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DA drops Reckless Driving charge in Stark Street collision

Posted by on September 4th, 2008 at 3:37 pm

“We couldn’t support the mental state required for a criminal prosecution.”
– Gresham DA Ben O’Glasser on his decision to not seek a Reckless Driving charge against Lance Waddy

The Multnomah County District Attorney’s office has elected not to proceed with a Reckless Driving charge against Lance Waddy, the man who let his car veer into Steven Volz while Volz rode his bicycle on SE Stark Street in Gresham.

The collision happened on July 31st on SE Stark Street (just outside Portland city limits). According to reports, Waddy grabbed something from the floor of his car prior to the impact, which threw Volz nearly 140 feet into the air.

Waddy was initially cited at the scene with a host of charges. The most serious of those charges was Reckless Driving, a Class A Misdemeanor crime (which can carry a maximum sentence of one year). (Waddy was cited and then released at the scene after his car was towed. For more information on that, see my follow-up story about enforcement policies).

Because of the criminal Reckless Driving charge, the case was sent to the District Attorney’s office. Ben O’Glasser, a deputy DA in Gresham, received the case. I spoke to Mr. O’Glasser this afternoon and he said he elected to not proceed with the case because, “The main thing is that we couldn’t support the mental state required for a criminal prosecution.”

O’Glasser then referred me to ORS 161.085 (9), which explains the definition of the mental state required for a Reckless charge. Here’s the salient excerpt from that statute:

“…a [reckless] person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

“We’d rather their office try and fail than not try at all.”
– Steve Volz’s lawyer Mark Ginsberg

With the Reckless Driving charge off the table, the case now goes back to the Police. Waddy faces six traffic violations including; driving while uninsured, driving without a license, driving under a suspended license (for not showing up to court for a previous citation), Careless Driving with an accident, and failure to drive within a lane.

In my previous analysis, I assumed this case would trigger Oregon’s new Vulnerable Roadway User law. That law is triggered when someone is charged with Careless Driving after hitting and causing “serious physical injury” to a vulnerable road user. However, according to O’Glasser, Waddy won’t fall under this new law because Steven Volz’s injury does not qualify as a “serious physical injury” under Oregon law.

ORS 161.015 (8) defines “serious physical injury” as a,

“physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”

Volz suffered a fractured rib, a broken collarbone and a broken scapula.

In an email, Volz wrote that he was “frustrated to hear about the DA’s decision,” and that he and his lawyer Mark Ginsberg worked to try and convince them otherwise.

Ginsberg echoes his client’s feelings and told me via telephone today that he’s “disappointed” the DA elected not to proceed. “Especially,” he added, “in light of the driver’s previous record.”

“It’s one thing if a judge and jury find him not guilty [of Reckless Driving], but the DA’s office isn’t even willing to try and find out. We’d rather their office try and fail than not try at all. We think it’s important to send a message that these behaviors are not O.K.”

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Comments
  • Donald September 4, 2008 at 3:51 pm

    Nice follow up story, Jonathan.

    Justice does not seem to have been served in this case.

    How can someone who so badly injures someone while driving uninsured, driving without a license and driving under a suspended license not constitute a gross deviation from the standard of care that a reasonable person would observe in the situation?

    Gross deviation indeed.

    Argh…

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  • Anonymous September 4, 2008 at 3:57 pm

    And just because his injuries did not seem to create a substantial risk of death, it doesn\’t mean that the accident couldn\’t have killed him.

    It should be reworded in a way that describes the act that caused the injury causing a significant risk of death.

    There are many examples of actions that should have killed somebody, but didn\’t. Like the few people that have fallen from skydiving and somehow lived, or people that have been shot in the face and lived. Just because you pointed a gun at someone\’s head and only grazed their ear doesn\’t mean that their life was in great danger.

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  • Dana September 4, 2008 at 4:03 pm

    The law needs to be reworded in a way that addresses the action creating a substantial risk of death, not the injury.

    Just because he was thrown 130 feet from his bike and didn\’t almost die doesn\’t mean that what happened is the normal outcome of that kind of accident.

    For example, people have survived falling from airplanes and gunshots to the face, all while only suffering minor injuries, but these are rare outcomes where normally the person would have been seriously injured.

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  • Jonathan Maus (Editor) September 4, 2008 at 4:04 pm

    I think one of the major things this case reveals is how important the ORS is. Advocates, bike-friendly lawyers, lobbyists, etc… should do everything possible to look closely at the ORS and see where it might be lacking in its equal protection of all road users.

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  • kg September 4, 2008 at 4:05 pm

    What does it take? \”I wanted something off the floor\”, is not a reasonable defense.

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  • E September 4, 2008 at 4:18 pm

    Does Volz have the option of a civil suit? If Waddy won\’t be punished criminally, can he be punished financially?

    Also, what are the consequences of the traffic violations? Obviously taking away his license doesn\’t cut it.

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  • a.O September 4, 2008 at 4:22 pm

    Although it is true that there may have been some risk that a jury would not have convicted, that is often the situation in cases the DA brings against criminal defendants.

    When a DA\’s office wants to send the message that a specific type of crime is a problem, they increase the aggressiveness with which they prosecute it. The fact that the Multnomah County DA will not do so here demonstrates that they do not consider this kind of crime committed by motorists against vulnerable roadway users to be a priority.

    It\’s really a shame that the political will in Portland is lacking to protect roadway users from reckless drivers. This is the actual reality of biking and walking around Portland, in contrast to the fantasy of the feel-good press conferences and metal awards our politicians and other leaders crow so much about. Shameful.

    The only way that will change is if you write your elected officials and demand that change in priority. That strategy has worked in the past with drug crimes, domestic violence crimes, and drunk driving, to name a few.

