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At Wonk Night, County DA announces effort to change state law

Posted by on October 27th, 2015 at 12:09 pm

underhillgroup
Multnomah County DA Rod Underhill (with Deputy DA
Chuck Sparks on his left) addressing last
night’s Wonk Night crowd.
(Photos © J. Maus/BikePortland)

We had two firsts at Wonk Night last night: An activist group used the event as a platform for their cause, showing up en masse with protest signs and demands; and an elected official announced a new legislative proposal that could someday change Oregon law.

It all started quite unexpectedly. As I set up the room for the event about 17 people walked in who I’d never seen before. They were carrying signs that said things like “Justice for Chandler!”, “Speed Bumps for Chandler!”, “Slow Down” and so on. It caught me off guard and it took me a few seconds to realize that the “Chandler” in their posters was Chris Chandler, the man who was killed last month on SE Stark.

chandlergroup
Wonk Night: Where activism takes root!

Chandler’s death has sparked a grassroots effort by a group named Speed Bumps For Chandler who want the City of Portland to do more to keep people safe on streets outside after-hours music and entertainment venues. Turns out they heard several Multnomah County district attorneys would be at Wonk Night so they made the event part of an action alert on their website.

I met several people from the group, many of whom knew Chandler personally and are still experiencing the anguish from his death. Before getting the event started, I introduced the group’s unofficial leader, Alyssa Blum, and gave her the floor to describe why they came and what their group is working on.

“Our cause is the same as your cause,” she said. “We just want to to turn a senseless tragedy into a positive change.” Blum wants speed bumps on Stark and lower speed limits.

Later in the event, Blum and a few others from her group were able to connect with Families for Safe Streets founder Kristi Finney (who like Blum, was once an inexperienced activist thrust into her role by tragedy). They also shared their concerns directly with the four representatives from the Multnomah County District Attorney’s office who attended the event.

Speaking of which, the theme of this month’s Wonk Night was “The Negligence Gap.” We aimed to address the current gap in Oregon law that exists when someone is seriously injured or killed in a traffic collision. In these cases — Alistair Corkett’s case being just the most recent example — there are currently only two options: Either the DA must be able to prove that the vehicle operator deserves criminal charges which require a very high legal threshold of “recklessness” and “gross negligence”; or absent that criminal charge, the person can be issued a traffic citation.


To learn more about the issue we had the county’s most experienced district attorneys in the room with us: District Attorney Rod Underhill, Senior Deputy District Attorney Chuck Sparks, Deputy District Attorney Glen Banfield, and Deputy District Attorney/Legislative Liaison Jeff Rhoades.

“There’s such a vast gap between traffic citations and a felony. We find ourselves in collision with the law where we get handcuffed ourselves. We need more options.”
— Rod Underhill, Multnomah County DA

Underhill kicked things off by making an announcement. “I need all of your help for an idea we’re working on,” he shared. Underhill described the current situation. “There’s such a vast gap between traffic citations and a felony. We find ourselves in collision with the law where we get handcuffed ourselves. We need more options.”

About the Corkett case specifically, Underhill pointed out that if Corkett had died (he survived, but lost his right leg), the DA would have been able to pursue criminal negligence charges. But because he lived, the only option was to drop the case completely. The man who hit Corkett was given only a traffic citation. “It pissed me off. I’m angry,” Underhill said, “It just doesn’t seem right. We need to change the law.”

Not only was the driver of the motor vehicle in this case not held responsible for his actions to the extent the DA would have liked, but because he lived, Corkett cannot seek the restitution guaranteed in Article 1, Section 42 of the Oregon Constitution. That’s “inequitable” says Underhill.

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Frustrated by this legal gap, the DA’s office has crafted a proposal that Underhill himself has already taken into meetings with key state legislators. So far he’s gotten support for it from both sides of the political aisle and he’s continuing to work the proposal in Salem.

During last night’s discussion people offered feedback and critiques of the proposal and asked questions about a wide range of related issues.

Bjorn Warloe, a citizen activist who helped pass the Vulnerable Roadway Users law in 2007, cautioned that new laws with punishments for behaviors that make a legislator think, “That could happen to me,” are hard to pass.

We also talked about how a law like this might get hung up by Oregon infamous urban/rural divide. If punishments result in loss of a driver’s license for instance, that’s a much bigger deal in a rural area (where driving a car is the only way to get around) than it is in Portland.

If the DA is able to pursue more criminal charges, that would also end up costing the state more money overall (in court and incarceration fees). It’s the dreaded “fiscal impact” that makes many new law proposals non-starters for some lawmakers.

To that point, Underhill said his office has estimated that there would likey only be a total of 15-16 cases each year in Oregon that would trigger the new law.

Speaking of incarceration, one man shared that he was concerned how a law that increased penalties for certain behaviors felt more like retribution and punishment, rather than a deterrent that would benefit society on the whole. “Is this whole idea just to make us feel good?” he questioned.

Any law that creates a new felony charge — especially one that would be targeted to people driving a motor vehicle — is sure to spur many important questions. It also won’t be an easy lift in Salem. But Underhill and his office are clearly committed to this effort. They’ve worked with this gap for too many years and they feel now’s the time to close it.

Last night’s discussion was the first of what I’m sure will be many more to come.

Stay tuned for more on this topic.

If you were at the event last night, please help complete this recap with your notes from the event and share thoughts about what you heard.

Wonk Night is supported by Lancaster Engineering with adult beverages provided by Widmer Brothers Brewing, Square Mile Cider, and Omission Beer.

— Jonathan Maus, (503) 706-8804 – jonathan@bikeportland.org

NOTE: At BikePortland, we love your comments. We love them so much that we devote many hours every week to read them and make sure they are productive, inclusive, and supportive. That doesn't mean you can't disagree with someone. It means you must do it with tact and respect. If you see an inconsiderate or inappropriate comment, please contact us and we'll take a look at it right away. Thank you — Jonathan and Michael

114 Comments
  • 9watts October 27, 2015 at 12:34 pm

    Impressive all around. Thanks for making this happen!

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  • Mark October 27, 2015 at 12:36 pm

    It’s good to know this DA was frank that legislators realize that these proposed laws could ensnare “normal” people…as really all laws do. I hope Oregon is the first to break down the implied immunity of driving.

    Look, nobody is really saying lock people up for a slip of the wheel..but they are saying that a driver should have a serious ticket against them. And yes, if you continue to drive even knowing that you are risky behind the wheel, yes..maybe you need some jail time to sober up. Besides, white people with money rarely go to jail that long anyhow over a driving issue. Let’s not kid ourselves here.

    When I was far younger, Washington Troopers got me with a neg driving ticket which is on my record to this day (visible in Oregon and Washington) which was well deserved by the way. When I get pulled over even 17 years later, it’s still there on my record. To which a cop can make a judgement about me or a judge. That’s my fault and my consequence. So basically, habitual speeders (which I used to be) are treated with more accountability than those who mow down riders and peds.

    But yet, Mr. Burnside Pop drinker killa’ still to this day , do they not even have a ticket on their record?

    That’s just plain wrong.

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    • shuppatsu October 27, 2015 at 3:53 pm

      “Look, nobody is really saying lock people up for a slip of the wheel..but they are saying that a driver should have a serious ticket against them.”

      But those people can already have a serious ticket under the Vulnerable Roadway Users law, 100-200 hours of community service, re-training, and potential fines up to $12,500. This law specifically provides for a felony for people who have a slip of the wheel. Mr. Underwood and his crew stressed that they would exercise prosecutorial discretion so that they would only go after the really bad actors, but the fox will say a lot of placating things in return for being given the keys to the henhouse. And if not this fox, then one of these fox’s successors.

      “And yes, if you continue to drive even knowing that you are risky behind the wheel, yes..maybe you need some jail time to sober up. Besides, white people with money rarely go to jail that long anyhow over a driving issue. Let’s not kid ourselves here.”

      So because white people with money are not going to spend much time in jail, it’s ok for a law to be on the books so that we can apply it to the poor and minorities? I don’t think that’s what you mean but that’s the implication.

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      • MArk October 27, 2015 at 9:07 pm

        That’s exactly my point. Make all the driving laws you want. If a white driver (with money) is sober, rarely does much happen. If the DA is serious, then minimums need to apply for these crimes…no wiggle room. Kill another driver/biker/ped and it’s proven you were at fault, you go to jail for a minimum amount of time. No wiggle room.

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      • El Biciclero October 30, 2015 at 9:37 am

        “This law specifically provides for a felony for people who have a slip of the wheel.”

        Although the penalties are harsher, careless driving resulting in an “accident” is still only a Class A traffic violation—not even a misdemeanor, let alone a “felony”.

