How New York Traffic Laws Let Hit-and-Run Killers Drive Away Scot-Free

The scenario repeats itself with alarming frequency. A New York City pedestrian or cyclist is killed by a hit-and-run driver. The driver is eventually located by police, or turns himself in. The driver says he didn’t see the victim, didn’t know he had hit anyone. Prosecutors may or may not issue charges for leaving the scene. No additional charges are filed.

The New York State judicial system offers little relief to loved ones of hit-and-run victims like Roxana Sorina Buta. Photo: DNAinfo

Within the last year, loved ones of Marilyn Dershowitz and Mathieu Lefevre, both killed by hit-and-run truck drivers who escaped charges for taking a life, have suffered the shortcomings of the New York State traffic justice system. The death of Roxana Sorina Buta is another case that points to the inadequacy of New York’s vehicular laws, particularly when compared to those of other states.

On May 24 at approximately 1:30 a.m., Buta was walking across Broadway at 14th Street, in the crosswalk and with the light, when the driver of a dump truck made a right turn, ran her over and kept going, according to reports. In the weeks that followed, with the NYPD investigation seemingly going nowhere, Buta’s mother pleaded for the driver to come forward. On June 12, it was reported that the killer had been identified. The lawyer for Buta’s family said police have since confirmed that the driver is an employee of NYC DOT, and said no charges have been filed by Manhattan District Attorney Cy Vance.

“They’re still investigating and determining whether to charge [the driver] with a crime or not,” attorney Joseph Tacopina told DNAinfo at a gathering on what would have been Buta’s 22nd birthday. “The city is being incredibly derelict in resolving this issue. (Tacopina’s firm has not responded to a Streetsblog request for an interview.)

Though he fled the scene of a fatal crash, thanks in part to porous statutes and judicial rulings that benefit killer motorists, it is unlikely that the driver who ran down Roxana Buta will be charged for causing a death. Even a charge for leaving the scene is no sure thing.

“The leaving the scene statute requires that the driver — whether or not he or she is blameworthy in the crash — knows or has reason to know that personal injury has been caused in order to be criminally charged,” says Nassau County assistant district attorney and traffic law specialist Maureen McCormick. “The fact that the injury results in death is a separate element.”

“There is some logic in the position that a person cannot be criminally charged for something they did not know occurred. The issue is what we can prove in terms of that knowledge.”

In other words, under New York State code, “I didn’t see her” is a credible defense. As we reported following a 2009 Transportation Alternatives traffic justice summit, this is not the case in other jurisdictions.

In Alabama, to cause a death while violating a traffic law is to commit homicide, regardless of intent. The Washington, DC, negligent homicide statute specifically precludes willful or wanton acts, and requires only that a vehicular death be precipitated by careless or reckless driving. A driver convicted of causing death or serious physical injury to a vulnerable user in Oregon must complete a traffic safety course and 100 to 200 hours of community service, or else pay a fine of up to $12,500 and lose his or her license for one year.

In New York, three charges may apply to either a vehicular assault or homicide not involving alcohol or drugs: criminally negligent homicide, second degree manslaughter and depraved indifference murder. McCormick has called the state’s criminally negligent homicide statute “illogical on its face” by virtue of its status as a Class E felony, the least severe of all felony categories. Between 1994 and 2008, there were only 29 indictments for criminally negligent homicide in all of New York State, according to Transportation Alternatives. During that time frame, about 10,000 people died on New York State roadways.

As state law requires proof of what a driver knew at the time of a collision, McCormick says,”The mental states in the homicide charges remain a challenge.”

Another reason for the low number of criminal cases against killer motorists is that prevailing New York case law has little basis in objective criteria. In 2008, the state’s highest court ruled that an unlicensed 17-year-old driver was not criminally liable for a high-speed crash that killed three passengers because he was incapable of perceiving the risk of his actions. Though McCormick says prosecutors hoped that case would prove an aberration, subsequent rulings continue to favor drivers who kill.

“Thus,” says McCormick, “law enforcement and prosecutors remain perplexed about what reckless or criminally negligent actions the court will consider to be criminal when a death has been caused.”

All of which compounds the anguish experienced by family and friends who have lost someone to traffic violence. Said Roxana Buta’s mother, Cristina Oprea: “If you have the truck and the driver, why is the guy not a suspect? Why is he not arrested? He killed my daughter.”