    But that strategy has also gone hand-in-hand with statutory changes that give prosecutors more to work with. We need to get busy on that front as well.

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  • a.O September 4, 2008 at 4:48 pm

    I know no one asked, but my opinion is that a conviction was likely here. Here\’s how I would prove the mental state required for conviction:

    Q: Mr Waddy, have you ever heard of a bicyclist being seriously injured by someone driving a car?

    A: Yes.

    Q: Have you ever heard of a bicyclist being killed by someone driving a car?

    A: Yes.

    Q: And death or serious injury could result in such a situation when a driver is distracted and \”accidentally\” hits a bicyclist?

    A: Yes.

    Q: And have you seen bicyclists in Gresham?

    A: Yes.

    There is no need to prove that Waddy is aware that his conduct was a gross deviation from the reasonable standard of conduct. There is also no need to prove that Waddy was aware he was deviating from the standard by taking his eyes off the road to reach to the floor of the vehicle.

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  • toddistic September 4, 2008 at 4:49 pm

    Bullshit! plain and simple…

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  • djasonpenney September 4, 2008 at 4:55 pm

    The mental state issue is also why Tim O’Donnell\’s killer was never charged with reckless driving.

    I\’m starting to lean toward legislation that has serious penalties in injury accidents when the driver is at fault regardless of mental state. Such a driver should face fines, revocation of their license, and possibly even jail time if they are at fault.

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    • are January 15, 2014 at 12:25 pm

      more important to get them off the street than to punish

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  • Peter W September 4, 2008 at 5:50 pm

    I just wrote to the Mult. Co. District Attorney to express my displeasure about this.

    DA@mcda.us

    I\’d be interested to hear what the BTA is doing about it?

    It seems crazy to think that operating a deadly vehicle at potentially deadly speeds without paying attention is a \”reasonable\” thing to do.

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  • T Williams September 4, 2008 at 5:52 pm

    a.O.,

    Some may cite you as reactionary. Regardless, I view you as a great asset to bikeportland.org. I\’m a member of a variety of forums, predominately car-related (don\’t ask). *none* have a defacto in-house attorney that provides feedback. Thank you.

    Enough of the arsekissin\’ :)

    Not sure if this is relevant, and I\’ll probably be labeled some sort of police/justice apologist, but here goes:

    When I was 19, I was arrested on a reckless driving charge. It was a two lane road (one in each direction), with a 50 mph limit. I passed a slow moving van (doing 25 mph at best) on the right side.

    There was a police officer directing traffic for an event from the center of the lane. I was 19 and did something stupid, but was chased down by State Troopers. The reckless driving charge was brought on by the officer\’s view that I was deliberately trying to run him over.

    I never even saw the officer. Eventually, in court, charges were drastically reduced and (in my opinion) justice was served.

    My point if this: despite an officer\’s testimony that I tried to deliberately run him over, I was exonerated. Right or wrong, the driver in this circumstance probably doesn\’t fit the specific circumstances to make a reckless driving charge stick.

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  • Rob September 4, 2008 at 5:57 pm

    ORS 161.015 (8) really shouldn\’t be used as the standard for defining \’serious physical injury\’, because the text of the act makes it clear that this is intended to apply to peace officers, not the general public. The definition sounds like it is too narrow to be prosecuted effectively with respect to its use within the Vulnerable Roadway Users act.

    If the VRU act used the definition of ORS 161.015 (7) (\’physical injury\’) instead, then it could be argued that \”impairment of physical condition or substantial pain\” is too broad a definition.

    So what it sounds like is really needed would be a definition of injury that is specific to the VRU, something that would encompass a middle ground, between \’physical injury\’ and \’serious physical injury\’. This would help give the act some teeth and help out the prosecutors.

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  • Oh Word? September 4, 2008 at 6:38 pm

    The man that ran over Tracey Sparling got away with it too.. All he had to do was cock his head slightly right, and down to make sure the direction he wanted to go was clear… Apparently that\’s too much responsibility for a Class-A driver. So, of course something on the floor is much more important than a bicyclist..

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  • Hillsons September 4, 2008 at 7:06 pm

    Thanks to O’Glasser for sending the message that it\’s acceptable to run down other road users.

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  • Hillsons September 4, 2008 at 7:20 pm

    Of course, it sounds like the DA is salivating in anticipation of the case where evidence points to a police officer not properly identifying himself to a cyclist. So you can\’t say the DA drops every charge.

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  • a.O September 4, 2008 at 10:00 pm

    In about five minutes of searching Oregon case law on charging practices related to the reckless driving crime, I came across the case of State v. Smith, 184 Or. App. 118 (2002). I hope this gives you some perspective on DA O\’Glasser\’s statements and charging decision regarding the instant case:

    \”Defendant appeals a judgment of conviction for, among other things, reckless driving, ORS 811.140, based on an incident in which he was skateboarding on a public street….

    The relevant facts are undisputed. Defendant struck a pedestrian as he was skateboarding down a sidewalk and into a crosswalk in downtown Portland. Both defendant and the pedestrian fell to the ground. Defendant grabbed the skateboard and ran away, followed by a police officer who had observed the incident. Defendant was arrested and charged with several offenses, including reckless driving.

    At trial, defendant moved for a judgment of acquittal on the reckless driving charge. He argued that he could not be convicted of reckless
    driving because one does not \”drive\” a skateboard…. within the meaning of ORS 811.140….[D]efendant was convicted of the charge.\” Id. at 120.

    The Oregon Court of Appeals overturned this conviction. Id. at 128. Despite the fact that skateboards are obviously not \”vehicles\” under Oregon law – something basic legal research would reveal – the DA decided not only to charge the crime, but to take it to trial. And the DA won at trial.

