linked to by Al? I'll quote it here:

Criminally negligent homicide is defined at ORS 163.145. One commits this crime by causing the death of another “with criminal negligence,” which is in turn defined at ORS 161.085(10):

“’Criminal negligence’ or ‘criminally negligent,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to beaware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

The crime of “criminally negligent homicide” encompasses more than just cases in which death results from driving. It includes any case in which a defendant causes the death of another by behavior that is “criminally negligent.”

Under Oregon law, this mental state of “criminal negligence” requires more than inadvertence, inattentiveness, or, in driving cases, the added commission of traffic violations. The legislative commentary to the 1971 Criminal Code revision on the (then) new crime of criminally negligent homicide stated that the purpose in defining this crime was to include conduct by a defendant who is unaware of great risk “only because [she] is insensitive to the interests and claims of other persons in society.” (emphasis added).

This insensitivity to the safety and well-being of others must then produce a “gross deviation” from the standard of care that a reasonable person would use.

Historically, most vehicular homicides are charged as Manslaughter I or II because they involve intoxicated drivers who also speed, make unsafe passes, run stop signs or red lights, and engage in other aggravated, aggressive driving. Under Oregon case law, Criminally Negligent Homicide cases typically involve this same level of bad driving, but usually without intoxication. Indicted criminally negligent vehicular homicides are fairly rare since the level of bad driving required by this crime is usually accompanied by intoxication, which then elevates the conduct into the “reckless” category, resulting in a charge of manslaughter.

In Oregon, not every fatal vehicle accident can or should result in felony homicide or other criminal charges, even when caused by a driver committing traffic violation(s) and/or being inattentive. The law requires substantially more egregious conduct to charge a driver with a criminally negligent homicide, with its presumptive prison sentence and many other serious consequences. Drivers who are not charged criminally do not, however, escape the law’s punishment; they are held responsible by a civil lawsuit using the standard of ordinary or “civil” negligence. This lesser form of negligence is generally defined as a failure to use “reasonable care” when acting in a given situation. “Reasonable care” is “what a reasonable person of ordinary prudence would, or would not, do in the same or similar circumstances.” Wollston v. Wells, 297 Or 548 (1984).

It's tempting, when someone is killed in an accident, to demand justice--to demand the book be thrown; on the grounds that no punishment that could be meted out to the offender will equal in severity the death sentence meted out to the victim(s) and their families. But there's a reason we have laws; bad things happen.

There's ample legal precedent that says that even if a prosecutor WERE able to obtain a conviction in this case--said conviction would be thrown out. CNH simply requires a higher level of misconduct than was found in this case.

Thanks for the law review article. She was driving a bus, made a highly illegal turn, and took out five -- count 'em, five -- people. Being "inattentive" to the fact there are FIVE people in a crosswalk with a green light -- if that doesn't satisfy the requisite state of mind for an indictment, I don't know what does.

She engaged in aggravated, aggressive driving. She killed two people and ruined many lives. She should have been indicted.

Jack, I'd vote for you for mayor but not for any position on the bench.


The requisite state of mind is, I think, driving like you utterly don't give a sh*t. Doing 70 through a neighborhood street. Being drunk (though as the article points out, that will generally up things to manslaughter). Playing "chicken". Racing. Those are the sorts of things that get you into negligent-homicide territory.

You might be able to make a case that not noticing a group of people is, in and of itself, evidence of the requisite state of mind--and even convince a jury. But there seems to be case law which makes plain that CNH requires a higher standard of negligence than not paying attention.

At any rate, it appears that despite not winning an indictment for the felony charge, the AG threw as many misdemeanor raps against Ms. Day as he could find. She's probably--as noted above--looking at a substantial fine, the possibility of a bankrupting lawsuit (though as someone noted above--she might well be judgment-proof), and the loss of not only her present job, but her CDL and her career. (Being a professional driver pays pretty well, and requires a fair bit of training--now that's gone). TriMet, for its part, seems rather eager to throw her--pardon the sick irony--under the bus. And given the notoriety of the case, it wouldn't surprise me if she has to ultimately move somewhere else.

Not that any of this isn't deserved--through her negligence, two people died. But I'd rather save prison for people who truly deserve it--intentional criminals, and those who continue to pose a threat to society unless incarcerated. I have no reason to think that either is true for Ms. Day.

Jack's right on this one. Others who think that wasn't a negligent killing and maiming of those poor victims are fooling themselves and over-thinking in classic Portland Nicey Nitwit style. And don't be fooled by another DA-Grand Jury charade, please. What a bunch of soft-headed boobs. Meanwhile, back at the courthouse, a ham sandwich got 20-to-life....Just waiting for some activists to paint a bunch of Tri-Met branded bulls-eyes in crosswalks around town.

What if a bicyclist sneaks up behind you after you check your mirrors and you turn in front of them? They are upended and killed.

Is that negligence upon the driver? Technically the driver is supposed to wait for all objects to pass before turning, regardless if they saw them or not.

I can assess for the fact that downtown has some of the *worst* lighting I have ever seen at night. I am surprised this has not been discussed. Portland has those goofy lights that project all of their light upward rather than down at the street level -- where the light might by chance illuminate pedestrians, fixed objects, and other cars.

Maybe Portland needs some cobra heads in some areas. They have some nice ornamental varieties, too.

At the very least, Portland's lights need to be "capped" at the top to direct light where it needs to go. It is my knowledge that it is just glass on the tops of the lights, which makes no damn sense.

It is a matter of sidewalk safety too. Nobody wants to walk a dark street at night.

Of course, careless driving is indeed a crime. They could kill innocent lives and could not bring that life back. How terrible that is!


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Donald Miller - A Million Miles in a Thousand Years
Mitch Albom - Have a Little Faith
C.S. Lewis - The Magician's Nephew
F. Scott Fitzgerald - The Great Gatsby
William Shakespeare - A Midsummer Night's Dream
Ivan Doig - Bucking the Sun
Penda Diakité - I Lost My Tooth in Africa
Grace Lin - The Year of the Rat
Oscar Hijuelos - Mr. Ives' Christmas
Madeline L'Engle - A Wrinkle in Time
Steven Hart - The Last Three Miles
David Sedaris - Me Talk Pretty One Day
Karen Armstrong - The Spiral Staircase
Charles Larson - The Portland Murders
Adrian Wojnarowski - The Miracle of St. Anthony
William H. Colby - Long Goodbye
Steven D. Stark - Meet the Beatles
Phil Stanford - Portland Confidential
Rick Moody - Garden State
Jonathan Schwartz - All in Good Time
David Sedaris - Dress Your Family in Corduroy and Denim
Anthony Holden - Big Deal
Robert J. Spitzer - The Spirit of Leadership
James McManus - Positively Fifth Street
Jeff Noon - Vurt

Road Work

Miles run year to date: 377
At this date last year: 237
Total run in 2013: 257
In 2012: 129
In 2011: 113
In 2010: 125
In 2009: 67
In 2008: 28
In 2007: 113
In 2006: 100
In 2005: 149
In 2004: 204
In 2003: 269


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