Fines total $248 for falling asleep, killing father of three

A woman committed negligence but not a crime when she fell asleep at the wheel of a Honda Odyssey and killed a 29-year-old man riding a bike in Menasha last June, Winnebago County prosecutors have decided.

Based on the decision, police will issue Carol Noskowiak citations for operating left of center and inattentive driving, in the death of Joshua Schubert. The fines total $248.

Crash reports say Noskowiak, 58, worked an overnight shift at the Home Instead Senior Center from 9 p.m. to 8 a.m. June 15, then started to drive home with traces of a prescription sedative in her system. (She had been taking the medication with no problems for at least two years).

Driving west on Valley Road in Menasha, she fell asleep, crossed the center line and crashed into Schubert, who was biking eastbound with his wife about 8:35 a.m.

The father of three died four days later.

Winnebago County Asst. Dist. Atty. Anthony Prekop reviewed the case and determined he would not be able to prove Noskowiak committed criminal negligence, under current state law. That law would require Prekop to convince a jury that Noskowiak knew or should have known that her actions were likely to hurt or kill someone.

She worked a night shift, felt tired and fell asleep at the wheel.

“How do you convince a jury of her peers that this is criminal behavior?” Prekop said. “We are bound by what the legislature dictates.”

Like other prosecutors in similar cases, Prekop said that an additional law would provide a valuable alternative between civil citations issued and a felony charge – homicide by negligent operation of a vehicle – which carries a potential 10-year prison term.

“Additional charges can improve our range, increase our menu of options, and I don’t think that’s a bad thing,” Prekop said.

Prekop’s finding in the Noskowiak case tracks along a decision made in 2012 by Wisconsin Atty. Gen. Brad Schimel, who declined to issue a criminal charge against a 22-year-old who fell asleep at the wheel, crossed the center line and killed a man riding a bike in the opposite direction. Schimel, then the Waukesha County District Attorney, said he could not prove the driver committed a crime under the current statutes.

Fall asleep while driving tired after working a late shift and taking a sedative? You might kill an innocent father of three. Forget to bring the glasses you need to see and drive anyway? You might get off with a fine after you kill a woman wearing a high visibility jacket. But a father has to tell his children their mother is dead. Even if our District Attorneys feel they could not prove guilt given our current state laws, the consequences of driving a car while we are impaired in any way can be tragically fatal.

Driving a motor vehicle has become akin to chewing gum in our society. We can do it while we do other things, when we are tired, when we can’t see, while we are looking at our phone, and even after we have been drinking. We all shoulder an immense responsibility to ensure the safety of others when we get behind the wheel of a motor vehicle. Even if our actions are technically “legal” under current law, the consequences of driving while impaired or distracted are too much to leave to chance.

If we are tired, we should take a quick nap before driving and be late for our next appointment, rather than drive on roads shared by more vulnerable users. If we can’t quite see because of the rain, sun or vision problems, we should slow to a speed where we can react in time to avoid hitting a person walking, on a bicycle or motorcycle. Even if there are no significant legal consequences for simple negligence while driving, the human cost for those mistakes can never be repaid.

For the past five years, the Wisconsin Bike Fed has pursued a vulnerable user law to fill that prosecutorial gap, to provide a middle ground, a misdemeanor charge that could be issued when a driver’s illegal action causes a death or great bodily harm. We will continue to work to get those penalty enhancers added so prosecutors have some legal recourse in these tragic cases.

As always, we like to remind everyone that despite these tragic fatal crashes, millions of kids and adults ride bicycles without incident every year. The crash rate in Wisconsin has been declining for decades and when you factor in the health benefits of cycling, it is probably safer than driving a car.

22 thoughts on “Fines total $248 for falling asleep, killing father of three

  1. That is false. If you fall asleep at the wheel you do have a reasonable expectation that you will hurt or kill someone. They should prosecute. They just don’t want to because they don’t think cyclists should be on the road at all.

    • While I agree with you Bob, many juries are made up of people who routinely drive when tired, or impaired in other ways. I wish it were different, but I understand why many DA’s won’t bring these cases to trial until we change the laws. The Bike Fed has not given up on getting penalty enhancers added to our vulnerable users law.

      • I Feel more should have been done, isn’t driving under the influence a crime? My heart broke for his family, to have to tell your kids Dad is not going to make it or coming home.
        I watched this couple start their life together he was a good man,husband an father. I just do not understand at all a fine?

        • Sorry to hear this tragic, avoidable death affected you personally Beth. I understand the frustration people feel, which is why we are working so hard to change the laws. We got close, with a unanimous, bi-partisan vote, but at the last minute a few legislators objected and they stripped out the penalty enhancers. To help explain the problem with proving simple negligence and why many DA’s don’t try those cases, read this blog post from a couple years ago.

        • Sorry to hear this tragic, avoidable death affected you personally Beth. I understand the frustration people feel, which is why we are working so hard to change the laws. We got close, with a unanimous, bi-partisan vote, but at the last minute a few legislators objected and they stripped out the penalty enhancers. To help explain the problem with proving simple negligence and why many DA’s don’t try those cases, read this blog post from a couple years ago.