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  • Opus the Poet September 5, 2008 at 12:25 am

    What needs to be done is pull out the NHTSA stats for peds\’ and cyclists\’ fatality rates when struck by a motor vehicle at various speeds, the curve takes a hard climb up starting at 25 MPH and is Fvcking close to 100% by 45 MPH. It never actually reaches 100% because there are always the few lucky ones (like me) that will survive getting hit at 65 MPH, where the fatality rate exceeds 99.9%. And I couldn\’t even get an investigation on my assault… %$#% TX LEO…

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  • Steven J September 5, 2008 at 1:05 am

    Decision speaks volumes about the DA,

    not the case of reckless driving.

    Opus is Right…DA is lazy.

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  • Aaron September 5, 2008 at 1:09 am

    How incredibly ironic that Rev Phil was heavily prosecuted for bike light failure, but throwing someone into the air is not considered worth the DA\’s time.

    In my opinion
    \”a [reckless] person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists.\”

    This quote describes nearly every single person who chooses to operate a motor vehicle on city streets.

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  • Drewid September 5, 2008 at 6:47 am

    Drivers licenses are supposed to be granted to people who have demonstrated that they can safely operate a motor vehicle. That means they can see and pay attention to the public space they are driving thru. This is necessary because otherwise, a car becomes more effective than a machine gun; one does not have to aim it, one simply fails to pay attention to driving it.
    The DAs message is that it is okay to let your car become a weapon, and the human price is worth whatever multitasking you have to do, and there is no need to take driving seriously.

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  • BikingViking September 5, 2008 at 7:22 am

    I don\’t see how a broken collarbone does not qualify as \”protracted injury.\” That\’s the kind of injury that can linger for months if not years. How badly do I need to get hurt for my injury to be considered \”protracted?\”

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  • PoPo September 5, 2008 at 8:34 am

    Excellent article. Thanks for the information.

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  • how hurt? September 5, 2008 at 8:58 am

    So I guess the moral of the story is not to wear protective equipment if you want to have your case prosecuted… Perhaps if this cyclist had not worn a helmet and sustained a head injury that would have been enough.

    It is certainly true that if you do not say you think you are hurt when you call 911 after a collision the police will not come at all. Everyone should remember that there is a good chance you are in shock after a bike crash and it is important to say that you think you are injured if the wreck was bad enough that you need the police. You can always decide it is just a minor sprain later.

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  • jrep September 5, 2008 at 9:47 am

    The DA\’s decision appears to reinforce the notion that drivers are not responsible for any thing that happens when they occupy an automobile. The DA should have prosecuted if only to raise the awareness of drivers that they actually do have some responsibility when they are behind the wheel. The prosecution, even if it ultimately failed, would have helped raise awareness for the next time.

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  • brian September 5, 2008 at 10:31 am

    PATHETIC!

    To any reasonable person, reaching to the floor to grab something while operating a moving vehicle, constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

    You are moving. Not watching where you are going. This is not reasonable. Does the \’standard\’ really accept moving forward without constant attention to what is ahead?!?

    The justice system is pathetic.

    wtf

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  • K'Tesh September 5, 2008 at 11:26 am

    Mere words cannot express my dissapointment with the DA in this case… Just because the victim can heal, doesn\’t mean that you should get off…

    SHAME! SHAME!! SHAME!!!

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  • brettoo September 5, 2008 at 11:51 am

    I too would like to know whether a civil suit is planned and whether the BTA is planning to lobby for legislation that would protect vulnerable users from reckless conduct like that displayed here. Jonathan, can you or others follow up?

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    • are January 15, 2014 at 12:29 pm

      ginsberg mentions prior record, and the earlier story says the guy was uninsured and driving suspended. likelihood of financial recovery slim.

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  • Tbird September 5, 2008 at 12:14 pm

    \”The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

    He hit another person with his car, knocking him 140 ft through the air, injuring this person and somehow there was no gross deviation from the standard of care that a reasonable person blah, blah, blah….

    SO what is this elusive standard of care…?I\’m sure it\’s subjective, but WTF

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  • peejay September 5, 2008 at 2:14 pm

    PoPo:

    All due respect (because I know if the PPB were made up of more people like you, we\’d be better off), but, I gotta ask: what are you bringing to the table in this discussion? After your comments regarding the Rev Phil incident where you cautioned us against jumping to conclusions, and failed to condemn your fellow officers for their brutal, irrational behavior, what do you intend to say on this topic? I understand that, typically, the police and the DA\’s office work closely together during the charging phase of a criminal case, and that the arresting officer has a certain degree of influence as to what the charges wind up to be. Do you propose to actively advocate for a more serious approach to the prosecution of these types of cases? Or are you just here to lend a veneer of respectability to your Bureau? I color myself skeptical, but open to persuasion.

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  • PoPo September 6, 2008 at 1:47 am

    peejay:

    I\’m not sure what I can add here, and don\’t know what you mean by \”a more serious approach.\” This is the District Attorney\’s decision. The officer clearly charged more than what the deputy district attorney thought he could ultimately prove in court. (The officer only needs \”probable cause\” to make an arrest and charge for a crime. The District Attorney needs to prove the charge \”beyond a reasonable doubt\” to convict, which is a much higher standard of proof.) The officer is not in a position to force the DA to prosecute a charge that the DA doesn\’t think is viable in the courtroom. Jonathan did an excellent job at describing the laws in question and provided comments from the district attorney about his decision. It was an insightful look into the realities of criminal prosecution.