  • Anonymous

    It’s unreal to me that hitting and/or running over someone isn’t “reason to know that personal injury has been caused.”

    How oblivious and irresponsible do you have to be as a driver to not know you hit someone?

    When you run over a drink cup with your car you notice it.

    I am struggling to think of a situation where you hit a person and can legitimately claim to be ignorant of it.

  • With “Strict Liability” laws in Denmark and The Netherlands, it’s ALWAYS the motorist at fault when they collide with vulnerable road users like pedestrians and cyclists … http://www.copenhagenize.com/2010/02/strict-liability.html
    The result?  Danish and Dutch drivers are extremely careful and alert, resulting in far fewer fatalities.

    One more great video on the car/bike history of The Netherlands: http://www.youtube.com/watch?v=XuBdf9jYj7o

  • @bggb:disqus :

    In any personal-use vehicle, I agree with this. Even in the biggest SUV and truck models available to everyday drivers, an alert driver has a direct awareness of a collision with a heavy, sturdy object. You would know it if you were hit with a water balloon. 

    It’s perhaps believable that a driver of a heavier vehicle might not be aware of certain collisions with objects. 

    But:
     * There is no reason why there isn’t a separate NYC speed limit for these vehicles, 20mph at all times.
     * Many of these vehicles DO give a clear indication that you’ve run over something big, and the police should re-enact accidents to test out the claims by the drivers.
    * You have to be a specially licensed driver to be able to drive those vehicles, with extra testing, training and responsibilities. The prosecutor’s toolkit here should extend beyond mere criminal charges and prison sentences. 

    And this is just the tip of the iceberg. There is no reason why “unawareness” is a free pass from consequences in this situation. The state can thoroughly revise the law here  – protecting vulnerable users in urban areas with extra travel/driving restrictions on commercial and constructions vehicles, introducing automatic non-criminal penalties for serious injury and death situations, and eliminating the “cop must witness” loopholes in Hayley and Diego’s Law – without affecting the current law for the vast majority of responsible private drivers in the state and certainly without raising cause for reasonable blowback from that population.

  • IsaacB

    Any driver claiming “I didn’t see her” should be breathalyzed and drug-tested. Furthermore, they should be barred from driving until they have had a medical examination.

    The vehicle of any driver claiming “I couldn’t stop” should be taken off the road and inspected for mechanical defects that would prevent stopping.

  • Matt

    “I didn’t see her” should be an admission of guitl

  • Ian Brett Cooper

    As Matt says, “I didn’t see her” is an admission of guilt. You should not be driving over things you don’t see, because they must be in the road ahead of you, and you should be concentrating on where you’re going. If you’re not, that’s the problem. If you can’t see what’s right in front of you, you shouldn’t be on the road – instead, you should turn in your driving license and start using public transport.

  • Anonymous

    Driving in such a way that you can kill someone without noticing it is analogous to shooting bullets into the air. Both should be considered criminal recklessness.

  • Driver

    Brian, you are not totally correct about the special licensing, testing, medical clearance, etc required for driving trucks.  Anyone with a regular license can drive a full size truck as long as the registered weight is under 26,000 lbs. 
    http://tinyurl.com/7rmrk2lA truck similar to the one pictured can legally be registered under 26,000 lbs and can be driven in NY with no training or extra licensing or medical requirements.  It probably weighs about 15,000 lbs empty.

    A 20 mph speed limit does not address the the real problem, which is turning, where blind spots and pedestrian interaction (and many fatal incidents) come into play.  20 mph is obviously nowhere near a safe turning speed. 

  • Driver

     Ian, there is much more to be aware of than just the road in front of you.  People who simply focus on the road in front of them can be very dangerous.  Look at the details of the Matthew Lefevre tragedy to see how this applies. 

  • 20 is plenty

    @SB_Driver:disqus Which is exactly why the citywide speed limit should be 20 mph or lower and actively enforced by the NYPD.  There’s no way for any human brain to process all of the activity happening all around him at speeds higher than that.

  • Driver

     It’s not difficult to be aware of your surroundings while driving, even above 20 or 30 mph.  Particularly on multi lane roads with clear sight lines.  The fact that some people are incapable of doing so or choose not to does not mean it can’t be done by most people.  What we really need are stricter licensing requirements, better driver training, and more enforcement for dangerous and reckless behavior. 

