Our laws do not protect us when we ride

Recently two people riding bicycles have been killed when they were hit by cars after the drivers fell asleep. Most recently 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 will 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 that 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.

About Dave Schlabowske, Deputy Director

Dave was the first full-time staff member hired to open the Bike Fed's Milwaukee office 15 years ago. A former professional photographer and life-long Milwaukee resident, Dave likes wool, long rides, sour beer, and a good polar vortex once in a while.

6 thoughts on “Our laws do not protect us when we ride

  1. Let me start by saying I’m not a lawyer, nor am I very well versed with law. I also confess to not having read ALL of the Vulnerable User legislation draft. My understanding from what’s been written, and from the skimming of the draft, is that it would increase the penalties for “vulnerable highway users.” I’m fine with this overall, and agree with it.

    On a more fundamental level, though, I wonder why this “gap filler” is only being provided for “vulnerable highway users,” rather than ALL highway users? My understanding is that were the vulnerable highway users legislation be passed, and the same circumstances happen but involve a car-on-car collision resulting in death, the same gap would be encountered. If I am mistaken, my apologies for my ignorance and my thanks for the clarification! :)

    • Phillip,

      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 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 MV often kill or maim vulnerable users, 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.

  2. What ever happened to you kill someone with a motor vehicle, you are charged (in some fashion) with killing that person? Is human life that cheap?

    • Did you not read the article? I think it’s spelled out pretty clearly there.

      There are over thirty thousand motor vehicle deaths a year in this country, so yes, human life is cheap when it comes to our “right” to drive our sacred motor vehicles in an irresponsible manner. If everybody drove in a responsible manner, that number would drop to near zero. Accidents are almost never due to mechanical failure, rather error in human judgement. You do the math.

  3. 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).

  4. The last paragraph says it all “In our busy drive-thru culture, piloting a motor vehicle has become something people do almost without thinking. That needs to change.”

    It starts with us.

    Go ride your bike!

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