    Though I do my best to investigate crimes, I don\’t prosecute them on a daily basis and don\’t have nearly as good a perspective on what is or isn\’t possible in a courtroom as does a district attorney. (Perhaps there is another deputy district attorney on this blog who might share some thoughs?) Am I frustrated sometimes when the DA decides not to prosecute crimes I charge? Yes. However I have yet to meet a deputy district attorney who didn\’t seem horribly overworked and stretched in countless different directions and yet did their best to do their job earnestly and professionally. There are countless other more lucrative and less stressful jobs they could done with their law degrees. I respect the vast majority of them and their decisions, and don\’t see anything unusual about this one.

    If the public would like cases with fact situations similar to this Stark Street collision to result in more serious consequences, we should lobby the state legislature to change the laws.

    Another option might be for us all to pony up the tax money to double or triple or quadruple the district attorney staff so that they might be able to take the time to attempt to prosecute cases they feel are losers from the get go without detriment to the prosecution of other, more serious crimes.

    So yes, again, I caution us not to jump to conclusions.

    And if you choose to take my comments as veneer, that is your decision. I realized long ago that there are some people who will never like or believe my comments simply because I\’m an officer, but I also try to remember that most folks are generally open-minded, and seem to appreciate a larger variety of opinions, perspective and experiences on which to base their own understanding. I\’m thinking that you are one of these latter folks, as you mentioned that you were open to persuasion. I appreciate that.

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  • steve September 6, 2008 at 10:34 am

    Lot of words to say nuthin\’ popo.

    Lobbying for more money for the prosecutors office, eh? So they can continue to charge people like Rev Phil, but not your fellow employees who murdered James Chasse?

    More money so they can ignore cases like the one above, but still find the time to prosecute low level drug users. I say less money for them and the PPB.

    Ya\’ll should lose the spiffy new cars and guns. Start walking your beats with little nerf clubs. No more Tasers, no more rubber bullets, no more pepper spray in the face. Maybe then we will give a crap about what you and your ***deleted by moderator*** pals have to say.

    Your profession is a sad blight on our community. How a person of conscience can associate themselves with it is beyond me.

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  • wsbob September 6, 2008 at 10:55 am

    PoPo, thanks…I don\’t know about anyone else, but I feel like that explanation helped me understand the situation a little better.

    I\’ve been reading and thinking about all the comments, plus editor Maus\’s original article, as I\’ve tried to decide whether I felt the D.A. was right to not proceed with the reckless driving charge.

    Here again, from Maus\’s article, is the reference to the ORS about reckless driving:Ben O’Glasser

    \”O’Glasser then referred me to ORS 161.085 (9), which explains the definition of the mental state required for a Reckless charge. Here’s the salient excerpt from that statute:

    “…a [reckless] person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”\”.

    I\’m not a lawyer, but as a fairly ordinary citizen reading that excerpt, I think about what would need to be proven in regards to the driver of the car to meet that description; was he driving like a wildman, aware and consciously speeding or weaving back and forth across the road? No one has said that.; was he under the influence of some substance?; I don\’t remember that reported to be the case.

    What I imagine the driver is suggesting, is that in reaching down for something on the floorboards(not sure that\’s exactly right, but close), he momentarily lost control of the vehicle in what turned out to be a critical moment. I bet lot of people might be irritated to have to admit it, but they\’d probably also readily concede that momentarily losing control of a vehicle is something that happens occasionally, often doesn\’t result in dire consequences, and isn\’t necessarily reckless driving.

    They\’d call that sort of thing an \’accident\’. Even for the driver in this incident, they\’d probably call what happened here, an accident, even though the guy seems like a flake, who might casually be regarded as an accident waiting to happen.

    With that line of thinking associated with this kind of collision, the D.A. isn\’t going to be able to make the charge of reckless driving stick. On the other hand, if the Oregon regulatory statutes were revised to place more emphasis on the seriousness of an operator losing control of their vehicle for any reason, with evaluation of contributing circumstances factored in to judgment and penalty, the D.A. might have a shot.

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  • a.O September 8, 2008 at 10:47 am

    But the DA\’s explanation doesn\’t make sense in context.

    If the DA really feels as though he could not get a conviction because a greater degree of \”bad\” behavior is required, then how come the DA was willing to prosecute and able to get a conviction for a guy on a skateboard who ran into someone (see #17)?

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  • PoPo September 8, 2008 at 6:19 pm

    steve,

    I\’m sorry that you have such animosity toward the police. Indeed, as I mentioned in the last paragraph of my above comment, you are not the only one.

    Please know however, in spite of your strong feelings, that if you ever need help from the police, officers are always ready to serve, any time of the day, every day of the year, even if it might be dangerous, even though they\’ve probably never met you before.

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  • wsbob September 8, 2008 at 11:19 pm

    Referring to my comment #33

    (1)\”But the DA\’s explanation doesn\’t make sense in context.

    If the DA really feels as though he could not get a conviction because a greater degree of \”bad\” behavior is required, then how come the DA was willing to prosecute and able to get a conviction for a guy on a skateboard who ran into someone (see #17)?\” a.O.

    From comment #17:

    (2)\”The Oregon Court of Appeals overturned this conviction. Id. at 128. Despite the fact that skateboards are obviously not \”vehicles\” under Oregon law – something basic legal research would reveal – the DA decided not only to charge the crime, but to take it to trial. And the DA won at trial.\” a.O. #17

    Explain to us if you will…was or was not the D.A.\’s conviction of the skateboarding defendant ultimately overturned by the Oregon Court of Appeals? If that\’s true, it still might be possible to see the D.A.\’s effort as a win, but not as definitely as if the conviction had stuck. I thought this kind of outcome might be what PoPo was in part, indirectly referring to in his comment #31.