  • Joe R.

    @796a24eba8122f3d83a15f6c05065a51:disqus Your suggestion of actively enforcing a citiwide 20 mph speed limit would actually make things more dangerous. Remember that in order for the NYPD to catch a speeder, they in turn must catch up and pull them over. That means the police cruiser must travel much faster than the car they’re catching which is already speeding. Do you really want large numbers of police cruisers chasing at 50, 60, 70, perhaps even 100 mph on city streets? I sure as heck don’t.

    The only reliable way to slow traffic is to narrow streets and/or make the road less straight. Putting roundabouts at most intersections would force traffic to slow to 20 mph at least at intersections. Intersections are really where you want traffic slowing down. In between intersections the existing 30 mph limit is just fine. In fact, on some roads in the outer boroughs you could even increase that to 40 or 45 without issues. Speeding is only a problem when the driver is otherwise not paying attention to what they’re doing. An inattentive driver is dangerous at any speed. Let’s focus on what really causes crashes. Hint-it isn’t speeding in and of itself unless you’re talking about going WAY above the speed limit. A 20 mph speed limit might be a good idea on residential side streets but not for the entire city. Heck, even as a cyclist I would find 20 mph too restrictive. Keep the limit at 30 mph on arterials but redesign the streets so driving much above 30 mph becomes physically impossible in areas where excessive speed causes issues.

  • Driver

    Joe, a second police car could be used to avoid the pursuit aspect.  A second car ahead could pull in front of or along side the offending car with its lights on, or if there is other traffic, slow the other traffic to force the speeding car to slow down.  The tail officer could then catch up safely and issue the ticket.  The majority of people pulled over are not trying to run from the cops, and will simply stop when requested.  This would of course require direct radio contact between the team officers, which I don’t think is standard police radio procedure, but I’m sure it could be set up. 

    I think slowing down drivers (via speed limit) when conditions don’t warrant it will have the effect of making drivers even more distracted and inattentive.

    The problem still exists that there are too many people on the road who shouldn’t be.  Either because they are incapable of driving safely, or too irresponsible (despite the capacity to drive) to safely be on the road. 

  • We can stop speeding pretty easily:

    1. Speed cameras.  Screw the disingenuous arguments about civil liberties and just install speed cameras all over the city.  Automate the ticketing process and institute enormous fines for repeat offenders. 

    2. Speed enforcement of taxis through GPS data.  Drivers will scream bloody murder but eventually maybe they will realize that AVERAGE speed is more important than doing 40mph for two blocks.  

    Done.

  • Joe R.

    @SB_Driver:disqus I agree 100% that slowing down drivers when conditions don’t warrant it will make things less safe. It’s similar to the effect of last year’s crackdown on bicycles. Instead of a cyclist devoting 100% of their attention to the road, they are instead devoting some attention scanning for police cars.
    I also agree wholeheartedly about the number of people driving who really shouldn’t be. We’ve made obtaining and keeping driver’s licenses way too easy in this country.

    @twitter-1528021:disqus You make a great point about average speeds. I see too many drivers speed a few blocks only to get caught at the next light. Meanwhile, I’ll be doing 20 mph on my bike and will hit that light just as it’s flipping to green, passing the same motorists who sped by me 3 blocks down. The motorists who passed me could have done the exactly same thing. Their average speed over those few blocks would be exactly the same. NYC could do much better making motorists aware of this by having digital signs telling you the exact speed you need to drive to either make the next light, or if the light is red, to reach it just as it’s flipping back to green. This would prevent a lot of pointless speeding.  So would getting rid of as many traffic lights as possible (i.e. the single biggest cause of speeding in NYC is trying to “make the light”) but that’s another topic entirely.

  • North Bellmore Man

    “There is some logic in the position that a person cannot be criminally
    charged for something they did not know occurred. The issue is what we
    can prove in terms of that knowledge.”

    Really!?!

    So, if stand on Canal Street in Lower Manhattan and start firing a gun and I kill someone a few blocks away and then I run away and never know whether or not I hurt or killed anyone, that’s OK? So, I can be as stupid, wreckless and lawless as I want with my car or gun or potential weapon, but if I don’t have “knowledge” of hurting or killing anyone, that’s OK?

