Paterson Signs Two Traffic Justice Bills Into Law

On Friday evening, New York Governor David Paterson signed two bills intended to make streets safer by giving law enforcement greater leeway to bring charges against reckless drivers.

alg_children.jpgDiego Martinez and Hayley Ng were killed when a van left idling and unattended careened backwards into a group of pre-schoolers on a Chinatown sidewalk. The driver was not charged.

As Streetsblog readers are well aware, New York City pedestrians and cyclists are seriously injured or killed by vehicular mayhem on a daily basis, but in the vast majority of cases, the motorist remains free to get right back behind the wheel. Even on crowded city streets, it’s exceedingly rare for drivers who maim or kill to face consequences more serious than a traffic ticket.

One reason prosecutors hesitate to bring charges is that the standards for proving criminal negligence or recklessness can be difficult to meet. Hayley and Diego’s Law, sponsored by Dan Squadron in the State Senate and Brian Kavanagh in the Assembly, creates an intermediate charge — a traffic violation called careless driving — which prosecutors can use in cases where criminal convictions seem unlikely. Motorists found guilty of careless driving will have to complete a driver education course and face fines up to $750, jail time up to 15 days, and license suspensions up to six months — or a year for repeat offenders.

"We expect that the NYPD and District Attorneys are always looking at all the
different options to hold people accountable for actions that lead to
injuries and deaths," said Transportation Alternatives’ senior policy advisor Peter Goldwasser. "With this law, we expect that they will be able to
do that to an even greater degree and create a deterrent effect."

Joseph McCormack, chief of the Vehicular Crimes Bureau at the Bronx District Attorney’s office, said he would have applied the careless driving charge to Randolph Belle, the motorist who executed an illegal U-Turn on West Kingsbridge Road last week, causing a livery cab driver to veer into a bus shelter, killing one person and severely injuring several others.

McCormack decided not to press charges based on a 2008 case, People v. McGrantham, in which the Court of Appeals — the highest court in New York state — ruled that limousine driver James McGrantham was not guilty of criminal negligence after he entered the Belt Parkway at night going the wrong direction, then executed a U-Turn in the middle of the highway instead of pulling over outside the flow of traffic to correct course. A motorcyclist coming around a curve crashed into the limo and died.

Paterson signed a second law on Friday that should also keep dangerous drivers off the road. Under Elle’s Law, any driver who causes serious physical injury to
another person while committing a traffic violation will automatically have his or
her license suspended for a period of six months by the DMV. Drivers who have been
involved in any similar incidents within the previous five years will
have their licenses suspended for a full year.

Upper East Side representative Micah Kellner introduced the bill after Elle Vanderberghe, 3 years old at the time, suffered serious brain injuries when a motorist backed up through a crosswalk on 82nd Street to grab an open parking space. "I think a lot of folks want to believe that our streets are safe, but they’re clearly not," said Kellner. "One thing we need to make clear is that driving is a privilege, not a right, and if you’re going to endanger the public welfare, we’re going to take that privilege away from you."

Together, Elle’s Law and Hayley and Diego’s Law should result in more consistent revocation of driving privileges after people commit dangerous acts behind the wheel. And while the system of license suspensions in New York suffers from a revolving door problem, the new laws may lead to suspensions that carry greater consequences. A Court of Appeals ruling earlier this year, in People v. Caban, holds that driving with a suspended license can be used as evidence of criminal negligence, if the suspension was due to unsafe driving.

It will take years to assess the full impact of Hayley and Diego’s Law, but a similar law that passed in Oregon a few years ago should give New Yorkers a good idea of the challenges to expect.

The Oregon statute differs from Hayley and Diego’s Law in that the officer
has to actively determine that someone was driving carelessly, said attorney Bob Mionske, who writes the Road Rights column for Bicycling Magazine. Under
New York’s law, there’s a presumption that the driver was at fault in
some crashes. "It shifts the burden," said Mionske. "You’re sort of on the cutting edge in New York."

Despite
its differences, Oregon’s vulnerable users law remains the closest
comparison to New York’s. "Here, it’s made a big difference," argued
Ray Thomas, another bike lawyer. "The options are so limited in terms
of what can be done in most cases," he said. Another infraction
adds to the enforcement toolkit. He pointed to the
high-publicity case of a Portland bus driver who hit five pedestrians
in a crosswalk, killing two; the driver was prosecuted under the
vulnerable users law.

Thomas admitted,
though, that the state law hasn’t shown equal benefit everywhere in
Oregon. Though prominent in Portland, said Thomas, "across the state,
law enforcement has been slow or reluctant to use it." He attributed the uneven application to two things that many police departments and district
attorneys want to avoid: "New thinking and more work."

