Member Guest Post: I'm feeling vulnerable

James is a neighbor I ride with on occasion, a bike fed member and a guest blogger here. He has been feeling a bit squeezed this winter as the piles of snow at the curb effectively narrow the roads.  As an attorney, he has considered his vulnerability from the legal perspective. I have told James, and I can tell you, that he and the Bike Fed are on the same page.  We are currently drafting some vulnerable user legislation that you can learn more about when you attend the Wisconsin Bike Summit, so register today! -Kevin Hardman, Executive Director


I am feeling vulnerable…


Winter is finally here and what little room I have on the road for cycling shrinks even more thanks to snow and plowing.  This means that I, and anyone else riding, will be that much closer to other vehicles on the road.  This is a trickier time of year to ride- conditions aren’t always ideal, space on the roads can be limited, cars have trouble stopping or spin out.  That said, the dangers of riding a bicycle are present year round and not exclusively weather related.

The closer proximity to vehicles got me thinking- what do Wisconsin laws do to deter operators of motor vehicles from driving recklessly and hitting a “vulnerable user”?

The short answer- not much.  Sure, a negligent operator can possibly be sued, but in terms of criminality and deterrence, Wisconsin’s laws fail.  Unless speed or drugs/alcohol played a role in the accident, the elements to meet certain crimes are not present, and thus, the driver will get a small fine, if any punishment at all.  (There were a couple notorious examples of this in Wisconsin in 2011).

Wisconsin does not have what has been termed a “Vulnerable User” law.  A vulnerable user, in the four states that have adopted such laws, means “a person operating a farm tractor or similar vehicle for farm use, a skateboard, roller skates, in-line skates, a scooter, a moped, a bicycle” and in Delaware, a motorcycle.  The idea behind the law is to give extra protection to these vulnerable users of the road (think man/woman on bike, no airbag to deploy vs. a 4-door pickup) and to have a deterrent with some bite for motor vehicle operators who fail to give care around vulnerable users.

The “vulnerable user” law in the four states (Delaware, Oregon, Vermont, New York) is more or less the same.  It punishes inattentive or carless drivers if their offense contributed to “serious physical injury or death of a vulnerable user of a public way.”  (ORS § 811.135 & §4176, Title 21 of the Delaware Code).  The court then has to impose a sentence that requires the offender to complete a traffic safety course and 100-200 hours of community service that include activities related to driver improvement and providing public education on traffic safety.  The court also imposes a fine ($12,500 in Oregon, $550 in Delaware) and suspension of driving privileges.  However, if the driver completes the traffic safety course and community service, the fine and driving suspension is lifted.  Whether an offender has complied or not is established at a mandatory court date- no more just mailing in the check.

Illinois, our neighbor state, has tried numerous times to pass a “vulnerable user” law, but has been unsuccessful.  What did pass was an amendment to Illinois Vehicle Code 625 ILCS 5/11-703.  This amendment provides “a person driving a motor vehicle shall not, in a reckless manner, drive the motor vehicle unnecessarily close to, toward, or near a bicyclist, pedestrian… Every person convicted [of this offense] shall be guilty of a Class A misdemeanor if violation does not result in great bodily harm or disfigurement to another.  If the violation results in great bodily harm or permanent disability or disfigurement of another, the person shall be guilty of a Class 3 felony.”  A Class A misdemeanor is up to 1 year in jail and/or fine up to $2,500.  Class 3 felony is 2 to 5 years in penitentiary and/or fine up to $25,000.

However, the kicker to this amendment is that it applies only to when a vehicle is overtaking another vehicle or pedestrian on the left.  If a motor vehicle operator backs out of a driveway and hits a cyclist, injuring or seriously injuring the cyclist, this amendment would not apply because the motor vehicle was not overtaking on the left.  There are copious amounts of other scenarios where this amendment would not apply, and therefore would not protect cyclists or deter such conduct by a motor vehicle operator.

What is perhaps more important to take away from Illinois is what has been proposed at various times.  The various proposed “vulnerable user” law in Illinois differs significantly from the other four states that have enacted such laws.  I would argue the proposed amendments in Illinois are the better models to follow when Wisconsin enacts a “vulnerable user” law.  (As it should).

Various legislators proposed an amendment to create the offense of infliction of serious physical injury or death to a vulnerable user of a public way.  To prove this offense, a prosecutor would have to show that 1) the driver operated a vehicle upon a highway in Illinois in a careless or reckless manner, 2) caused serious physical injury or death, 3) to a vulnerable user of a public way.  Thus, a prosecutor could show the operator was reckless (more stringent standard) or careless (less stringent standard).  The penalty, upon conviction, would have been a Class A misdemeanor (up to a year in jail), a minimum fine of $12,500, and a suspension of driving privileges.