    I’m sorry…. BUT THAT IS FUCKING RIDICULOUS.

  • Ian Turner

    @2555783a6f62598b6aadd2d882a4830f:disqus : Note that taxis, who set the tone for all other traffic, have an incentive to gas-brake even if  it does not increase average speeds, because then they can spend more time below the “waiting in traffic” threshold, gaining more fare $$ for the same time and distance.

  • AC

    clothing makes a difference. one time i almost hit someone in my CR-V who was right in front of me. i was making a left turn and waiting for space from oncoming cars. some lady with a walker dressed in black crossing the street. clothing literally blended in to the night sky. luckily i have good reflexes.

  • Expectorator

    So, let me see if I’ve got this straight: If a driver cuts me off and I spit on his car, the driver will hop out and try to beat me up and, if there’s a cop around, the police will most likely empathize with the driver whose precious vehicle has been expectorated upon. But if the driver hits a human being and flees, the very same cop would believe it that the driver didn’t notice the collision.

    In sum: Spit hitting car = Noticeable and punishable by law. Car hitting human = Not noticeable to the driver and not punishable by law.

  • B4d

    Where is the tech?

    A car can’t tell it hit a solid mass of object?
    And warn the driver?

  • Ladyofthelake9083

    In Boston where I live, people constantly walk in front of cars as if they are simply not there.  I have even seen people cross against the light with baby strollers. I agree that drivers probably know that something happened, but if NYC is like Boston, my sympathy is with the drivers.

  • Ian Turner

    @6924b911c315e6308a31e1a8ed8be932:disqus : Most pedestrian fatalities are drivers’ fault, mainly because when pedestrians cross against traffic signals, they tend to look for oncoming traffic, whereas if they have the right of way they may be less vigilant.

    Also, I should note that if one is driving in a place where pedestrians are likely to cross illegally, that makes it even more important to stay aware and drive slowly.

  • The TLC should set the fares to time-based only.  This would encourage taxi drivers to go a slow as possible (increasing safety for everyone) while giving taxi passengers more incentive to support reduced congestion.

    In reply to Ian:
    “Note that taxis, who set the tone for all other traffic, have an incentive to gas-brake even if  it does not increase average speeds, because then they can spend more time below the “waiting in traffic” threshold, gaining more fare $$ for the same time and distance.”

  • I have to agree. There are no guarantees in this regard, we just have to do what we think is best and hope for the best to come out of it. Accidents can always happen but prevention is much more reliable.

  • Any time the brake drums are removed for brake service, the braking surface diameter should be checked with a suitable brake drum micrometer at several points to determine if they are within the safe oversize limit stamped on the brake drum outer surface.

  • Cheruskia

    My daughter was hit by a taxi on Wednesday in NYC while in a crosswalk.   The driver didn’t even get a ticket.   The driver wouldn’t call the police, said he had no phone.  Wouldn’t call dispatch, said he had no radio.   Finally an onlooker volunteered their cell phone to call 911.   What was the point if the driver isn’t guilty?   Now my daughter has to deal with her injuries herself.   Need a good personal injury attorney.

  • @4168fcc7af6bad8828a92d0a5a972f87:disqus : You may want to talk to Steve Vaccaro.

  • AlanBNYC

    Cell phone records should be checked of all drivers involved in all accidents. If found in use, even hands free, the distraction is enough to warrant criminal negligence. A vehicle is a potential weapon in the hands of a distracted driver and should be treated as an assault. It shouldn’t matter at that point whether knowledge of injury is indicated. Drivers who pay attention and yield to pedestrians don’t kill innocent pedestrians.

  • Jane

    suggestion: get the Mythbusters to cover this question: 

    Myth: it’s possible for a driver to run over and kill someone and not even realize it happened
    They’d probably bust it big time.

  • Anonymous

    This is very disheartening. While I agree that a 17 year old, without a license, in the situation described above, could possibly be less aware of the grave consequences of his actions, he still killed three people. I would hate to be a personal injury lawyer handling one of these cases. Talk about frustrating.

  • My brother was killed by a hit and run driver on Nov 2 2012 in Queen NY . I cant belive what im reading about these laws .Since the driver hasn’t been caught yet I could only wonder what would this driver said the day he turns himself in

  • Tj