  2. Outrage de jour vis-a-vis cycling the roadways of America.

    Imagine for a moment if this same driver, instead killing an innocent victim with her car, let her child die in that very same automobile on a hot summer day locked inside with windows up; people all across the country would be outraged! Leave a toddler next to a swimming pool who falls in and drowns while the mother or father is inside chatting, texting, FB’ing, or Snapchatting on her phone? The same outrage ensues. Leave a child at home only to find a loaded gun which kills a sibling while the parent runs to the store? These situations would be a case for child protective services to be called and serious consequences far-far beyond a mere $250 fine; clearly negligent actions that might very well result in the loss of parental rights in the least.

    But let a cyclist get mowed down by driver of an automobile or truck clearly being negligent by any definition of the word (regardless the legal standard for prosecution and conviction)? A $250 fine and she gets to keep her license and car (apparently). Thousands of humans die annually on the roads of America (including cyclists and other drivers) due to negligent operation of cars and trucks, yet in all too many cases the courts either won’t or can’t hold those responsible fully accountable. It’s a crying shame because the whole concept of justice is premised on the burdens of life being shared equitably. Where is the equity in this killing of a cyclist with the result that the killer drives away with a $250 fine? Yes, there may very well be some insurability issues here but I see little if anything remotely resembling justice in situations such as this, or as recently published by Bike Fed the situation in northern Wisconsin with the octogenarian who wiped out a cyclist.

    Operating an automobile is, in fact, operating a machine that is just as dangerous and historically more lethal (statistically, especially after adjusting for suicide) than a loaded gun. Point being is that our laws and our awareness need to reflect and rise accordingly the actual instead of the perceptual. I wish the Wisconsin Bike Fed best of luck in supporting a vulnerable user law to fill that “prosecutorial gap,” but imho more needs to be done through a combination of changes to drivers licensing renewal and issuance to include clearly enhanced training and awareness (coupled with testing) of cycling laws and proper driving. In addition, the Idaho Stop would also be a meaningful mechanism to help cyclists avoid issues at stop lights and stop signs. Third, politicians and law enforcement should be highly encouraged (Bike Fed is clearly doing some of this) to spend money and enforce laws that actually make a difference – instead of building more expensive dedicated cycling infrastructure focus on making the roadways we already have more bike friendly by incorporating features such as regularly gapped but narrow rumble strips on the fog line, paving and maintaining the shoulders, and of course stricter enforcement of the 3 ft law.

    • Unfortunately, WISDOT has installed rumbles strips on some highways like US 10 east of Ellsworth (Pierce County) across the entire width of the 3 foot paved shoulder making it useless for bicycling.

      • Gregory, I hope those are older rumble strips. WisDOT now installs much more bicycle friendly fog-line rumble strips that are not raised, have gaps in them, and are only 6 inches wide.

        • Bill,

          I hope you will share your thoughtful comment with your local paper as a letter to the editor. More people than read this blog would benefit from your insight. You are welcome to contact me at Jessica@wisconsinbikefed.org if you need any help or media contacts.

  3. Thanks for reporting on this.

    “How do you convince a jury of her peers that this is criminal behavior?” Prekop said. “We are bound by what the legislature dictates.”

    Like other prosecutors in similar cases, Prekop said that an additional law would provide a valuable alternative between civil citations issued and a felony charge – homicide by negligent operation of a vehicle – which carries a potential 10-year prison term.

    While I have no doubt that the DA would have had a hard time convincing a jury (most likely, they would be all fellow motorists after all), passing the buck to the legislature is BS. We’ll hear the same tired excuses, no matter what kind of laws are on the book. We’ve seen it plenty of times in states that do have vulnerable user laws but still don’t prosecute (let alone convict) anyone under those laws.

    • I agree with you Harald, but we live in a world where I routinely get passed by cars that smell like dope being driven by people with a phone in their other hand. I am all about changing the world, but even if I think it is totally wrong, I understand when a DA doesn’t want to try some of these cases. That said, there are a few DAs who will try these all day long.

  4. “Crash reports say Noskowiak, 58, worked an overnight shift at the Home Instead Senior Center from 9 p.m. to 8 a.m. June 15, then started to drive home with traces of a prescription sedative in her system. (She had been taking the medication with no problems for at least two years).”

    How is this not negligence??? How can a person say that they could not know that this could happen? If traces of a PRESCRIPTION SEDATIVE were found in her system, it should have clearly been printed someplace on that prescription bottle. Sounds like a bunch of BS to me. This person took a beloved father of 3 small children, a loving husband, a great brother, and a wonderful son from his family, and all she gets is $248 in fines. That is just wrong.