An amendment to the Illinois Criminal Code, 720 ILCS 5/9-3, was also introduced.  Had it passed, it would have provided that in cases involving reckless homicide where a vulnerable user or users was killed because of the reckless driving of a motor vehicle operator, the penalty for an offender shall be a Class 2 felony (between 3 and 7 years in penitentiary) and a possible maximum fine of $10,000.  If the reckless conduct caused bodily harm to or endangers the bodily safety of a vulnerable user, the offender is guilty of a Class 4 felony (between 1 and 3 years in penitentiary) and a possible maximum fine of $10,000.

The difference between the two proposals, aside from the fact that they are in different section of the Illinois Statutes, is that the first proposal adds “careless” as a manner of operation.  This would be much easier for a prosecutor to prove, thus ensuring punishment and hopefully deterrence.  The second proposal does not use the word careless, but does have very stiff penalties.  It just may be harder to prove the offender committed a crime.  However, that is the exact problem the introduction and/or passing of “vulnerable user” laws seek to deal with currently.

In Wisconsin, reckless driving is operating a vehicle in a manner that would create a substantial and unreasonable risk of death or great bodily harm to another.  Reckless operation of a vehicle is criminal negligence.  Carelessness is more akin to negligence- a person failing to exercise ordinary care in a certain situation.

There are three important parts to the various Illinois model proposals.  First is that the prosecutor needs to prove reckless or careless operation of a vehicle, in which a vulnerable user is seriously injured or killed.  This lessens the standard a prosecutor needs to charge someone with a crime when a motorist strikes a vulnerable user and seriously injures or kills that vulnerable user.  This allows the gap to be filled in the law.  No longer can a motorist in this situation claim “I didn’t see the cyclist” or “I only took my eyes off the road for a second”, and thus be punished by a small fine, if punished at all.  Should a motorist try to use that as a defense, the driver will have admitted to acting carelessly, though not recklessly, and thus would have violated the “vulnerable user” law.

The second important part of the proposed law is that the penalties are stiff.  Using the carless/reckless standard in the first proposal, the penalty is a Class A misdemeanor and a minimum mandatory substantial fine.  In cases involving reckless homicide (a vulnerable user or users was killed) the penalty is a Class 2 felony (minimum of 3 years, maximum of 7 years in State Penitentiary) and a maximum fine of $10,000.  If the reckless conduct causes bodily harm to or endangers the bodily safety of a vulnerable user or users, the penalty is a Class 4 felony (minimum of 1 year, maximum of 3 years in a State Penitentiary) and a maximum fine of $10,000.

Third, under this proposed model, operating a vehicle in a careless or reckless manner must result in serious [great] bodily injury or death of a vulnerable user.  (In Wisconsin, great bodily harm is “bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.  Wis. Stat. § 939.22(14).)  This is a public policy interest and it benefits the careless or reckless operator.  All four states with this law have this clause.  It ensures that a person is not charged with this crime if a vulnerable user has suffered only minor injuries, if any.

Why is what legislators in Illinois proposed the model to follow?  Because either proposal has TEETH.  The model laws are a true deterrent and would establish penalties with bite.  Unlike the other four states with such a law, there would be mandatory jail time.  There would also be a mandatory substantial fine, or the potential of a fine, up to $10,000.  There is no “you get off easy” if you complete a traffic safety course and community service.  The proposed Illinois laws are if you operate a vehicle in a reckless manner, and seriously injure or kill a vulnerable user of the road, you will be punished!  No slap on the wrist, apologies to injured vulnerable user.  Model laws like this demonstrate that vulnerable users of the road matter and have a right to be on the road, and their rights will be enforced.  Such proposed laws also serve to deter vehicle operators from acting in a reckless manner while operating a vehicle, especially around those that are vulnerable while on the roadway.

Vulnerable users in Wisconsin would benefit from either of the models proposed in Illinois, or a hybrid of the two.  Wisconsin currently does not do enough to protect vulnerable users.  (A fine of $25 to $200 can be imposed if a driver does not give a cyclist 3 feet when passing, and that is really only issued if the cyclist is injured and the car doesn’t speed away never to be seen again).  As stated earlier, a vulnerable user law based upon what Illinois proposed has great deterrent potential.  The purpose of codifying certain acts as “criminal” is to prevent such acts, or in the alternative, to punish such actions if someone commits a punishable offense.  A “vulnerable user” law with actual bite serves this purpose.  A slap on the wrist does nothing.  People get speeding tickets, and while they may be cautious for a while, they will eventually speed again.  A ticket is not a deterrent.  Prison time, along with a mandatory monetary punishment, is definitely a deterrent.

And in the end, that is the point.  Many laws, especially criminal, are promulgated and codified to deter people from performing actions that hurt, injure, kill or damage people or property.  If the law is violated, then the law is in place to punish.  But in order for that purpose to be fulfilled, the penalty for the legal violation, especially when someone is seriously injured or killed, must be stiff.

The reality is that more and more people are using bikes for transportation and recreation.  The law affords cyclists the right to be on the roads, and now the law must do more to protect those users and encourage everyone to be safe and aware on the roads.  Really, it is just an equality thing.  After all, we are all equal.

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