    Responding to a.O.\’s question that I\’ve numbered (1) above: I not sure why the D.A. was willing to prosecute the skateboarder. Speaking as someone who\’s not a lawyer, I imagine he might have been willing to do so because he was hopeful that the conviction might somehow stand despite the statute\’s wording. Or possibly because, as a.O. himself says in comment #7:

    \”When a DA\’s office wants to send the message that a specific type of crime is a problem, they increase the aggressiveness with which they prosecute it.\” a.O.

    Sending a message. That\’s good, if in doing so, the public can ultimately get the results they need for the money spent.

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  • BURR September 8, 2008 at 11:26 pm

    Waddy faces six traffic violations including; driving while uninsured, driving without a license, driving under a suspended license (for not showing up to court for a previous citation), Careless Driving with an accident, and failure to drive within a lane.

    It would seem to me that the aggregate of these violations would equal reckless driving.

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  • a.O September 9, 2008 at 8:48 am

    Bob, the point is that they were willing to charge and to prosecute and they were able to get a conviction. The reason it was overturned is irrelevant to the DA\’s reasoning here. I don\’t see how you\’ve contributed anything to the discussion. Instead, all I see is the usual re-statement of things that have already been said and a non-sequitor for a conclusion.

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  • wsbob September 9, 2008 at 9:58 am

    \”The reason it was overturned…\” a.O

    I\’m sorry you don\’t understand.

    The conviction was overturned. The D.A. ultimately lost the case. Maybe lawyers don\’t see this kind of outcome that way, but I\’ll bet many people do. His reasoning was not sound in regards to whether this conviction would stand scrutiny by the Oregon Court of Appeals. As a result, there ultimately was no penalty to the offender. Where does compensation to the victim stand in such a situation?

    When this kind of outcome occurs, close attention has to be paid to whether the public is receiving the desired and needed outcome from the efforts of law enforcement and the courts to make society safer. The public can not afford to have the D.A. freely pursuing cases it can not win.

    The law has to be written so as to support the D.A.\’s efforts to help bring to society the safety it needs and expects. As I understand it, regarding the Stark Street collision where Lance Waddy drove his car into and injured the bike rider, Steven Volz, the law wasn\’t adequately written to support the D.A.\’s efforts: That\’s why he dropped the case.

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  • a.O September 9, 2008 at 10:14 am

    No, it\’s you who doesn\’t understand. The reason that case was overturned is irrelevant to the DA\’s reasoning in this case. it\’s that simple.

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  • steve September 9, 2008 at 11:11 am

    popo

    I can not think of any instance in which I would feel the need to call the police. Our country would be a far better place without your pack of thugs. The increasing paramilitary nature of your organization is disturbing and frightening. Indeed, there is no situation that a cop can not make worse.

    Just go ask James Chasse all about it.

    I again say, it is beyond me how a person of conscience can associate themselves with such a disgusting group. Especially while not shouting from the tops of their lungs about the injustices all around them.

    Shame on you.

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  • wsbob September 9, 2008 at 12:17 pm

    It\’s not irrelevant, and the value of your opinion is diminished by your inability to see that, but go ahead and argue to the contrary if you choose. In both cases, this one and the skateboarder case, a standing conviction was not possible because the law as written would not support it.

    But since you\’re so confident that the D.A.\’s reasoning in the skateboarder case was irrelevant to the reasoning in this case, please go ahead and give us the benefit of your lawyers mind by carefully explaining to all of us reading here, exactly what you mean by that. Or, maybe someone else feels that they could do this.

    I wonder what happened to Cecil. A lawyer with her temperament and respect for others has been sorely missing of late from this weblog.

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  • a.O September 9, 2008 at 12:19 pm

    And your personal insults diminish you, Bob.

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  • a.O September 9, 2008 at 12:37 pm

    And here it is, since you apparently missed it the first time:

    In the Smith case, the DA was either unaware that a skateboard was not a vehicle within the meaning of the Oregon Vehicle Code or s/he believed that it was sufficiently clear that a court would find that it is. It seems obvious to me that it was the former, but this is irrelevant because it did not affect the DA\’s decision to either charge the crime or try the case. In other words, he \”vehicle\” issue is independent of the \”mental state\” issue. If the DA had known that a skateboard was not a \”vehicle,\” or had even believed it was a close call, the DA would not have brought the charge or tried the case. That\’s the way DA charging practices work – they only try cases they are pretty sure they can win. That\’s partly because the standard of proof is so high.

    In the Smith case the DA believed he could prove the \”reckless\” mental state beyond a reasonble doubt to a jury based on the defenant having had a momentary lapse in attention and colliding with another road user. We know s/he believed that, because s/he charged the crime and tried the case. And we know it\’s possible to win that case because the DA won in Smith.

    We also know that the defendant\’s actions could not have been characterized as \”intentional\” (another legal term of art for a mental state), because intent and recklessness are distinct mental states and there are crimes specifically for actions with intent (e.g., assault).

    Now, the DA claims that he cannot prove the \”reckless\” mental state with the same facts as relevant to the mental state: a momentary lapse in attention that caused a collision with another roadway user.

    The only conclusions we are left with is either that (1) the DA changed its mind with regard to its ability to prove the \”reckless\” mental state based on a putative defendant\’s momentary lapse in attention causing a collision with another roadway user; or (2) there is another explanation here that we are not privvy to.

    The reason the former is very unlikely is that the \”reckless\” mental state was successfully proven in Smith, proving that a jury will, in fact, find a defendant guilty of reckless driving based on a momentary lapse of attention that causes injury to another roadway user. Therefore, I conclude that the DA\’s explanation does not make sense based on the published Oregon case law.

