Dave Schlabowske
Bike Czar

Death By Auto

Bicyclists are getting killed by negligent drivers. A proposed law could address the problem.

By , Bike Federation of Wisconsin - Nov 2nd, 2012 11:22 am

Recently two people riding bicycles were killed by drivers who had fallen asleep. In Dane County Carrie J. Pete, 37, was killed in the crash while riding on the right shoulder of Highway M on Oct. 8 when 21-year-old Timothy J. Grulke fell asleep while driving and hit her with his pickup truck. Earlier this summer Robert Gunderson was killed by 20-year-old Andrew S. Yang, 20, when he fell asleep and drifted across the centerline on Woods Rd. in Waukesha County.

Yesterday Tom Held reported on The Active Pursuit that Waukesha County District Attorney Brad Schimel decided Yang should be cited for traffic violations, but he will not be charged with any criminal offense.

Schimel told Held “In order to sustain a criminal charge for causing the death with the motor vehicle, I would need to demonstrate that Mr. Yang engaged in some criminally negligent or reckless conduct. This requires more than just ordinary negligence, but rather an awareness that his conduct was practically certain to result in great bodily harm or death to another. Under the circumstances here, given that Mr. Yang had adequate sleep the night before, did not engage in unreasonably exhausting activities during the day and had not been awake for an unreasonable period of time prior to driving, it would not be possible to obtain a conviction for criminally negligent or reckless conduct. Thus, it is not possible to proceed with criminal charges.”

Held notes that Schimel reached similar conclusions in the fatal crashes that killed Brett Netke and Jeff Littman, both in 2010. Both Littman and Netke were killed while riding properly and legally along the far right hand side of the road when they were hit. Unless the ongoing investigation in the recent crash that killed Carrie Pete uncovers some new evidence, criminal charges seem unlikely in that case as well.

I asked James Scoptur, blogger, Tosa Spokesman rider and attorney with Aiken and Scoptur, if he agrees with the Waukesha DA’s decision not to seek criminal charges. I was curious if a more aggressive or “bicycle friendly” prosecutor might make a different decision.

“The hardest part for the is that his burden of proof is just so high that the reality is that it would probably be a waste of his time and the taxpayer’s money to try the case,” Scoptur told me this morning. “The problem is we have this huge gap between civil and criminal negligence. In a civil case, I only need to prove a person was negligent, but in a criminal case the prosecutor has to prove a much higher level of negligence.”

The way our current laws are written, that is very difficult unless a person was chemically impaired (drunk, stoned, high, etc.) or intentionally tried to hit someone with their motor vehicle Scoptur went on to explain. I then asked if he thought District Attorneys might be more likely to seek criminal charges if Wisconsin had a Vulnerable User law of some kind.

“I have reviewed the Bike Fed’s proposed VU legislation as well as looked at other state’s VU laws. It is definitely a gap filler that would bridge the gap between civil and criminal,” Scoptur replied. “While relatives in these cases can still seek civil damages, that really does serve as much of a deterrent in these cases. You are less likely to commit a crime again if you spend four years in jail than if your insurance company forks over some money.”

Click the image to open a PDF of the Bike Fed’s draft Vulnerable User legislation.

To that end, the Bike Fed is currently working with members of the Wisconsin Legislature to draft a Vulnerable User law that provides a level of punishment beyond a traffic ticket and  better fits the crime when an innocent person is killed. We believe that we need a law that better protects people riding bicycles, walking, law enforcement officials who have someone pulled over and other the vulnerable users of the road to put the scales of justice a bit more in balance.

Stay tuned to this blog for updates on the legislation, and be sure to come to the State Bike Summit to help us put reasonable protections for people on bicycles into law.

Driving offers great freedom, but it should come with equal levels of responsibility for the risk to others if not done with great care. In our busy drive-thru culture, piloting a motor vehicle has become something people do almost without thinking. That needs to change.

This story was originally published by the Bicycle Federation of Wisconsin.

Categories: Bike Czar

8 thoughts on “Bike Czar: Death By Auto”

  1. Tyrell Track Master says:

    Very good proposal!

  2. Jeff says:

    I agree that drivers need to be more careful, and that stronger laws are in order. But I wish you’d also talk about all of the bicyclists who breeze through stoplights and dart through traffic, seemingly asking for trouble. I see this every day to and from work. If bicyclists want to be on the street with vehicles, they need to obey the rules of the road — just like everyone else.

  3. Chris says:

    Couple of comments:

    – Why is the Bike Fed proposing a Vulnerable Highway User law and not a Vulnerable Roadway User law? Breezing through the draft, I see references only to “highways” and not roadways. Are local roads not part of this legislation? Or did I miss something in the draft that clearly defines this?

    – Why is there a need for Vulnerable Road users? Isn’t everyone that uses a highway “vulnerable”? Whether you are wrapped in lycra or wrapped in steel – motor vehicle crashes are a leading cause of death in the U.S. According to the CDC:
    “More than 2.3 million adult drivers and passengers were treated in emergency departments as the result of being injured in motor vehicle crashes in 2009.”

    So if someone falls asleep behind the wheel and kills a motorist vs. a bicyclist – are these treated differently and hence a need for this law? OR would the offender get a slap on the wrist in both cases?