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  • Adam Herstein October 27, 2015 at 1:12 pm

    The law should be changed to use the fact that a crash occurred as prima facie of a driver’s guilt. Let the driver prove that he/she was not at fault; not the other way around.

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    • Hello, Kitty October 27, 2015 at 1:30 pm

      And yet… our constitution places the burden of proof on the prosecution, which is a really really good thing.

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      • Dave October 27, 2015 at 1:58 pm

        While I don’t think that simply criminalizing this is going to stop dangerous behaviour, I think what Adam is saying here is that if you prove that the person was in control of the vehicle and the vehicle caused damage that is enough to secure a conviction. The person who was driving will then have the burden to show that the crash was caused partly or wholly as the result of something/someone else. Use the principles of contributory negligence to decide how much the person is to blame and then let the judge decide the appropriate remedy.

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        • m October 27, 2015 at 2:16 pm

          With respect, you are confusing the standards in criminal and civil cases. Criminal cases have a much higher standard. I think it makes sense to consider revisiting the criminal statutes on this topic to give DAs more tools to use but that does not mean you get to throw out the constitution. The State has to prove their case against a defendant in a criminal case. Plain and simple.

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        • Adam Herstein October 27, 2015 at 2:45 pm

          Yes, this is exactly what I am saying. The driver is operating the far more dangerous vehicle and thus has a far greater responsability to ensure that it is used in the safest possible manner for those around them. Therefore, in a crash between a driver and a vulnerable road user, the burden of proof should be on the driver to prove that they were not acting irresponsably. The fact that a crash happened should be enough evidence that the driver was acting irresponsably and should trigger an investigation in every case.

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          • lop October 27, 2015 at 3:04 pm

            In civil cases. So a driver should be required to carry insurance, have that insurance pay to cover damages suffered by the vulnerable road user unless the driver can prove they weren’t responsible for the crash. But criminal penalties require a different standard of evidence, where the burden of proof should always be on the state.

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          • shuppatsu October 27, 2015 at 3:56 pm

            I normally hate slippery slope arguments, but this would set a horrific precedent to adopt a “guilty until proven innocent” standard to a criminal felony charge.

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          • BeavertonRider October 28, 2015 at 9:05 pm

            Since when is “acting responsible” a legal concept, let alone some thing that is provable? And to what extent must the driver prove this? Preponderance of evidence, reasonable doubt, other?

            And if we’re going to compel drivers to do this when involved in an accident with a cyclist, because, well, cars can be dangerous, why not force all drivers in all accidents to prove they were not acting irresponsibly (whatever that is)? Notice how the logic very quickly breaks down?

            It sucks that the DA couldn’t prove negligence. But that is not a reason to overturn what is a unique legal concept of innocent until proven guilty. We must’nt abandon that to satisfy our emotional needs here.

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          • wsbob October 30, 2015 at 12:36 pm

            “…The driver is operating the far more dangerous vehicle…” herstein

            Purely on the basis that motor vehicles are bigger and heavier than vulnerable road users, a ‘one size fits all’ argument is not going to work with regards to assigning responsibility for collisions to people operating motor vehicles, and involved in collisions with vulnerable road users.

            In traffic situations in which both motor vehicles and bikes are in use, the bike is the far more dangerous vehicle to the person riding it, than are motor vehicles. Compared to bikes, motor vehicles offer better protection to people riding within them, better brakes, better lights, better steering, stability, and by size, better visibility of the motor vehicle to other road users than bikes are to other road users.

            It’s the fitness of the persons operating vehicles, whether it be bike or motor vehicle, that is in need of being more comprehensively addressed. The criteria for DUI, ‘careless driving’ and ‘reckless driving’ may be too lax. That it’s not, may be why DA Underhill couldn’t get the grounds for a criminal charge.

            Out of collisions in which the person driving wasn’t DUI, or speeding, or otherwise making some blatantly obvious moving violation such as speeding, wrong way down one way streets, blowing stop signs and lights, criteria doesn’t currently exist to address particular causes of bad driving that nevertheless occurred. The questionable condition of the person driving and having caused the collision that brought someone on a bike to crash and lose their leg, is a good example of other collisions in which the reason for the collision was difficult to determine or address.

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      • are October 27, 2015 at 9:04 pm

        that said, there is such a thing as strict liability in criminal law, for example drunk driving (you can quibble all day but until you blow point zero eight you do not “know” you are a point zero eight) and statutory rape. what adam seems to be proposing is at least possible along these lines.

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    • Dave October 27, 2015 at 1:47 pm

      Bravo; remember that the word “automobile” appears exactly no times in the US Constitution or Bill of Rights.

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      • Gary B October 27, 2015 at 2:04 pm

        “Due process” does appear. A few times: one of which is the 14th amendment, which protects individuals from deprivation of liberty by the state without due process of law. It’s a really groovy amendment. Presumption of innocence does not appear in there, but has been interpreted as a fundamental aspect of due process. “Automobile” has nothing to do with it.

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      • q`Tzal October 27, 2015 at 2:27 pm

        Yes but…

        Injuries and deaths from automobile “mishaps” should be viewed in a similar legal context as firearm mishaps. Maybe even exactly the same.

        If Person A is out hunting and accidentally shoots & injures Person B the shooter doesn’t get let go by police without so much as a whoopsie-daisy.

        There are plenty of different gradations of culpability and consequences for dealing with the wondrous spectrum of American gun crime, let’s apply that to automobiles.

        Because when it comes down to it a car is just a big, heavy, slow bullet shot by a careless operator.

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        • lop October 27, 2015 at 2:32 pm

          http://www.oregonlaws.org/ors/166.180

          Sounds like it’s a misdemeanor. But some posters here want it to be a felony where the defendant has to prove their innocence if it happens with a motor vehicle?

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          • q`Tzal October 27, 2015 at 4:22 pm

            It’s a time tested proven legal model of how we deal with a similar piece of technology that some segment of the population fervently believes is as god-given a right as sunlight.

            Both require training to use safely
            Both are easy to misuse causing injury or death
            Both commonly used in an unskilled and highly unsafe manner which our society accepts with near total apathy
            Both are so ingrained in the collective psyche of the American public that it is hard to imagine a world without them but we know, logically, that it is definitely very possible to live happy and safe lives without either.

            The big difference is that fewer people are killed in the United States by the two of these technologies that is actually designed to kill people.

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            • Glenn October 29, 2015 at 10:22 am

              Agreed, but the difference in death toll is rather small. Almost within the realm of statistical error (note, “almost”), and may indeed, be within the realm of reporting error (bad methodology, due to there not being a national standard for reporting firearms deaths).

              Point taken though, of all modes of transportation, private automobiles have the highest fatality rate.

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            • wsbob October 31, 2015 at 1:01 pm

              “It’s a time tested proven legal model of how we deal with a similar piece of technology that some segment of the population fervently believes is as god-given a right as sunlight. …” q`Tzal

              Guns are not similar technology to motor vehicles despite efforts on the part of some people to ramp up the rhetoric by attempting to equate motor vehicles and guns as being similar in purpose and function.

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          • El Biciclero October 30, 2015 at 9:45 am

            “But some posters here want it to be a felony…”

            I think there is some confusion among some posters about the difference between an infraction, a misdemeanor, and a felony, and the gradations within each category. I think what people really want is for drivers who injure or kill due to carelessness or indifference not to get off with a mere traffic citation—or less.

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        • El Biciclero October 30, 2015 at 11:22 am

          Perhaps we could map some version of legal/corporate policies for operation of dangerous machinery onto a motor vehicle context. I have no idea what the actual legal ramifications are for a factory/construction site “accident”, but there seem to be pretty substantial implications for company liability and future employment for careless or negligent operators. Maybe if the government were held liable for licensing incompetent operators or allowing incompetent operators to continue operating…? How many times have I wondered, “how did that person ever get a license?” Well, that person got a license from a government agency that deemed the person qualified and competent to operate a motor vehicle. In many cases, it seems the government has made serious errors in judgment about to whom it should grant driving privileges.

          If in cases meeting certain criteria a) the government could be “sued” (or otherwise held responsible in some [perhaps limited] way) for not having policies in place to prevent incompetent or dangerous operation of a vehicle and b) the driver could be “fired” by having their license revoked/car seized, what ramifications would that have?

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    • Chris October 28, 2015 at 9:53 am

      Innocent until proven guilty (of course), but driving the vehicle should be nearly evidence enough. The driver controlled the speed, the brake, and ascertained the condition of the vehicle before driving.

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      • BeavertonRider October 29, 2015 at 9:49 am

        Evidence of what exactly?

        I think you want to use the fact that a person was driving the vehicle as evidence that they are liable…for something. So liability for what? Can or should that liability ever be mitigated by the attendant circumstances? Is there any difference if the driver did not intend to hurt someone, i.e., a cyclist, intentionally or accidentally leaves the designated bike lane and is hit and injured?