    O\’Glasser should at least be asked to explain this obvious contradiction.

    And you, Bob, are cordially invited to free your mind from worry over my temperament and focus on substantive issues in your comments here on bikeportland.

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  • wsbob September 9, 2008 at 2:03 pm

    a.O., is that your summary of the case, or is it actually from State v. Smith, 184 Or. App. 118 (2002)? I did a search but didn\’t have any luck so far finding the text you\’ve posted above in comment #44. Provide a link to it if it\’s not too much trouble.

    Explain this more clearly if you can…: \”Now, the DA claims that he cannot prove the \”reckless\” mental state with the same facts as relevant to the mental state: a momentary lapse in attention that caused a collision with another roadway user.\” from comment #44

    …relative to what precedes it. If it\’s obvious, sorry, I\’m not getting it. Just answer the question please.

    Let us know when you get a call back from O\’Glasser explaining how his reasoning in deciding not to pursue a case against Lance Waddy contrasts with that of the DA in the skateboarder case.

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  • a.O September 9, 2008 at 2:42 pm

    Bob, I do not quote the case in #44. I believe I clearly indicate by quotation marks and text signals where I quote the text of the case in #17.

    Caselaw is not generally available on the web, but only through legal research services or in hard-copy volumes. If you don\’t want to sign up for a subscription or have access to the reporter, send me your email address and I will send you a copy of the case.

    Explain this more clearly if you can…: \”Now, the DA claims that he cannot prove the \”reckless\” mental state with the same facts as relevant to the mental state: a momentary lapse in attention that caused a collision with another roadway user.\” from comment #44.

    From the story above:

    “We couldn’t support the mental state required for a criminal prosecution.”
    – Gresham DA Ben O’Glasser on his decision to not seek a Reckless Driving charge against Lance Waddy.

    Does that answer your question? Or are you asking about my characterization of the facts of both cases as \”a momentary lapse in attention\”? If so, that\’s an extrapolation based on the analysis I did of why no \”intent\” crime was charged in Smith and on the facts of the present case.

    Let us know when you get a call back from O\’Glasser explaining how his reasoning in deciding not to pursue a case against Lance Waddy contrasts with that of the DA in the skateboarder case.

    Yes Jonathan, I too would be interested in seeing a follow-up on this.

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  • Kphomma September 9, 2008 at 3:44 pm

    Just to say he used to teach at Ron Russell Middle School. One of the most liked teachers maybe in the David Douglas District, also a dear friend to the other cyclist Teachers and Students at RRMS.

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  • wsbob September 9, 2008 at 4:02 pm

    a.O., thanks for clarifying which text comes from the case file and which comes from your own summary.

    I understand now your thought that if the DA could get a conviction on the basis on reckless driving in the skateboard case, (though it was later dismissed because the skateboard didn\’t meet the criteria for being a vehicle), then it would stand to reason that a conviction that would stand, could be had in a case against Lance Waddy, since there\’s no question he was driving a vehicle.

    Hey!, maybe I\’m the rare one around here that didn\’t get this earlier.

    I thought by reading the case file, I might be able to get some insight into how the DA was able to persuade the jury that the defendant in State v. Smith, given the wording of the relevant Ore reg statutes, was guilty of reckless driving (That seems to be what O\’Glasser is facing here; how did the other DA do it, and why does O\’Glasser seem to think he can\’t.). Fact is though, I\’ve never really read case law to speak of. Not sure I\’m up for that kind of challenge right at the moment. I might take you up on your offer a bit later.

    I definitely think that, somehow, guys like Lance Waddy have got to be called to the carpet when they do the kinds of things he did. I figured you\’d probably already wrote/called O\’Glasser and were waiting/hoping for a response.

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  • a.O September 9, 2008 at 4:35 pm

    Hey!, maybe I\’m the rare one around here that didn\’t get this earlier.

    Dunno, but upon reviewing my posts I found that they could have been clearer/more explicit. When you get deep into these legal concepts sometimes it\’s difficult to remember that others are coming at it for the first time or from a different perspective.

    I thought by reading the case file, I might be able to get some insight into how the DA was able to persuade the jury that the defendant in State v. Smith, given the wording of the relevant Ore reg statutes, was guilty of reckless driving.

    Well, to be clear, it\’s \”the case,\” the Court of Appeals published decision, that\’s published, not the \”case file.\” That\’s a file kept by the DA and the defendant\’s attorney that has far more information in it. From the case file, you probably could figure that out, but it would be virtually impossible to get that information, as it\’s legally protected. Unfortunately, the case says nothing pertinent to your point. Believe me, I would have pasted it in my comment if it did. But that\’s typical of apeallate decisions.

    Again, the point is that the two cases are indistinguishable on the mental state aspect, but I did not way back in #7 that there is still some risk of not getting a conviction here – same as in the Smith case.

    So we do need legal reform. But we will always still need DAs who are willing to do what we agree is needed and be the people who hold guys like Waddy to account for their behavior.

    I know next to nothing about domestic violence law, but I believe there is some kind of statute or policy that requires officers to make an arrest and possibly DAs to bring a charge when they find evidence that domestic violence has occurred. And that rule came about specifically because DAs would rarely prosecute those cases because they were so nasty and they wanted to avoid the hastle. Maybe we need a similar rule/policy here.

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  • wsbob September 9, 2008 at 10:26 pm

    I know that the more I\’ve thought about this collision on Stark St, the more I\’ve realized how complicated establishing recklessness on the part of Lance Waddy could be for O\’Glasser. There would have to be sufficient information and facts for him to do exactly that to win the case, just like the DA did in State v. Smith. That most likely involves access to way more material than ordinary people like myself have.