    Depending on that answer (which clearly I have no idea) – shouldn’t everyone on a roadway be considered vulnerable and have stiffer penalities for people that hurt/injure/kill other users on the road?

  4. Hey Jeff,

    Thanks for the comment. The Bike Fed does a ton to educate and encourage people to ride bicycles safely and legally. Take a look at this blog post about rude and illegal behavior by people who ride bicycles:

    And this one about legal but unsafe bicycle riding: http://bfw.org/2012/11/01/fatal-madison-crash-involved-person-riding-on-sidewalk/

    The Wisconsin Bike Fed works at all levels to make Wisconsin a better place to bike. We put as many resources as we have available to address all the Es: Education, Encouragement, Enforcement, and Engineering. We also do a fair bit of Evaluation.

    One important distinction to remember: when a person rides a bicycle illegally or unsafely, they put themselves at risk. When a person drives a car illegally or unsafely, they put innocent people at risk. That is why we feel the punishment should better fit the crime.

    Thanks for reading, writing and riding.

  5. Chris,

    You are absolutely correct, if you drift off and kill another motorist, how is that really different from killing a person on a bike or walking? We discussed this when we were first formulating our plan and drafting the legislation.

    The main reasoning that we (and other states) went with our definition of a vulnerable road user is that while all fatal crashes that kill an innocent person are tragic, vulnerable users deserve special protection because they are at such a higher risk around motor vehicles. Crashes that are minor fender benders with another motor vehicle often kill or maim someone walking or riding a bicycle, as such we feel that people need to have a higher level of vigilance when they are driving around vulnerable users, and there needs to be stiffer penalties for killing/injuring a VU. We hope that this will serve as a greater deterrent, in the same way double fines in work zones are intended to encourage drivers to take greater care. This in no way discounts the loss when an innocent person in another motor vehicle is killed, but in order to kill a person in a motor vehicle, the driver’s actions most likely rise to the level of criminal negligence anyway.

    And the law would cover people on local streets as well.

  6. It is also worth noting that Wisconsin does have a sort of mini vulnerable users law via ACT 173 that focuses on safe passing distance. If people are convicted of passing too closely, they have to take a class and get a suspension if anyone is harmed. As of August 1, 2012, any person who receives a citation and is convicted for failure to yield under Wisconsin statute 346.18 will be required to attend a failure to yield right-of-way course. If the violation results in bodily harm, great bodily harm or death of another, the operating privilege will be suspended:
    -If the violation results in bodily harm, suspension will be for two months.
    -If the violation results in great bodily harm, suspension will be for three months.
    -If the violation results in death of another person, suspension will be for 12 months.
    If an individual’s operating privilege is suspended, they will not be eligible to reinstate until they have successfully completed the failure to yield right-of-way course. The course has been designed to reacquaint drivers with vehicle right-of-way rules and provide awareness of keeping motorcyclists, pedestrians and bicyclists safe. This act is a step in the right direction as it requires a punishment (suspension) and prevention (thru education).

  7. JSeitz says:

    Bicycling Magazine raves about biking the back roads of Wisconsin. Where each of these cyclists was grossly violated and killed wasn’t the back roads but it was still on a Wisconsin road. The DA and subsequent lawyer comments here tell me this is an “ultimate” prove it state on “all” conditions. Until “NON” Vulnerability User law state’s like Wisconsin incorporate the VU law into their legal process I and my six cycling buddies have ruled out next summer’s cycling trip to Wisconsin as a state that is legally “UNSAFE” to ride in. Will also follow-up with Bicycling Magazine to consider publishing a story on all states that have yet to recognize the protective and legal importance for the VU law and what the VU law provides for. DA Schimel and the other counselors may what to go on record to show where they are promoting the VU law vice the overwhelming position to not prosecute. Sad day in the cycling lives of these road killed cyclists and their families. Sad day for you Wisconsin Cheese Heads, as well! js

  8. JSeltz,

    I certainly agree that it is sad when any innocent person is killed through the careless actions of someone driving a motor vehicle. I think you and I also agree that it would send an important message about the responsibility people to other road users we all have when we get behind the wheel of a motor vehicle. Your idea about asking District Attorneys to go on record in support of our proposed VU law is a good one. Remember we do already have Act 173, which is a mini-VU law that increases penalties and requires safety classes for anyone who passes a bicycle too closely and causes injury. It does not go far enough, but it is more than many other states have.

    Absolutely, it is unconscionable that anyone should die because someone is too tired to drive or not paying attention while driving. That said, I disagree with the direct correlation you make between a VU law and the comparative safety of riding a bicycle in one state versus another. First, only four states have passed VU laws, so the choices of where to ride is pretty limited if that is a deal breaker for you. Second, all four states that have passed VU laws have higher crash rates as a percentage of total vehicle crashes and per capita than Wisconsin. So from a pure “safety” standpoint, Wisconsin remains one of the safest states in which to ride a bike. If the statistics about how safe it is to ride a bike in Wisconsin change your mind, shoot me an email at the Wisconsin Bike Fed. I would be happy to give you and your buddies some inside info about great places to ride, bicycle friendly brew pubs around the state, or even where to find the best cheese.

    Thanks for reading, writing and riding,

    The Bike Czar

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