        But, of course, it appears that questions like these are simply not tolerated, unreasonable, irrelevant because cars are evil and drivers, therefore, are evil. So any collision involving a car and a cyclist is always, withput question, the fault of the driver and it must be presumed that the driver was intending to not just hurt the cyclist, but intending to cause great bodily harm…

        This thread is really quite sad as it reveals the extent to which many readers here will use car-bike collisions as a basis to eliminate cars or to hurt the people who want to drive cars.

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        • Chris October 29, 2015 at 11:39 am

          Evidence of failure to perform the duties of a responsible driver, resulting in a collision. All too often lack of awareness, restricted line of sight, and distraction are used as excuses by drivers that cause collisions. These are either driver problems, or environment problems, in which case a responsible driver would reduce speed to mitigate.

          Drivers are demonized and always at fault??? I don’t know what world you’re living in… It’s quite the opposite. I’m only advocating some level of responsibility when we operate a vehicle. In my line of work accidents are not tolerated because life is valued, there is no such thing as an accident because those responsible must mitigate them.

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          • wsbob October 31, 2015 at 12:56 pm

            “…I’m only advocating some level of responsibility when we operate a vehicle. …” Chris

            Vehicles, and that includes bikes, given that bikes are regarded as vehicles by Oregon law, and people riding them have the same rights and duties to use of the road as do people driving motor vehicles.

            People driving should not regarded as guilty of collisions between their motor vehicle and someone riding a bike, if it was the person riding the bike that made the mistake.

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  • soren October 27, 2015 at 1:29 pm

    I was unimpressed with the proposed law which would only affect a miniscule number of cases and would be limited to the most severe injuries/disabilities (e.g. the loss of a limb or life-long serious disability).

    Instead of a narrow law with narrow benefit we could adopt a vehicular assault law.

    Washington’s version:

    http://apps.leg.wa.gov/rcw/default.aspx?cite=46.61.522

    (1) A person is guilty of vehicular assault if he or she operates or drives any vehicle:

    (a) In a reckless manner and causes substantial bodily harm to another; or

    (b) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502, and causes substantial bodily harm to another; or

    (c) With disregard for the safety of others and causes substantial bodily harm to another.

    (2) Vehicular assault is a class B felony punishable under chapter 9A.20 RCW.

    (3) As used in this section, “substantial bodily harm” has the same meaning as in RCW 9A.04.110.

    [(b) “Substantial bodily harm” means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part;]

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    • soren October 27, 2015 at 1:42 pm

      OR has a misdemeanor statute that targets pedestrians/cyclists but it requires “recklessness” which is very hard to prove.

      http://www.oregonlaws.org/ors/811.060

      The washington law is a felony and only requires “disregard for the safety of others”.

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  • Catie October 27, 2015 at 1:35 pm

    There seemed to be multiple gaps that prompted the majority of discussion:
    -Driver inattention is not legally negligent on its own, but “I didnt see them” seems like a poor excuse for hitting pedestrians or cyclists when they have the right of way.
    -Even under the vulnerable road users law drivers retain their license for at least a year after the collision. (Curious how many people comply with the community service/road safety requirements?) It seemed most people in the room thought at least a temporary suspension was fair for failing to operate a vehicle safely.

    Also noted, that our legal system just saved a lot of money with legal marijuana, so cost might not be as big of an issue as in the past. Though talking about cost at all sits badly in your stomach when people lose their lives because a driver wasn’t being a responsible road user.
    Great conversations all around.

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  • lop October 27, 2015 at 1:47 pm

    “There’s such a vast gap between traffic citations and a felony.”

    So he wants to create a new felony? Is there no room for a misdemeanor charge between felony and traffic ticket?

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    • Jonathan Maus (Publisher/Editor) October 27, 2015 at 1:53 pm

      Last night Underhill responded to a similar comment as yours by saying that yes, it would create a new felony… “But a felony with wiggle room” depending on the context of the case.

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    • wsbob October 27, 2015 at 7:06 pm

      In reading through the story and comments, I wondered also if a rough draft for the new law had been presented. Thanks for helping to have clarified that it is yet to be introduced.

      Allowing for sufficient consequences of careless and reckless motor vehicle operation, particularly where it results in injury and or death to other people, seems to be what’s lacking from current Oregon laws. Would such a law need to be a felony? Don’t know. Depends on what the objectives decided on for the law, turn out to be, as it’s written.

      Definitely, there is a need for people operating vehicles on the road, to be of a higher caliber of performance, so to speak…and ability. As things are now, as long as a person can pass the driver’s test, and isn’t DUI…in about any conceivable condition, they basically have carte blanche to jump in the car and go down the road.

      They may not be fit to operate a motor vehicle. It seem like some better means needs to be in place to have a greater certainty than exists now, that people will take more of a personal responsibility to be certain they’re fit before operating a motor vehicle.

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  • Jonathan Maus (Publisher/Editor) October 27, 2015 at 1:55 pm

    And keep in mind that no one has seen the details of the actual proposal yet. Underhill is keeping things general at the outset of this conversation so as to not kill the bill’s chances by letting the full details out of the bag too soon.

    On that note, our ideas matter. Keep your constructive criticisms coming because we — the community who’s impacted by this stuff — have the ability to help craft the DAs effort. they’re listening.

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  • PNP October 27, 2015 at 1:56 pm

    Several years ago, a good friend of mine was killed when an unlicensed teenager drove his mother’s SUV over the top of her car at 30 mph and crushed it (she was stopped at a light). By the time the rescuers could get to her, she hadn’t been breathing for at least 15 minutes.

    The result? He got a traffic ticket.

    Would I like to see the negligence gap closed? You bet I would. There needs to be some kind of accountability other than a few hundred dollars in traffic fines for killing someone. The local DA told me that they couldn’t find criminal culpability, so that was that. It’s just not right.

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    • Dave October 27, 2015 at 5:17 pm

      You are describing just the kind of murder that makes an assumtion of guilt until innocence can be proved look like a good idea.

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      • BeavertonRider October 29, 2015 at 9:53 am

        “Murder”?

        Please, can we all agree that words matter and that we ought to use those words properly instead of manipulating their definition on an as-needed basis to stir emotions?

        What the incident above reveals is a problem with current laws. Lets focus on that rather than deliberately twisting langauge to score emotional points.

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      • El Biciclero October 31, 2015 at 1:52 pm

        It’s not murder unless it is intentional. “Homicide” (I think) is the generic term for a person being killed, without assuming intent. Perhaps this kind of incident is a case of Negligent Homicide, but I don’t think it would be thought of as “murder” in any current legal context.

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        • lop October 31, 2015 at 9:48 pm

          Murder doesn’t always require intent to kill.

          https://en.wikipedia.org/wiki/Felony_murder_rule
          https://en.wikipedia.org/wiki/Depraved-heart_murder

          As to what level of reckless or negligent driving would qualify…

          A bit more than a year ago a state appeals court in NY reduced a conviction of second degree murder for a driver who killed a pedestrian attempting to flee from the police. He wasn’t convicted of intentionally killing anybody, but he was originally convicted of murder anyway for acting with “depraved indifference” towards human life. The appeals court said his actions didn’t meet that standard.

          http://www.streetsblog.org/2014/07/23/new-yorks-top-court-exhibits-depraved-indifference-to-pedestrians-lives/

          A couple weeks ago that ruling was cited in reducing the second degree murder conviction of a driver who suffered a seizure while driving a garbage truck. He neglected to inform the DMV or his employer that he was epileptic, and went off his meds shortly before the crash because it “interfered with [his] enjoyment of liquor.”

          http://www.streetsblog.org/2015/10/19/appeals-court-nixes-murder-conviction-of-off-meds-driver-who-killed-two/

          In both cases the second degree murder charge was reduced to manslaughter. Some people are very upset about the new standard. I don’t know enough about what sort of non-transport related unintentional killing is murder in NY to comment on whether the rulings are appropriate. Worth noting, the manslaughter conviction does carry a prison term of 5-15 years, it’s not like they’re getting off with just a traffic ticket.

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          • El Biciclero November 2, 2015 at 11:00 am

            IANAL, and fully admit not knowing all the subtle shades of law that come into play in various situations. This is why it’s tricky discussing legal nuances on a bike blog. Lots of people here are knowledgeable about Oregon traffic laws, but there are still numerous apparent cases of “I don’t think that word means what you think it means.” And the meanings of some terms seem to vary by state as well. I guess I understand unintentional or non-premeditated homicide being considered “murder” if it happened during the commission of some other felony, or as the result of “depraved indifference”, as you cite. Thanks for the examples.