    I\’d like to know how the skateboarder was found to be reckless. One indication of that may be clear; if he was riding the skateboard in the downtown core area(your #17 comment said simply \’downtown\’…outside the core is legal), that\’s illegal. I imagine there were other solid indications he was reckless in order for the jury to be persuaded.

    In light of that, one of the things that seems to make the Lance Waddy collision, at least initially more complicated, is that until he veered into the bike lane, he was driving exactly where he was supposed to be…in the main travel lane. Of course, he did veer into the bike lane at some point. For how long, how far? As I suggested in an earlier post, if it was momentary, I think lots of people might consider something like that to possibly have been accidental rather than reckless. That\’s where making the case could get tough.

    I\’d love to hear O\’Glasser discuss further why he doesn\’t feel he can win the case. At this point, knowing what I do, I\’m not prepared to reject his judgment on it.

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  • jrep September 10, 2008 at 9:46 am

    I am disgusted by the tollerance our society accepts for the mayhem inflicted by motorists. Just to cite a couple examples, we accept a high degree of imparement due to alcohol and don\’t allow random sobriety stops. We also have a high tollerance for \”inattention\” by the motorist.

    I\’d like to see us \”raise the bar\” with more enforcement and prosecutions for the inattention such as that exhibited by Waddy.

    From a lay perspective, it seems clear to me that what he did was \”reckless.\” It seems to me that O\’Glasser is trying to judge whether this situation meets the legal definition.

    I understand that the DA wants to \”win,\” but it seems to me that charging Waddy with reckless driving would advance the cause of safety for road users. First, it sends a message that \”you, the motorist, are obligated to pay attention, if you don\’t it\’s reckless.\” We might even get the media to cover that story. Second, if the prosecution suceeds in court, it reinforces that message. On the other hand, if the prosecution fails, we can use an actual case to lobby the legislature to change the law so the legal definition more closely matches the common understanding. Having a law that is so narrowly written that it is applicable in so few cases is almost worthless.

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  • a.O September 10, 2008 at 10:22 am

    \”At this point, knowing what I do, I\’m not prepared to reject his judgment on it.\”

    You\’re right that with more facts we could make a more informed legal judgment about the charging decision, but I reach the opposite conclusion in light of Smith: At this point, knowing what I do, I\’m not prepared to accept O\’Glasser\’s judgment.

    And I think that\’s the attitude we need to have to all important decisions of government: Healthy skepticism that requires accountability. Our employees need to adequately justify their decisions to us.

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  • wsbob September 10, 2008 at 9:01 pm

    Well, a lot of people probably know way more than I do about the Lance Waddy case. For instance, I haven\’t read so much as the police report on the incident, if that\’s even available yet for the public to read. I\’ll bet Deputy DA Ben O’Glasser has read it.

    Those who know more than the public about these kinds of cases that look very incriminating, but that aren\’t being pursued by law enforcement officials for stated reasons that appear to possibly be less than thorough…by all means, I\’d hope such people would try and get a more thorough answer from said law enforcement officials.

    Many of us in the public are kind of stuck; we generally have to trust the officials, and hope they\’re being straight up with us. What happens if we really think they aren\’t being so? Well, I guess then we have to try ourselves, to get the officials to explain their reasoning in greater detail. That can be a very hard thing to do, because, at least it seems to me, there\’s nothing more that some officials like better to do, than to give a nice, polite, simple answer that doesn\’t invite too many doors to further questions, and then stonewall when further questions come along despite their efforts.

    Deputy DA Ben O’Glasser has so far given his polite answer to editor Maus of this weblog, about pursing the Waddy case. Will he provide a more detailed answer about his decision not to pursue, if requested? I don\’t know Seems like a good question to me. Very much doubt he\’d respond to any such request presented by myself.

    And if he doesn\’t, what then? My familiarity with these kinds of things is marginal at best. Probably would have to conduct your own independent investigation of the incident to get into the mind of Lance Waddy and his victim, Steve Volz, thereby possibly discovering whether the DA\’s assumption that he couldn\’t get sufficient evidence to support the required mental state, was solid. This has certainly been successfully done before, with the results used to go on and win cases that have been dropped just like this one has been.

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  • wsbob September 10, 2008 at 9:34 pm

    jrep, what did Lance Waddy do that was \’reckless\’? We know he veered into the bike lane and hit Steven Volz, a guy riding a bike in the bike lane, but in doing so, was Waddy reckless, or…careless? How would you find out which of the two mental states applied to him in this collision? because for sure, Waddy probably has said something like:

    \’Hey…I\’m sorry, I feel terrible about running into Mr.Volz, but I didn\’t mean to. I had my eyes on the road the whole time except for a brief moment while I reached down to the floor boards for something. After all this, I can\’t even remember what it was that was so important that I had to reach for it. It just happened so fast. I know my driving record is bad, but I just had to get to work. My life was just moving towards turning around for the better after working so hard for that, and then this happens. I\’m so sorry.\’

    Remembering reported stories about this incident, Waddy wasn\’t DUI, and wasn\’t thought to have been speeding, at least not excessively.

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  • a j September 11, 2008 at 11:22 am

    aO,

    I understand you disagree with O\’Glasser re: his decision to decline prosecution because you think he should have tried to get a conviction as the DDA did in the skateboarding case. The DDA is, as all attorneys in Oregon are, bound by Oregon Rule of Professional Conduct 3.1 which states, in relevant part, that \”[i]n representing a client… a lawyer shall not knowingly bring… a proceeding,
    assert a position therein…, or take other action on behalf of a client, unless there is a basis in law and fact…\”

    It seems to me, if the DDA reads the law, determines there\’s no basis in law or fact to proceed, then doing so to appease the public, send a message, or otherwise \”frivolous\” reasoning would be a violation not only of his duty as an attorney, but also a violation of his obligation as a minister of justice.

