Posted by Jonathan Maus ( Publisher/Editor ) 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.”