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    • Chris I October 28, 2015 at 9:47 am

      And I’m sure the police called it an “accident” and “a horrible tragedy”.

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      • El Biciclero October 31, 2015 at 1:53 pm

        I think this is exactly the point of the DA’s efforts as described in this story: we need something in between “murder” and “tragic accident”.

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  • m October 27, 2015 at 2:00 pm

    Adam Herstein
    The law should be changed to use the fact that a crash occurred as prima facie of a driver’s guilt. Let the driver prove that he/she was not at fault; not the other way around.Recommended 1

    Wow.

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    • soren October 28, 2015 at 12:04 pm

      California law makes a default assumption of culpability when a pedestrian is hit while crossing the roadway.

      I guess California and most of the developed world also merit a…Wow.

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      • m October 28, 2015 at 1:30 pm

        For Criminal cases?

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    • El Biciclero October 30, 2015 at 3:45 pm

      Again, I think there is some confusion with legal terms here. “Guilt” seems to imply criminality; I think what Adam might mean is “fault”, as in whose insurance company is on the hook (he can correct me if I’m wrong).

      As it stands, it is nearly the opposite of what Adam hints at—at least where car-bike collisions are concerned. It usually seems as though the bicyclist involved in a collision must prove their own innocence in order to receive any kind of restitution/settlement from insurance and avoid their own traffic citation. Ask 9watts, who recently received a citation based solely on hearsay (the word of a driver who was also being given a citation). It would seem 9watts, as a bicyclist, was “presumed guilty” by the officer and forced to either just admit guilt by paying the fine or go to court to defend himself and “prove” innocence. Why not apply the same standard to drivers who crash into pedestrians or bicyclists?

      When it comes to actual criminal cases, I don’t think anyone rightly desires for IUPG to be tossed, but as the DA in this story explains, there should perhaps be some standards of criminality with lower thresholds that are somewhat easier to prove.

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      • 9watts October 30, 2015 at 4:41 pm

        That was a bit of a strange ticket, I agree. I hadn’t thought of it in quite these terms, but your reading is astute. Cars and those who pilot them are the unmarked category.
        https://en.wikipedia.org/wiki/Power_%28social_and_political%29

        “The unmarked category becomes the standard against which to measure everything else. For most Western readers, it is posited that if a protagonist’s race is not indicated, it will be assumed by the reader that the protagonist is Caucasian; if a sexual identity is not indicated, it will be assumed by the reader that the protagonist is heterosexual; if the gender of a body is not indicated, will be assumed by the reader that it is male; if a disability is not indicated, it will be assumed by the reader that the protagonist is able bodied, just as a set of examples.”

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        • El Biciclero November 2, 2015 at 10:26 am

          That’s why if you call 911 to report a dangerous driver, you have to say “I was proceeding, or traveling down the street when I saw this guy…” The police will assume you are in a car. By all accounts, if you admit you are riding a bike, prepare for zero response.

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  • m October 27, 2015 at 2:02 pm
  • Gary B October 27, 2015 at 2:06 pm

    Sorry, but did I miss where you told us what the proposed law actually would say?

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    • Jonathan Maus (Publisher/Editor) October 27, 2015 at 2:21 pm

      No. You didn’t miss it Gary. The DA isn’t releasing the proposed language yet. Once they do, we’ll post it and do a follow-up.

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  • NF October 27, 2015 at 2:23 pm

    I attended last night & greatly appreciate the improved understanding I have of the challenges faced by the DA in prosecuting certain driver negligence cases. Thanks to BikePortland & the DA’s office for holding this event! I thought about laying out my response in a series of comments, but opted to put it all here in one long one…

    First, I left the event in deep thought. I’m still mentally processing a couple of great conversations I had last night (apart from the main discussion), including one really thought-provoking conversation about the pros & cons of the proposed legislation. There are some who wonder why the state should be involved and make criminal matters out of driver negligence. It’s a good point, but when we consider that typical households—including those that do not own cars—pay $1100/year to subsidize cars (this from http://www.theatlantic.com/business/archive/2015/10/driving-true-costs/412237/), that in itself might be a reason to involve the state. That is to say, the State’s already involved, which is to say, we the people *are* the state and as such need to create statewide rules for how to handle negligence when operating a motor vehicle. If non-drivers & drivers alike pay annually so that everyone can more easily afford to own & drive cars, that is really a socialist operation. Certainly, it’s not purely socialist when a small percentage of citizens are disproportionately capitalizing off the system, while another percentage is greatly oppressed by it (who may not even be aware how much so). These thoughts veer off a bit from the legislation itself, and aren’t the end or be all of my thinking on this; this is just where my thinking went after taking in brand new analysis on the costs of driving, and how those costs are shared by all of us, combined with this event.

    The conversation I had also raised the point that there are equity issues to consider. We know traffic citations are often issued subjectively, and that profiling does occur. Some people might have a longer history of traffic citations than others who are just as negligent, but weren’t regularly cited. We know the DA would take traffic citation history into consideration in a case. But is citation history an accurate representation of negligence, or is being cited or not more about luck, or worse, bias? Some reassurance around that question is needed from the DA.

    There are ongoing questions about how negligence should be defined (i.e., if your driving license states you’re restricted to driving with corrected vision, and you haven’t had your eyes checked in five years but drive anyway, is that criminal negligence?). I think tougher laws against distracted driving would help, but we were also reminded that in light of vague excuses like “I didn’t see them,” camera footage is always evidence. So place a camera on your car dash, and on your bikes!

    All of that said, the overall feeling I came away with is that fixing the gap in the law is necessary, & would encourage most people to drive even more carefully (a great thing). Science & stats behind this hunch would be helpful. It would be great if we had the kind of communities where offenders & offended could sit together and hear how the offender has harmed the other (like Fresno’s Victim Offender Reconciliation Program, http://vorp.org/ does). Ironically, the driving environment itself discourages organic connection between humans… thus the need for laws and/or nonprofit programs like VORP.

    I spoke at the end of the meeting with Jeff Rhoades, who explained that one appeal for rural Oregonians—that is to say, for all Oregonians—is that everyone in the state should be guaranteed the constitutional right to retribution. And in rural Oregon, people are often forced to walk roads with narrow shoulders and no sidewalks, just like in some cities & suburban areas. There would ultimately, therefore, be a statewide benefit to closing the negligence gap.

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    • 9watts October 27, 2015 at 4:07 pm

      “everyone in the state should be guaranteed the constitutional right to retribution.”

      Did you mean restitution?

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      • NF October 27, 2015 at 9:35 pm

        9watts, Retribution is the word Rhoades used. This is my understanding of it: Today, the punishment for severely injuring a vulnerable road user with a motor vehicle can only be a traffic citation, which, in our DAs’ opinions, is not appropriate retribution for the “crime” (in quotes because due to the existing gap in law, severely injuring someone with a motor vehicle can’t technically be charged as a crime, even if the person was driving illegally).

        With the gap-filling legislation, if a driver shouldn’t have been behind the wheel due to, say, a revoked license, our DAs would have a way to prosecute with that fact in mind & on the table. The person who knew they’d been ordered not to drive, yet chose to drive anyway, then injured someone, would no longer be off the hook.

        If any part of my understanding isn’t correct, I hope one of the DAs will drop by here with a comment to clarify, but as I understand it, restitution in cases like this is currently only possible through civil action, if at all. But full retribution, our DAs are indicating, should perhaps be prison time, which ensures among other things that the person who caused injury is no longer able to hurt anyone else with their car. My sense after listening to Rod Underhill speak is that when our DAs are fighting for the injured party, appropriate retribution—while it may not ensure restitution—is something they want to be able to win, not only “for” their client, but for the community as a whole.

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        • 9watts October 28, 2015 at 8:45 am

          Thanks, NF, for the clarification. I haven’t used that term in quite the same was as the DA (who probably has a good handle on it). Merriam Webster’s synonyms:
          payback, reprisal, requital, retaliation, revenge, vengeance

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        • Alan 1.0 October 28, 2015 at 11:25 am

          NF, thanks for your contributions. I’d just like to suggest that you choose specific words other than “crime” to match what you mean to say. “Crime” can be many things, from holocausts or genocide to completely legal actions (it’s a crime that food rots in the field while people are hungry), but words like infraction, misdemeanor or felony carry very particular legal meanings which are germane to this discussion.

          My take, without the legal knowledge that people like Underhill and Rhoades have, is that I’d like some way forward for victims to seek at least restitution and probably retribution but to do so on the civil side rather than the criminal/felony side. Greater use of existing laws, please, including infractions such as Oregon’s Careless Driving 811.135, might need to be bolstered with laws making such convictions be “prima facie” or “strict liability” evidence for civil cases.

