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.