Posted by Jonathan Maus (Publisher/Editor) on July 17th, 2012 at 4:12 pm
“This clearly should have been a VRU [vulnerable roadway user] case.”
— Ray Thomas, lawyer and bike law expert
A recent collision on Highway 101 has raised questions about the application of Oregon’s driving laws.
On July 8th, a 35-year old Providence Hospital surgeon from Hood River, Christeen Osborn, was riding her bike northbound on Highway 101 a few miles south of Cannon Beach when she was hit from behind by a mini-van being driven by 78-year Wanda Cortese from Kennewick, Washington. Based on an investigation and witnesses interviewed by the Oregon State Police, Cortese was found at fault for the collision and was given a citation for “Failure to drive within a lane,” a relatively minor traffic violation that comes with a $260 fine.
The collision made me wonder whether or not Oregon’s landmark “Vulnerable roadway user” (VRU) law should have been triggered. That law created an enhanced penalty for any vehicle operator convicted of careless driving whose actions, “contribute to serious physical injury or death to a ‘vulnerable user of a public way'”.
“I have not seen anything or been told by our on-scene supervisor that the driver “passed unsafely” related to this incident.”
— Lt. Gregg Hastings, Oregon State Police
In order for the VRU law to be triggered, the police would have to find that Cortese operated her vehicle in a careless manner. In Oregon statute, someone is guilty of “careless” behavior if they operate their vehicle, “in a manner that endangers or would be likely to endanger any person or property.”
Osborn was critically injured in the collision and she remains hospitalized with very serious injuries nine days later. Based on the OSP’s citation and on accounts of what happened, Cortese clearly did not maintain her lane and allowed her vehicle to veer into the shoulder prior to the collision. One witness who allegedly saw whole thing, Christina Carrillo-Cowan, said, “The van had absolutely no reason for swerving.”
So, given all the above information, why wasn’t Cortese cited for careless driving (which would have automatically triggered the VRU provision and enhanced penalties that go along with it)? I asked OSP Lieutenant and Public Information Officer Gregg Hastings that same question.
Here’s how he responded (via email):
“The Careless Driving statute is not a catch-all for any situation involving a bicycle-involved traffic crash. The trooper’s decision to cite is based upon whether there is enough evidence to prove that the driver was operating the vehicle in a manner that endangers or would be likely to endanger any person or property. The fact that someone was injured is not necessarily enough to prove the vehicle was being operated carelessly or recklessly. Unless there is a change in the trooper’s decision based upon available information and evidence related to the crash investigation, the original cited charge will remain in effect and move forward in court.”
To that I replied:
“I realize it comes down to the evidence and the trooper’s discretion to some degree. I think there are people who see the fact that the van left its lane and passed unsafely as reason enough to meet the “endanger” and “careless” standard.”
And Lt. Hastings responded (in part):
“I have not seen anything or been told by our on-scene supervisor that the driver “passed unsafely” related to this incident. In this case, the only fact that the driver drifted onto the shoulder may not of itself be careless without some other factor such as fatigue, distraction, talking on cell phone or texting, etc…”
So it appears from Lt. Hasting’s reading of the careless driving statute (ORS 811.135) that there are additional factors that must be involved for someone to be held liable for careless driving. However, there’s nothing in the text of the statute that mentions fatigue, distracted driving, and so on.
Something’s amiss here. In the OSP’s interpretation, driving a motor vehicle on a highway at a relatively high rate of speed (assuming Cortese was going 40 mph or so) and allowing that vehicle to leave its designated lane and collide with another road user, causing serious injuries, is not technically “careless”.
Noted bike lawyer Ray Thomas, who helped pass the VRU law with the Bicycle Transportation Alliance back in 2007, feels that the OSP got it wrong this time. “This clearly should have been a VRU case,” he told me via email last week. As we know all too well, traffic laws are only effective if police officers know they exist and choose to use them. Or, as Thomas put it, “I wish the law enforcement community was more familiar with the VRU law.”
In this case, Lt. Hastings says the OSP is simply trying to “make the right decision and not rush to judgment.” Hastings added that, “If we make the wrong enforcement decision then we may not be able to charge someone with a more serious offense later, or it could be overturned in court during trial.” However, Cortese has already received a traffic ticket. If she goes to court (likely in the next month or so), pleads guilty and pays a fine, she will have effectively prevented the OSP from going after more serious offenses later due to double jeopardy laws.
The issue here seems to be one of perspective.
To traffic safety advocates and people that spend most of their time as vulnerable roadway users, any carelessness or even minor transgression while operating a car or truck can mean the difference between life and death and they naturally want to see more consequences when tragedy strikes. People who don’t spend much time as a vulnerable roadway user, and who are more likely to sympathize with an auto-centric outlook on these situations, will tend toward a higher tolerance for unsafe behavior behind the wheel. Or, to put it another way, they will be less likely to consider potentially life-threatening behaviors as anything other than minor infractions.