          I’d also like known bad drivers to be off the streets (they can still walk or bike on them). Maybe, as Opus says below, that needs to be dealt with at the felony/jail level.

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          • NF October 28, 2015 at 12:36 pm

            Alan 1.0, it’s because I’m not a lawyer & don’t know precise meanings of legal terms like “misdemeanor” (I don’t know precisely what constitutes a misdemeanor) that I shy away from using them in comments like these. People do use many words more loosely or broadly than their “official” definition, so I understand your concern with people here using the word “crime.” It never hurts to look at a word’s etymology or at least its dictionary definition for the sake of good communication. “Crime” tends to be defined as a noun along the lines of: “An action or omission that constitutes an offense that may be prosecuted by the state and is punishable by law.”

            One thing that results from defining something as a “crime” though, that I’ve noticed some people are uncomfortable with, is the person who is caught carrying that action out then becomes a “criminal.” And during the Monday night discussion, some people were resistant to the idea that a negligent driver could become a “criminal” after injuring someone with their car. Maybe this is because up to recent months in our society, we’ve been overly accustomed to hearing negligent driving crashes described as mere “accidents.” And some people still don’t see how texting while driving is a crime, etc.

            That Washington law mentioned above by soren is interesting; I wonder if there’s information on how that law has affected overall driving behavior in that state?

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        • Dead Salmon October 29, 2015 at 8:16 pm

          NF, you incorrectly claimed you could not be charged with a crime if you injured someone. The original BP article clearly says that you can be charged with a crime: “…..Either the DA must be able to prove that the vehicle operator deserves criminal charges which require a very high legal threshold of “recklessness” and “gross negligence”; …..”

          Thus, you can be charged with a crime if recklessness or gross negligence can be shown.

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          • NF November 2, 2015 at 3:01 pm

            Yes, yes—you’re right: there are instances where driver negligence is so egregious, it can be proved, and charged. What I am referring to is the category of driving behaviors that are negligent, but can’t be charged as crimes right now (they might be said to be “criminal” in the poetic sense of the word, but are not criminal in the legal sense). Is it possible for our definitions of “reckless” and “gross negligence” to evolve to handle those differently? I think El Biciclero’s comment does a great job of going into this further: http://bikeportland.org/2015/10/27/at-wonk-night-county-da-announces-effort-to-change-state-law-166850#comment-6583430.

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    • lop October 27, 2015 at 5:47 pm

      Why should public funding of roads turn a civil suit into a felony criminal charge?

      Say I go golfing, and while finishing up a hole another golfer neglects to wait for me to finish, tees off, and hits me with his ball. We will assume I had done everything correct, and the other golfer was or should have been aware that he was required to wait, but did not. Now I’m injured, and should be able to file a civil suit to recover damages. The course was privately funded, so the DA says the sate wasn’t a party and he doesn’t file any charges against the other golfer. The next day the golf course works out a deal with the state, they secure a property tax break that gives them the funds they need to build a new clubhouse and reseed the greens. The day after a similar incident happens. Should the golfer who cause injury at that point be charged as a felon since it happened in a publicly funded environment?

      If an old woman is hit by a driver or a cyclist while crossing the street in a crosswalk with the light and she breaks her hip the driver or cyclist would be a felon. If it happens a couple hundred feet away in a mall that’s private property they wouldn’t. DA says sorry, we aren’t a party here. Too bad you didn’t get hit on public property. And too bad the mall where you got hit didn’t have a property tax break that would make it publicly funded.

      Seems like a weird trigger to get the state involved.

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      • are October 27, 2015 at 9:10 pm

        i do not see this anywhere in NF’s argument

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      • NF October 28, 2015 at 8:02 am

        lop, I was more offering the idea that here’s a situation where all of us together are responsible for creating the consequences of a weight we believe right to hand down to negligent drivers, to communicate to all that if someone wants to be negligent, they shouldn’t do it in a 3500+lb motor vehicle unless they’re okay with going to jail. It might not be so weird for the state to get “triggered” since it already does if the person injured dies.

        To riff on your illustrative golf course analogy* a bit (this isn’t an iron-clad analogy, but nonetheless): Let’s say the negligent golfer who hit you on the head with their ball had been banned from the club (let’s trust it was for a good reason, like he didn’t pass the golf safety course for two years in a row) and now he’s here golfing without his license. He says he “has to,” for his job. He claims when he clobbered you, he “just didn’t see you, oops!” (Hopefully someone had a camera on their golf bag—the footage could be used as evidence against him.) Currently, if you die from the golf ball hit, the law allows the DA to win appropriate retribution. However, if you live, even if you’re stuck in the hospital for a year, the DA’s hands are tied. That guy only has to pay a small fine of, whatever it is, $100 bucks. In light of that, your chances in a civil suit are what they are. Plus, there’s no way to keep that guy from coming right back to the club tomorrow & doing it all again to someone else. Even if he’s not welcome in the club.

        *Keeping in mind, I’ve only ever mini-golfed. Never been on a golf course!

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        • Dead Salmon October 29, 2015 at 8:41 pm

          NF says: “…….to communicate to all that if someone wants to be negligent, they shouldn’t do it in a 3500+lb motor vehicle unless they’re okay with going to jail……”

          Have you ever had a drivers license? Did you take drivers ed? I’m guessing that most drivers know that if they drive recklessly or negligently that they can go to jail – it’s fairly common knowledge – as is the knowledge that you can be sued for everything you have and everything you will likely ever have in the future. I will give you this however: perhaps there should be more emphasis on the point in the drivers test – like every written test should include some questions about it. I could see that because many of our drivers today are from other countries where the standards are likely lower and/or different, some may be unaware of the potential liability.

          There is no “gap” – this original BP article clearly states that you can be charged with a crime – this whole whoopla is whipped up by attorneys who are pissed that they lost a case. As was reported in earlier BP articles, the cops investigated that case and determined that the driver was not negligent or reckless – that’s why they lost the case – there was no case.

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          • NF November 2, 2015 at 12:43 pm

            Dead Salmon, I suppose it depends a lot on how we already do—or would like in the future—to define “reckless” and “gross negligence.” My guess is, many of our drivers today are from right here in America, where those standards & definitions are legally pretty lax compared to other countries. (Check out how other countries treat DUI compared to us in the U.S., Norway for example, or Columbia: https://en.wikipedia.org/wiki/Drunk_driving_law_by_country).

            My other guess is that anyone who hasn’t read an Oregon Drivers Manual recently is potentially unaware of a lot of new driving rules, infrastructure & consequences. There’s nothing that legally requires long-time Oregon drivers to brush up on their knowledge, like if it’s been more than 10 years since they took their written test. Maybe there should be?

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    • Chris October 27, 2015 at 9:09 pm

      The individual that disagreed with requiring responsibility while driving admitted to his own irresponsible driving, and his disinterest in any consequences to being “unlucky”.

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    • BeavertonRider October 29, 2015 at 10:02 am

      “We know traffic citations are often issued subjectively, and that profiling does occur.”

      When has this been disputed? Of course we rely on officer discretion because the law cannot anticipate all events and all attendant circumstances. . That discretion is exercised by taking into account a variety of factors, such as the instant facts in that moment, eg, speed, perceived carelessness, environmental conditions, etc. Additonally, when discretion is available, officer’s shpuld and do take into account the driver’s license status and driving record. Is there something objectionable here?

      Maybe what you were trying to argue, but couldn’t bring yourself to say, is that we know racial or gender profiling occurs and that this profiling leads to disparate treatment in instances of vehicle-bicycle incidents? Do we really know this? Or are you extrapolating from the well-publicized, but difficult to show, correlative feature in general traffic stops?

      Im interested to know how “we” know that the undefined profiling you assert is occurring is, in fact, occurring.

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      • NF October 29, 2015 at 3:13 pm

        Thanks for clarifying that point of confusion, BeavertonRider. To be clear, yes, you & I agree that it’s hugely important to be both knowledgeable & outspoken about the injustices that occur around subjective policing & profiling, while also being careful in our use of language, including tone.

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    • Glenn October 29, 2015 at 7:46 pm

      People sure are helpful, aren’t they NF?

      Let’s recap:
      1) Maybe when you said “retribution” you actually meant “restitution.”
      2) Maybe when you said “crime” you actually meant “not crime.”
      3) Maybe when you said “profiling,” which in ONE word covers ALL profiling, you meant (but didn’t dare say) “racial and gender profiling.” (Which uses up FOUR words but only covers TWO kinds of profiling.)

      Everybody’s an editor. Each one bolder than the last in his mansplanations, and not perceptive enough to notice how his predecessor got SCHOOLED ever so patiently. I don’t know how you keep calm. All this profiling is a crime I tellya, and if I were you I’d be looking for retribution!