    With great power, comes great responsibility. Mr. O\’Glasser is a cyclist, and wanted to be able to bring charges just as all of us would like to have seen, and as much as I would\’ve like to seen something more done, I think he made the right call. I think it takes courage to do what he did, because I don\’t think, if I were in his shoes, that I would\’ve been able to separate my feelings as a cyclist from my (hypothetical) duties as an attorney or prosecutor.

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  • a.O September 11, 2008 at 2:02 pm

    So, aj, does that mean that you think the DA\’s office violated ORPC 3.1 in the Smith case?

    And I think you are confusing the \”no basis in law or fact\” standard with a cost-benefit assessment based on the expenditure of public money vs. the likelihood of winning. Those are two very different things. The fact that you are even citing ORPC 3.1 in this context demonstrates that you, with all due respect, have little understanding of what the rule requires or why it exists.

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  • a.O September 11, 2008 at 3:23 pm

    \”O\’Glasser is a cyclist…\”

    I\’m getting really tired of the argument that, simply because someone rides a bike, knows someone who rides a bike, or claims no bias against bikes, that their judgment with regard to bike rights is automatically sound and beyond question. Whether O\’Glasser has ever been on a bike is totally irrelevant to the issue here.

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  • jack September 11, 2008 at 4:24 pm

    I believe that the point regarding O\’Glasser\’s cycling habits was to undercut any argument that he is a rabid bike hater with secret motivations to supress legal action in these types of cases. I also think that his being a cyclist (no real proof of that internet blog statement) would create a personal understanding of what it means to be a vulnerable roadway user, so that this information in this venue is very pertinant. That being said I would agree that \’simply because someone rides a bike, knows someone who rides a bike, or claims no bias against bikes, that their judgment with regard to bike rights is automatically sound and beyond question\’. If you need proof of that one take a look at any of the threads from this website that have more than 25 comments.

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  • a.O September 11, 2008 at 7:16 pm

    Vulnerable roadway users aren\’t just bicyclists. Anyone who walks or otherwise moves around on sidewalks and crosswalks, which as far as I can tell is pretty much everyone, has a personal understanding of what it means to be a vulnerable roadway user.

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  • wsbob September 11, 2008 at 10:12 pm

    \”You\’re right that with more facts we could make a more informed legal judgment about the charging decision, but I reach the opposite conclusion in light of Smith: At this point, knowing what I do, I\’m not prepared to accept O\’Glasser\’s judgment.\” a.O, #52

    A few questions:

    Anything more that you know about this than the rest of us that you can share with everyone here? Have you talked with Steven Volz\’s lawyer Mark Ginsberg? Any possibility of Ginsberg giving the public any further insight on his ideas about why O\’Glasser felt he could not pursue this case? For us uninformed out here, can Ginsberg pursue a criminal proceeding against Waddy since O\’Glasser chooses not to? That is of course, if Ginsberg and others have information that leads them to feel they could get a conviction.

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  • a.O September 12, 2008 at 7:57 am

    There is nothing more I can share about the case. But I can tell you that criminal proceedings cannot be brought by anyone other than the DA or the DOJ.

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  • wsbob September 12, 2008 at 11:28 am

    You see? Now I\’m not going to give a.O. a hard time about this, because it sounds like he may have given us a straight answer; maybe in his comment above, he\’s saying there\’s simply nothing more he knows about the situation than all the rest of us do…or, that he knows something, but he can\’t tell us for some good reason.

    Why is it though…that in a situation like this, where the outcome of considering whether to proceed with criminal charges against a driver like Lance Waddy, is what we have here…does the public have such a hard time getting a complete answer about why these kinds of charges couldn\’t be brought?

    I appreciate Deputy D.A. Ben O’Glasser\’s willingness to answer bikeportland editor Jonathan Maus\’s questions about the situation, but he basically answered the question of why he felt he could not proceed with the charges, with two basic statements, one of which I repost here:

    “The main thing is that we couldn’t support the mental state required for a criminal prosecution.” Deputy D.A. Ben O’Glasser

    The really seems very brief to me, and I\’m not sure what that brevity means. Does it mean that a more detailed answer is not possible because efforts, beyond the responding police officers report, to get greater insight into Lance Waddy\’s mental state were not made?

    Could someone pleas tell us in fact, what efforts were made to determine Waddy\’s mental state at the time of the collision? What might his mental state in the days or hours before the collision have been? Knowing that could help to suggest a possible mental state related to that of the day of the collision.

    Was a more detailed answer not forthcoming because it might compromise the effort to penalize Waddy by way of the traffic citations he was issued?

    If the public is to expect some improvement in the standard of responsible behavior of people sharing the road with each other by way of whatever mode of transportation they find themselves compelled to rely upon to get about…officials and professionals that have information relevant to that aspiration, people we\’re obliged to trust and rely upon to give us good advice and guidance…these people must talk to us and give us answers. When they shut-up, that does not help things.

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  • Emily October 11, 2008 at 5:17 pm

    Nice follow up. I heard about this accident a while back but I thought I’d Reply and say that I’m a little Frustrated Along With Volz about The verdict. Steve was badly injured and it seems now that justice will not be served. I’d like to say I know Volz Personally but haven’t had a cahnce to talk to Him. I assume he’s doing better. and best wishes for a good recovery. But thank you for this story.

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  • Glenn January 14, 2014 at 7:54 pm

    “Driving without a license”? Shouldn’t that be an automatic “go to jail, go directly to jail, do not pass go, do not collect $200.”?

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