    • The key word here is “criminal” negligence vs simple negligence. To prove criminal negligence, a “reasonable” person has to agree that the action is likely to cause harm. Unfortunately, most juries are made up of people who text while driving, drive when tired, drive home after drinking at a restaurant or bar, etc. Many District Attorneys do not want to try cases they don’t think they have a good chance of winning, even if they don’t like it.

      Pretty much every DA we have talked to has agreed that our Vulnerable User bill as originally proposed with the penalty enhancers would have given them an option to try these cases. Sadly the legislature stripped our bill of the penalty enhancers. We hope to try again.

  5. They act like ten years for the felony is too much. Ten years for killing someone in a predictable, almost inevitable, fashion, is getting off light.
    She did not drive for two years in this compromised condition with no problems. She might have gotten away with it, but chances are she had a few scares along the way. But it’s all good until you kill someone, and then it’s still all good.

  6. This a bad decision that needs to be changed. If enough push back on this it could change. Vulnerable user law or not, pressure from enough people, noise by enough peole, anger from enough people can make a difference. I don’t mean any offense but maybe it’s time for a BIKE Lives Matter movement in Wisconsin.

  7. I am trying to get this story to go viral on facebook. I am asking all who see the story to please share. hoping everyone here can help. thank you

  8. I am so disgusted by the out come of what this driver received for killing a innocent father, husband , son that was riding his bicycle on the road and gets hit by a young women that is on drugs , worked a long shift, KILLS and innocent man that did nothing wrong.I think If a jury was selected in our county , court house not guarantee that she would of been convicted and just not with a fine.I feel that this women should of got alot of prison time , thought about what she did , what was if it was her husband, son , daughter, sister, brother, mother , father. Ect. How in gods heaven would she really feel about it.I really think also she should pay for the funeral expanses that’s only fair and just not that ridicules fine.this is just crazy ridicules and nuts.they really need to look more into this further and not let this women just get off on a fine and take this to a different county it might be worth the try.you may never know.God Only Knows That Answer.God Bless The Lost Of The Fathers FamilyWish Them Nothing But The Best.

  9. I don’t think the fine is the issue, the issue is is there a way to have prevented this in the first place and can you prevent the person from doing it again, obviously she should have lost her right to drive for a min of 5 years so she has time to rest..and if you kill a parent you should be required to help support there family for some time.

  10. Roadway Users Responsibility Act 466…. Oct 1, 2006. 346.22 (1)(c)(d)(e) Provides increased penalties for right of way violations causing bodily harm.
    345.60(4) Requires right of way violators who cause a crash to attend a motorcycle awareness course.

    Nothing else you could do? Many a police officer and a few assistant DA have told me ignorance of the law is no excuse. Well, the law is not MY job, but, it is yours. Stop being ignorant. Ever heard of vehicular manslaughter?

    • Mark,

      I’m not sure if your comment is directed at the Bike Fed, the DA, or the law enforcement officers at the crash, but I can assure you we at the Bike Fed are aware of all the statutes you cited. I know that ABATE, who pushed for both 346.22 and 345.60 have sent letters to law enforcement agencies around the state because they feel tickets are not being written when they should be. In this case, 346.22(1)(e), if it had been applicable (I don’t think crossing the centerline is a violation of 346.18, which this statute is predicated on), would have allowed for a $1,000 fine, which still seems to small a penalty to us. Our VU law as originally proposed would have made it a the bill makes the offense a Class B misdemeanor if the violation results in great bodily harm to a vulnerable highway user or a Class A misdemeanor if the violation results in death to a vulnerable highway user. A Class B misdemeanor is punishable by a fine not exceeding $1,000 or imprisonment not exceeding 90 days or both. A Class A misdemeanor is punishable by a fine not exceeding $10,000 or imprisonment not exceeding 9 months or both. – See more at: http://wisconsinbikefed.org/2013/09/16/motorcycle-group-opposes-vulnerable-user-bill/#sthash.3d4BwD2u.dpuf ABATE has a lot more members than we do, so they have more pull in Madison and have had more success getting penalty enhancers passed. Not sure why more people who ride bicycles don’t join the organization that represents their interests, but we will still keep trying.

      We still plan to go back to the legislature and hope to either add those original penalty enhancers to our VU bill or strengthen the penalties in 346.22.

      Regarding vehicular manslaughter, the DA’s in most of these cases do not believe a jury will agree that the negligence rises to the level of criminal negligence required to prove that. They believe it is just simple negligence. I wrote more about that in this blog post.

  11. And in breaking news, the governor has just signed into law SB 338, making it punishable by a fine of $500 to “interfere or attempt to interfere with lawful hunting, fishing, or trapping”, including “Maintaining a visual or physical proximity to the person” or photographing a person two or more times. A third offense within five years is punishable by a $10,000 fine and 9 months imprisonment. Oh, and if you violated this law before it became a law, it can count as a prior offense when it comes to sentencing. We now have a vulnerable users law – hunters, fishers, and trappers are vulnerable users with special protections, bicyclists are not. You are free to interfere with bicyclists by killing them. Just don’t watch a hunter.

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