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      • NF October 29, 2015 at 9:45 pm

        Hahaha! Glenn, what’s humorous to me is, I’ve posted on BikePortland anonymously in the past, and others have discussed some of my comments assuming I was male: “he said in his post” etc. But as a male, I never got any suggestions, helpful or otherwise. Maybe men are missing out?

        To be fair, the OR constitution uses the word “restitution,” so the usage of “retribution” isn’t 100% clear to me either. If it hadn’t been the end of the night, I would’ve asked Mr. Rhoades to tell me more, because I’d like to better understand it, but I only had time to ask him to repeat the phrase for my notes. I hope the DAs’ll drop by here to comment at some point.

        Oh—and what keeps me calm? Riding my bike of course. ;-)

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    • Dead Salmon October 29, 2015 at 8:22 pm

      NF says: “….but when we consider that typical households—including those that do not own cars—pay $1100/year to subsidize cars…..”

      Question for you: how much do you think the typical household that do not own bicycles pay to subsidize cycling infrastructure? Answer: essentially all of the costs are paid by those who drive cars. Kind of gives one pause, no?

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      • NF November 2, 2015 at 12:12 pm

        The low cost of bike infrastructure vs. the high cost of the car means that actually, bicycle-riding households subsidize car use both through their taxes, and by taxing the roads and environment less than motorists. I found a couple articles I’ll be reading through for more information: http://transalt.org/sites/default/files/resources/blueprint/chapter1/chapter1g.html; http://www.sfbike.org/news/biking-by-the-numbers/

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        • wsbob November 2, 2015 at 12:32 pm

          “The low cost of bike infrastructure vs. the high cost of the car means that actually, bicycle-riding households subsidize car use both through their taxes, and by taxing the roads and environment less than motorists. …” NF

          That’s a popular rationale, debatable as to credibility, some people like to occasionally bring forth to criticize people that drive. The economic ecosystem of today’s civilization, sustaining its culture, is for at least the foreseeable future, based on motor vehicle transport: not bike transport.

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          • 9watts November 2, 2015 at 3:11 pm

            “debatable as to credibility”

            would you care to debate it, then? If there’s something in Todd Litman’s Whose Roads? you disagree with, let’s hear it.
            http://www.vtpi.org/whoserd.pdf

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          • NF November 2, 2015 at 3:13 pm

            I think this is very often brought up in the spirit of education, not to criticize anyone (gaining awareness is why I personally am interested in discussing it). These facts may be arising in the first place due to quite a bit of misinformation being spread about who pays for roads. We probably don’t yet know the whole story.

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      • Opus the Poet November 2, 2015 at 12:40 pm

        I can’t tell if you are serious or trolling, since there are NO car specific funds used to build bicycle infrastructure. 99% comes from general funds, I would say 100% but some Federal grants I can’t identify the source of the revenue.

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        • Michael Andersen (News Editor) November 2, 2015 at 1:56 pm

          True in most of the country, not true in Portland proper. Almost all of our road money, including bike infrastructure money, comes from fuel taxes, tab fees and parking fees.

          However, Portland taxpayers are also (like all federal taxpayers) definitely subsidizing the Interstate system big time. That’s a lot more expensive.

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  • gutterbunnybikes October 27, 2015 at 7:27 pm

    Closing the described loophole would be amazing, as would a new level of prosecutorial tools.

    Just wondering if upping the ante for hit and run had come up. I’d like to see any hit and run prosecuted as a felony, as far as I’m concerned it’s leaving them for dead – and it is happening way too often.

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  • Dead Salmon October 27, 2015 at 7:51 pm

    Lots of problems with this story:

    1) The proposed law isn’t stated so we have no idea if it’s reasonable or not.
    2) Corkett was partially responsible for his accident. The cyclist in front of him avoided the collision, speed was a factor, etc.
    3) No description given for the Chris Chandler accident so we don’t know what fault lies with Chris. I’m guessing at 2AM it was dark outside – was he wearing the typical asphalt-colored clothing that is so popular in urban areas today? No, I’m not making an excuse for driving off after hitting someone – that is not acceptable and it is a crime; but in many accidents the fault is shared – just like the Tillicum bridge cyclist/ped collision – both share some part of the blame but obviously the cyclist has the most blame.

    Let’s see the proposed law – if he’s presented it to law makers then it’s out there.

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    • bjorn October 27, 2015 at 10:33 pm

      The fact that 1 of 2 cyclists in the vicinity of the intersection managed not to lose a limb does not indicate that the cyclist was at fault. There is zero evidence that the cyclist was speeding, the DA was quite clear that after a lengthy analysis they found that the driver was completely at fault and he actually said that if alistair had died he would have been able to charge the driver with a felony and that he would have done so.

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      • BeavertonRider October 28, 2015 at 9:08 pm

        Read more carefully and you’ll that’s not what the poster said. He stated that since one of the two cyclists avoided the crash, then the other cyclist shares some responsibility.

        Setting aside emotions, I see nothing unreasonable about that observation. In fact, it’s highly rational and relies on actual events rather than appeals to emotion.

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      • Dead Salmon October 29, 2015 at 8:48 pm

        bjorn says: “…There is zero evidence that the cyclist was speeding,…”

        Note that I did not say he was speeding. I said speed was a factor. They were moving fast enough thru an intersection that they could not stop when a vehicle turned in front of them. It’s not speeding and it’s not illegal, but on a bicycle you have the choice to go slower thru intersections so you can slow down. It’s not popular, and I don’t do it much either, but I know I’m taking a huge risk by going fast thru intersections – it is not safe.

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        • Bjorn October 30, 2015 at 2:35 pm

          In the 7 page memo that the DA’s office produced around their decision not to charge the driver they specifically said that the cyclists’s speed was not a factor. At the event the DA specifically said that had Alistair been killed the driver would have been charged with a felony.

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        • El Biciclero October 30, 2015 at 4:47 pm

          “I know I’m taking a huge risk by going fast thru intersections”

          Should be, “I know I’m taking a huge risk by going through intersections”

          Pedestrians get hit in crosswalks, children get hit standing on the sidewalk, bicyclists get hit going slowly through intersections (I did). Other than staying home, how can one avoid “taking huge risks” if they are anywhere near a moving automobile?

          If the cyclist who avoided the collision was in front of the victim who was going “too fast for safety”, how then was he not going too fast? If he was going the same speed or faster than the victim, how did he avoid the collision? Maybe if the victim would have been going fast enough to be in front, he would have been the one to avoid the collision. Did the evasive maneuvers of the leading cyclist contribute to the victim’s inability to avoid the crash? Perhaps the bicyclists should have known to ride farther apart just in case of this very eventuality. Perhaps they should have known better than to venture out onto the street at all?

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        • wsbob October 30, 2015 at 6:32 pm

          “…They were moving fast enough thru an intersection that they could not stop when a vehicle turned in front of them. …” dead salmon

          Salmon…how fast in some rough mph number, give or take two or three mph one way or another, would you guess was too fast for straight through the intersection persons on a bike to be traveling, if it was apparent that across the intersection from the opposite direction, someone in a motor vehicle was waiting to make a left turn across the direction of travel of the persons on the bike?

          No report was made that the person on the bike and first through the intersection was riding faster than the person behind. Or how far apart the two people riding were.

          I suppose it’s possible to argue that the second guy on the bike through the intersection was somehow at fault. With this particular traffic collision, any argument to that effect would inescapably be a very weak one though. The collision more likely seems to have occurred because the person driving waited until the people riding were too close to his vehicle, before deciding to turn across their direction of travel. Why he would decide to do that, apparently not being DUI, I think many people would like to know.

          The mystery causes of some collisions, strikes right to the problem of how society and law enforcement currently seem not able to address reasons for the occurrence of such collision.

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        • El Biciclero November 2, 2015 at 9:15 am

          Also, “speed is a factor” in every collision. Stationary objects rarely collide.

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    • Chris October 28, 2015 at 8:21 am

      Is this a joke? In your mind is a person automatically responsible for getting hit if they are on a bike, or if they are being a pedestrian (loading a vehicle at the curb)? In both cases there is no question as to responsibility.

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      • Dead Salmon October 29, 2015 at 8:56 pm

        Chris,

        Not at all, but in many cyclist/car collisions both parties share some fault – same with most car/car collisions. If YOU drive or ride in a really safe manner (it’s BORING! and slow) then you will probably not have collisions. It’s up to YOU since you know with 100% certainty there will be unsafe drivers cutting you off and not obeying the law – YOU can drive/ride safely enough that even if they do those illegal/stupid things you will be able to avoid getting into a collision with them. BUT it’s not as much fun.