The Oregon law also hasn’t penetrated public perception very widely. Estimating
how many Oregonians were aware of the law, Mionske guessed "less than
3 percent, and they’re the ones already in the choir." Comparing careless
driving to drunk driving, Mionske said that there will be a real deterrent
effect when law enforcement and advocates join forces to create "a ripple of
fear through the driving community." That hasn’t happened with the
vulnerable users law, yet. 

What
both Mionske and Thomas
implied is that once legislation like Hayley and Diego’s Law goes into effect, law enforcement needs to buy
into it. Then, in each city and
town, the enforcement effort must be accompanied by a coordinated campaign to inform people of the new
consequences of careless driving.

In New York, where traffic violations cause serious injuries with terrible frequency, Hayley and Diego’s Law should become a commonly applied legal tool as soon as it takes effect. "If it’s only used 50 percent of the time it’s applicable, you could still see it being used almost every other day," said Goldwasser, noting that frequent application of the law must come first, before public awareness will follow. "The district attorneys have to use it, the press has to pick it up, and people have to see that it exists, and that careless driving has consequences."

  • ddartley

    “Under New York’s law, there’s a presumption that the driver was at fault in some crashes.”

    Having read the law, I don’t see that. Someone please tell me how I’m wrong. I wish it were clearly the case, but as I commented the other day, I’m skeptical.

    Insights, anyone?

  • This is a turning point. When combining these two laws and the fact – as described in the DOT’s pedestrian safety report – that a large volume of severe injuries is caused by drivers refusing to yield at intersections or not paying attention, we should see a good number of them being suspended.
    Now let’s hope NYPD is on our side…

  • Peter

    Ddartley:

    Here is the section of the law which lays out the presumption–it’s not written in the most clear of ways, but as Ben says, it now puts the burden on the defendant to affirmatively establish that his or her failure to exercise due care did not actually cause the injury or death. As to your earlier question, there is actually a pretty substantial amount of existing case law where the definition of due care, and what it means to not exercise it, is clearly spelled out. In short, a prosecutor could make a compelling case that the commission of almost all moving violations shows a lack of due care, e.g., crossing the double yellow line to make a u-turn, or speeding, or failing to yield to a pedestrian in a cross walk.

    IF SUCH DRIVER OF A MOTOR VEHICLE CAUSES SERIOUS PHYSICAL INJURY
    21 WHILE FAILING TO EXERCISE DUE CARE IN VIOLATION OF SUBDIVISION (A) OF
    22 THIS SECTION, THEN THERE SHALL BE A REBUTTABLE PRESUMPTION THAT, AS A
    23 RESULT OF SUCH FAILURE TO EXERCISE DUE CARE, SUCH PERSON OPERATED THE
    24 MOTOR VEHICLE IN A MANNER THAT CAUSED SUCH SERIOUS PHYSICAL INJURY.

  • BicyclesOnly

    I’ve always been a bit ambivalent about these “namesake laws” because they seem to stand for the principle that clearly necessary legislation has to wait for a suitably appealing person to be victimized before it can be enacted in their name. But that’s just a detail. I’m very eager to see police and prosecutors in NY finally begin creating some consequences for careless drivers.

  • I wish it were legal to leave flyers under windshield wipers solely for the purpose of educating drivers in my area about these two new laws.

    This should be the subject of a major media campaign to build awareness. And AAA should alert their membership!

  • BicyclesOnly

    Failed to mention it last night, but Transportation Alternatives staff and in particular General Counsel Peter Goldwasser deserve great credit for their part in making this legislation happen. Even though Albany arguably hit its nadir of dysfunction this year, we’ve nonetheless had a number of livable streets legislative victories, including bus cams, Leandra’s Law, and now these two groundbreaking laws.

    Such exciting times to be doing this work. On every front, we’re making tremendous strides in transforming our streets, that will affect many NYers lives for decades to come.

    Can’t stop now!

  • david wilson

    There was a third cycling safety law passed in Albany this year as well – the Safe Passing law – also known as Merrill’s Law – which requires motorists to pass cyslists “at a safe distance” when passing them on the left. This law was proposed after a cycling advocate in Westchester was sideswiped by a county bus, and no charges were filed.

    This law will work together wtih the other laws to determine what “due care” might be. Certainly passing at a safe distance is one of them. DMV now has to embark on an education campaign to fit all these new laws understandable to the driving public.

    – David Wilson, Westchester Cycle Club president

  • ddartley

    Thanks Peter.

    Now how can we most effectively push DAs to use the law?

    I hope it gets applied all the time. If it does, then I too am hopeful that it will wear away on the popular, terrible attitude that careless driving is not really any big shame.

  • JkAllen

    Let’s not forget that most “careless driving” equates to stupid people driving and we all know you can’t fix stupid. You can however, make it illegal for stupid to drive, which is always a good thing In my opinion.

  • Ray

    “One reason prosecutors hesitate to bring charges is that the standards for proving criminal negligence or recklessness can be difficult to meet.”

    Maybe in New York.
    But not in Ellis County in Texas.
    If you are a cyclist.

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