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  • Angel October 27, 2015 at 8:33 pm

    I think that if there were any sort of new state law like this, I’d like to see it done in tandem with a couple other laws: equity-oriented education and equity-based improvement goals for police, and extremely strict licensing laws:

    Driving above the speed limit? License suspension. Do it again and lose the privilege of driving a motor vehicle in Oregon. Driving drunk? Texting while driving? Lose the privilege of driving a motor vehicle in Oregon.

    The benefit to the strict licensing laws is that people driving motor vehicles are less likely to ever end up killing or injuring people on foot or on wheels in the first place.

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    • are October 27, 2015 at 9:11 pm

      this. also gets you past the due process arguments raised above.

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  • Angel October 27, 2015 at 8:35 pm

    Frankly, I don’t care whether people who drive unsafely are labeled as criminals or not. I just don’t think they belong in the driver’s seat.

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    • Chris I October 28, 2015 at 9:51 am

      And it will be much easier to keep them out of a vehicle if they are treated as criminals. Even with America’s absurdly lax gun laws, convicted felons are essentially the only group of people who are actually prohibited from owning them.

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  • AndyC of Linnton October 27, 2015 at 9:18 pm

    Hmm. Interested to see where this takes us. Wish I could have been there in person. I’ll ruminate on all this.

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  • Tom Hardy October 27, 2015 at 11:31 pm

    In the case of “Mr. Burnside” he was clearly guilty of negligent homicide. He was behind the wheel, nobody else was in the car. He was indulging in something else beside driving, drinking a coke, texting,watching TV, or whatever.

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    • BeavertonRider October 29, 2015 at 10:08 am

      So clear that the prosecuting attorney did not reasonably believe that he successfuly charge, let alone secure a guilty verdict for such a charge.

      But to you it is so clear… You present the clearest reason why we must have clearly written and recorded laws so that individuals cannot simply twist legal concepts and words to arouse emotional responses and wrongly convict others of crimes they did not commit.

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  • Opus the Poet October 28, 2015 at 10:08 am

    Can we at least make death or serious injury inflicted by an unlicensed driver a felony? And unlicensed for whatever reason, never had one, failed to renew, or suspended or revoked, with suspended or revoked being aggravated cases with enhanced sentencing requirements.

    In my mind driving without a license is the same as illegal possession of firearm, except cars are massively more lethal than any man-portable firearms.

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    • Edward October 29, 2015 at 1:53 pm

      Such a strict liability statute dispensing with the mental state of criminal responsibility (and/or defining it by status) would have a serious problem with Constitutiinal safeguards.

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      • are October 31, 2015 at 8:19 pm

        again, there is strict liability for statutory rape. mistake as to age not a defense. what has to be proved are the component actions. seems to me you could work up something analogous here. perp knew s/he was driving a car.

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  • Jesse Merrithew October 28, 2015 at 2:44 pm

    I suggest you ask yourself four questions before supporting this: What purpose would this serve? How much would it cost? Would a law like this have prevented any of the injuries that we are concerned about? What are the motivations of the DAs and legislators who are so quick to support a new criminal law?

    Purpose: deterrence? Does anyone believe that works? Has it worked in any other area of public policy? As far as restitution is concerned: restitution covers only economic loss (medical bills, lost wages, and the like). It does not compensate for noneconomic losses (pain and suffering and the like). Both are recoverable in a civil lawsuit where the standard of proof is much lower than a criminal case and negligence is enough.

    Cost: Not only in terms of the DAs needed to prosecute the cases, but the defense attorneys to defend them, the judges to oversee them, and then, likely, the cost of incarceration (approximately $30k per year in Oregon). Place on top of that the costs we as a society bear when we choose to put someone in prison.

    Prevention: If criminal laws don’t serve as a deterrent, then even with the law on the books, these people are still injured.

    Motivations: If Rod Underhill and any of the other political players are really concerned about these type of road safety issues, will they stand with us in supporting money for separated bike lanes? What about talking to businesses about how they believe removing on street parking is an important public safety issue? Will they help pressure the city to commit a dedicated crosswalk enforcement detail that operates citywide, all the time, without notice? Do they support speed cameras? Red light cameras? If not, why not? Isn’t that use of resources far more likely to actually prevent future injuries than adding yet another criminal law? Shouldn’t we be using these tools as a first step and the criminal law as a last resort rather than the other way around?

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    • Chris October 28, 2015 at 8:55 pm

      The person that chose to not be careful, and negligently assaulted Corkett is out there on the road right now. Do you really have interest in public safety? This is the prime example of what should be criminal because it would save lives.

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    • Chris October 28, 2015 at 8:57 pm

      Maybe criminal retribution is expensive, doesn’t influence behavior, and doesn’t save lives… If so, we should repeal ALL criminal laws. Do you truly believe that???

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  • Chris October 28, 2015 at 8:53 pm

    The person that chose to not be careful, and negligently assaulted Corkett is out there on the road right now. Do you really have interest in public safety? This is the prime example of what should be criminal because it would save lives.

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  • Edward October 29, 2015 at 1:50 pm

    I’m just going to answer some questions raised by many of the comments.

    A crime is the combination of a “bad mental state” + an act + a result. So when Joe decides to kill Billy, points a gun at him and says, “Now you die” and shoots him dead, that’s a criminal homicide. See ORS 163.005. Joe intended to do it, did it, and billy died. Homicide. There are a very very few strict liability crimes which dispense with the mental state, such as DUII.

    A felony is any crime for which a person could (theoretically) face more than a year incarcerated. But note that with the sentencing guidelines, many minor felonies get less than misdemeanors (for example, a maximum of 30/90 days).

    A misdemeanor is any crime for which the maximum punishment is a year or less of jail.

    When the DA talks about, “restitution” this is a legal term of art. Victims of crimes can use the criminal prosecution to force the defendant to pay them for economic damages, and those victims also have access to some state funds.

    “Retribution” is punishing somebody for what they did, like “an eye for an eye” under the code of Hamurrabi(sp?).

    Without regard to whatever happens in a criminal prosecution, a person injured by another can file a civil suit to make them pay for damages. Remember OJ Simpson? State didn’t prove the crime beyond a reasonable doubt, but the families of the deceased still “won” in civil court.

    If you are hurt in accident, you can sue the other person. If you die, your family can sue the other person. If the other person was uninsured, you can recover from your own insurance company (the under-insured provision). Sometimes victims prefer the civil system because it means the wrong-doer will be more likely to come through on payments (most prisoners don’t have much money).

    Many crimes come with an automatic license suspension, for which the judge essentially has no discretion (meaning if convicted, the judge has to order the suspension).

    People can have their licenses suspended for many reasons. Failing to pay fines can result in a suspension. Generally, if the suspension was for committing a crime, then driving while suspended for that crime is also a (new) crime (and probably a probation violation). It would also be easy to write a new statute that says if you were the driver of a vehicle and caused a serious physical injury or death to another person, the police should notify the DMV, who should then suspend the license. They already do this for breath test refusals and for failing a breath test.

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    • Chris October 29, 2015 at 3:28 pm

      If there are very few, then perhaps there are not enough. The first strict liability laws were for factory safety standards, which have saved countless lives. Given these, your statement is false, a crime is an act + a result. You can include a bad mental state if that means either intention OR the intention to be negligent.

      Although utilitarianism is a distinct philosophy, retribution serves some utility, whether it’s keeping society safe from the criminals activities (whether intentional or negligent) or teachable/cultural.

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      • Edward October 31, 2015 at 6:48 am

        There are a lot of laws that regulate our behaviors in a lot of different ways. Laws do not have to create (or define) new crimes.

        When you talk about strict liability and factory safety standards, that usually refers to something like worker’s compensation. The bargain there was that workers who were injured on the job could get compensated without having to prove negligence, but the damages are less than the regular civil tort system. That’s an example of strict liability law, which does not create a crime. Every time a worker is injured a business owner does not get convicted and go to jail.

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    • Dead Salmon October 29, 2015 at 9:21 pm

      Thanks Edward. Good information.

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  • NF October 29, 2015 at 11:20 pm

    Monday night gave me so much food for thought I’ve been researching & reflecting on the topic since. I found Jesse Merrithew’s list of questions above to be a nicely organized summary of important things to ask. However, I find myself grappling with questions of Motivation first & throughout, rather than last in the list. And in the Motivations category, I’ve been asking: “What might the opposition’s Motivations be?”

    While there’s scholarly research floating the Web on how drunk driving laws have or have not deterred bad driving behavior* my sense is there’s something more immediate & concrete at stake than possible behavior deterrence. For me, resolving the Motivation question keeps returning to that; here are my reflections & questions I’d ask the DA if I could:

    First, I heard Mr. Underhill state his motivations in person, and was moved by what felt to me like their strong sincerity. Then, reviewing the Oregon constitution, I gain intellectual confidence in our DAs’ motivations: To make sure no individuals—not even 10 or 15 victims per year—are denied their state right to “prompt restitution from the convicted criminal who caused the victim’s loss or injury.” -Sect. 42 1(d)

    Question I’d ask the DA: Do victims injured by negligent drivers currently share the same state rights constitutionally afforded to victims in criminal prosecutions? Forgive me, but is that the very gap being remedied? Assuming victims of car violence by a negligent driver do—or should—have that constitutional right, that presents an obvious Purpose of either new legislation, or changes to that section of the constitution I quoted from.

    Related questions: Should a merely cited driver who caused a victim’s loss or injury result in untimely or no provision of restitution? And, in 43(3)(a) it reads, “‘Victim’ means any person determined by the prosecuting attorney or the court to have suffered direct financial, psychological or physical harm as a result of a crime.” Is a victim in this case not legally a victim because the injurer’s harmful act can’t legally be charged as a “crime”?

    As to the motivations of those opposed: Negligent driver defense attorneys (as well as car insurance companies who’d have to pay) might be motivated to keep the state constitution’s wording as-is, and to oppose new criminal driving laws. But when I skim Sections 42 & 43, I don’t see a reason to doubt the DAs’ obvious & stated motivations: to protect individual victims from the people who injured them. Not only does it seem victims’ rights to restitution are being unconstitutionally denied, but victims’ and the public’s right to protection granted in Section 43 are being denied when certain negligent drivers aren’t charged with crimes after injuring someone.

    Seems like the DAs need and want, appropriately, to clarify what our state constitution really means. Are the victims injured by negligent drivers who hurt them with cars entitled to restitution & protection or not?

    *Deterrence results in Norway, Sweden, Portugal, etc. may differ from the US; some studies seem to suggest that automaker propaganda (including or by way of car commercials) sways the US population toward egocentric driving behavior, excessively lax consequences for negligent driving, and finally, lax enforcement. Maybe auto commercials need to be required to include a prominent warning stating how many daily deaths cars cause.

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  • Edward October 31, 2015 at 7:33 am

    NF,

    I think you’ve got it mostly right. The civil system is different from the criminal system. Sometimes the two systems are completely separate, and sometimes they overlap.

    What the DA is saying is that he can’t get a judge to order restitution until there’s a conviction. Criminal restitution has its own variety of problems (like the economics of how most criminals are poor and simply cannot pay).

    There are a lot of car crashes every day. There’s an entire industry for this, insurance companies, auto body shops, plaintiffs attorneys, etc. If you are injured in a crash, or your property is damaged, you can use this system to get paid. The DA’s office has almost nothing to do with this system most of the time. The DA’s office’s most common interaction with this system is in instances of DUII crashes and Hit and Run crashes.

    And yeah, the law can be really weird in outcomes. We’d all probably agree a person injured in a crash is a victim. But as far as the criminal law is concerned, that person is only a victim entitled to restitution if the other person is convicted of a crime. When is a victim not a victim? When there’s no crime. But whether or not a criminal prosecution happens or whether or not it is possible, the injured/damaged person can still pursue civil remedies (like file suit against the other driver or try to recover from their own insurance company).

    And I’ll add this: when I drive a car or ride my bike, I try to be careful because …. well, just because it’s the right thing to do. Any deterrence happens in a different slower part of my brain. Something pops out in the road in front of me and I hit the brakes. Whether it’s a person, a cat, or a kid’s ball. When I brake for squirrels there is no internal debate about whether or not it’s a crime. I just stop.

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    • NF October 31, 2015 at 9:19 pm

      Thanks, Edward, that expounding is helpful. So essentially, outside of so-called Illegal Per Se driving, or without camera proof of illegality, we rely mostly on the privatized “car crash industry” for restitution, but unlike worker’s comp programs (like SAIF, https://en.wikipedia.org/wiki/State_Accident_Insurance_Fund), restitution comes through private channels. And in private arenas, it’s not unheard of for the moneyed to successfully fight paying restitution. So unless we count the fact Oregon requires car drivers to carry private car insurance, there’s no such thing as “road-user compensation” for all, even though roads are public, not privately owned (or maybe because of that).

      I like to believe there are many road users (most?) who do their best to be careful. It is the right thing to do, and holding a state-issued driver’s license implies we’ve agreed to that. But as with gun owners, there are those who aren’t careful in public spaces, who are not in the mindset to be safe for themselves or others. With guns there are some safeguards like locks or storing them unloaded. But a car at 30mph with its driver distracted doesn’t have a safety lock that protects a person in a crosswalk. Careful & vulnerable road users are endangered daily by motorists who risk:

      -Driving intoxicated with substances including prescribed medication
      -Driving when it isn’t medically advised to do so
      -Reading & texting on a cell phone placed on their lap or in their hands while in the driver seat of a moving motor vehicle
      -Speeding after leaving late, trying to make up time while worrying about negative future interactions instead of focusing on the road
      -Engaging in road rage, or an intense interaction (argument, maybe) with a front seat passenger, or disciplining children in the back seat while driving

      I have a feeling in the days before cell phones, DOTs were very concerned about that kind of bad driving behavior (drunk driving especially) but went in a direction away from deterrence & enforcement, and toward air bags & seatbelts, which protect others in cars but not vulnerable road users.

      If the state feels nervous about creating laws that make those negligent behaviors crimes, maybe we need to think about doing away with private car insurance & adopt a state-mandated “road user compensation fund.” Maybe, depending on how it was formed, both the state and individual road users alike would be more incentivized toward safety. Maybe road users whose vehicles weigh the least, pay the least, which would incentivize active commuting, which eases road repair costs, & so on.

      Our DA’s proposed legislation sounds like a quicker fix.

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      • wsbob November 2, 2015 at 12:42 pm

        “…there are those who aren’t careful in public spaces, who are not in the mindset to be safe for themselves or others. …” NF

        That’s something upon which consensus on the part of the public could likely be easily reached.

        It appears that a fair number of people favor ‘after the fact’ consequences for having caused collisions due to, for whatever reason, not having been as you wrote: “…careful in public spaces, who are not in the mindset to be safe for themselves or others. “.

        I’m trying to understand, how those kinds of consequences, realistically, may effectively work to have on the road, people in a mindset that will help the roads be safer than they are now, for everyone.

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  • El Biciclero November 2, 2015 at 2:10 pm

    “I’m guessing that most drivers know that if they drive recklessly or negligently that they can go to jail…”

    And “most drivers” tend to drive accordingly—when they’re paying attention and thinking about it, but the key word is “can“. “Most drivers” also know that they would have to be driving drunk and on meth, going twice the speed limit and driving on the sidewalk for at least two blocks, “establishing a pattern of recklessness” prior to killing someone before they would be considered “reckless” under current law. Then there are those few drivers who don’t care one way or the other who they run over—and they also know how hard it is to be charged with a crime. Even if they don’t know, they still benefit from this legal difficulty.

    “There is no ‘gap’ – this original BP article clearly states that you can be charged with a crime…”

    My earlier example is a bit of an exaggeration, but again, “can“—if you meet a very, very high threshold for “reckless” or “negligent”. But if you kill someone through mere “carelessness”, you might get some traffic safety education, and 16 – 32 minutes per day (average) of community service for the next year. Only if you fail to complete your safety course and community service within the year do you receive a fine or license suspension. And your level of violation is bumped up from a Class B traffic violation all the way to a Class A traffic violation.

    The “gap” exists—as has been noted in several comments—between rarely-applied “careless” driving and very-hard-to-prove “reckless” driving. The so-called VRU amendments to ORS 811.135 (Careless Driving) were meant to close a small part of this gap, but the VRU rules are so rarely applied that even that small step has seemingly had very little effect.

    In my mind, the gap could be closed in two ways: either stiffer penalties or lower thresholds for existing violations, if they meet certain criteria (similar to the VRU conditions), or by passing new laws or introducing new degrees of “careless” or “reckless” that have their own progressively more severe penalties associated with them. While drivers may now know that they “can” be charged with a crime, all of us drivers (I’m one, too) need to know that it is likely we will be charged with some kind of violation/misdemeanor that has more than a mere citation with a nominal fine attached in the event we are driving with any less than the required 100% attention and cause damage or injury through our own lack of attention. Even if we just saw more consistent application of the VRU statutes it might make a difference—certainty of minor consequences is a bigger deterrent than a marginal chance of severe consequences. And a marginal chance of minor consequences merely encourages the gambler in us to take chances with other people’s lives.

    “…this whole whoopla is whipped up by attorneys who are pissed that they lost a case.”

    Nobody “lost” a case; no case was presented due to the lack of any existing law of which the driver could have been found in violation.

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    • El Biciclero November 2, 2015 at 2:12 pm

      Should be a reply to Dead Salmon

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