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‘Negligence gap’ bill passes committee 4-1, now heads for Senate vote

Posted by on February 10th, 2016 at 1:37 pm

prozanski
Senator Floyd Prozanski ferried
the bill through committee.
(Photo: J. Maus/BikePortland)

The Oregon Senate Judiciary Committee voted 4-1 to pass a bill that would revise existing law and create a new crime for negligent motor vehicle operators.

As we reported yesterday, Senate Bill 1553 would add one sentence to the list of behaviors that could result in someone charged with violating ORS 163.165. The sentence reads, “[A person commits the crime of assault in the third degree if the person:] With criminal negligence causes serious physical injury to another who is a vulnerable user of a public way by means of a motor vehicle.”

The Multnomah County District Attorney’s office is pushing for this new law out of frustration over cases where someone causes serious physical injury due to their negligent driving and is able to walk away with only a traffic ticket. The new crime would come with a felony charge punishable by a maximum of 11 months in jail for the most egregious cases. The DA’s office say they anticipate most of the cases will result in probation and a restitution payment plan to the victim overseen by a parole officer. In total the law is estimated to be triggered in about 15-16 annual cases statewide.


At this morning’s committee work session there was a brief discussion from Republican Senator Kim Thatcher. Thatcher worries the new law will capture too many people undeserving of the charge. Yesterday she expressed sympathy for people who might collide with a vulnerable road user on accident. “I understand the motivation to want to nail a person to the wall,” she said, “but I also have concerns the other way.” Today she said “I still strenuously object to creating a felony and I’m not going to be supporting this.” Thatcher is also not happy that this traffic-related issue has been stuffed into a larger omnibus bill that deals with something completely unrelated (extending the statute of limitations for sex crimes).

Committee Chair Floyd Prozanski (a bicycle rider himself who passed Oregon’s safe passing law after his friend was killed on a ride) strongly supports the bill. He said the bill has “safeguards” built in to make sure it’s only triggered when specific conditions are met. Those conditions include serious physical injury to a vulnerable road user and a criminally negligent mental state by the person behind the wheel.

Now the bill will head to the Senate floor for a vote. Jeff Rhoades, a legislative liaison with the Multnomah County District Attorney’s Office, tells us the vote is likely to take place around the middle of next week. Once it passes a full Senate vote (which is likely given its strong support in committee) it’ll head to the House Judiciary Committee for consideration.

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

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32 Comments
  • shuppatsu February 10, 2016 at 1:59 pm

    I sure hope this fails. Putting somebody in jail and giving them a felony record for negligence? Absurd and alarming.

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    • Adam H. February 10, 2016 at 2:05 pm

      Do you not agree that someone who causes another person to be seriously injured though their own negligent actions deserves to be punished? If anything, this should serve as a deterrent: better pay closer attention or you could hurt someone and spend time in jail.

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      • shuppatsu February 10, 2016 at 3:05 pm

        Maybe a bit. Not jail time or felony registration. Not for anything short of recklessness.

        Of course, the driver is liable to the victim, but that’s what the tort system is for.

        I am skeptical of deterrence arguments. I just don’t think people are appreciably deterred that way. Take the $150,000 penalty for each single instance of knowing copyright infringement, for example.

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    • Scott H February 10, 2016 at 2:35 pm

      If you accidentally kill someone with a firearm you’ll go to jail for involuntary manslaughter. I’d like to know why you think the consequences for that kind of negligence should be any different just because you’re inside of a vehicle.

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      • shuppatsu February 10, 2016 at 3:17 pm

        Who said it was? Criminally negligent homicide is already on the books. It doesn’t carve out homicides committed by motor vehicle.

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        • Ted Timmons (Contributor) February 10, 2016 at 8:55 pm

          The reality is entirely different. Negligence in a vehicle is standard practice. Simply saying “I didn’t see them” is a get-out-of-jail-free card.

          Vulnerable road user laws are an important part of Vision Zero.

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          • BeavertonRider February 11, 2016 at 12:32 pm

            Negligence in a vehicle is standard practice? Maybe if you define negligence down and totally diminish it as a clear descriptor of behavior. Negligence is not determined by the result of an action, but by the behavior that caused the action.

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          • shuppatsu February 11, 2016 at 2:54 pm

            Negligence is a different standard than criminal negligence, though the latter is not well-defined. And this law does not change the standard applied for homicides. But I agree that “I didn’t see them” is most often a get-out-of-jail free card. And thank God. Call me old-fashioned, but I like my crimes to be intentional. Again, there’s the civil side for establishing liability.

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      • BeavertonRider February 11, 2016 at 12:31 pm

        Well, Scott, did the accudent involve a death? If not, then death by gun and injured by car are not analogous scenarios, therefore, you’d not reasonable expect similar criminal complaints.

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    • q`Tzal February 10, 2016 at 3:57 pm

      Also: jail time is not mandatory, it would be an option that DA’s can not exercise at this point.
      The DA interviewed specifically said that most punishments would be probation and court ordered restitution…
      BUT…
      In cases of repeat offenders and blatantly malicious drivers who will only stop being a clear and present danger when restrained by law the jail option is good to have in the prosecution toolbox.

      As for the civil/tort process: it favors justice only for those who can afford the cost in legal fees and the slow judicial pace.
      For a family where the primary income earner has been killed or is unable to work money to survive is needed RIGHT NOW and the civil court system isn’t set up for that.

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      • shuppatsu February 10, 2016 at 4:04 pm

        You can put in a repeat offender sentencing provision. It’s done all the time. As for maliciousness, that’s a standard beyond recklessness. You can get to those people already. This law wouldn’t change that.

        You make a good point about the tort system. Lawyers will work on contingency of course, but then they take a big chunk out of your award.

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        • q`Tzal February 10, 2016 at 5:00 pm

          And yet we currently have no effective means of stopping unlicensed and uninsured drivers who repeatedly critically injure people but not enough for vehicular assault charges to stick.

          In Oregon we have a vast bloody legal gulf between a simple traffic ticket and vehicular manslaughter which seems to require a pre-written notarized statement of intent to run someone down with your automobile.
          This legal gulf is littered with the bodies of hundreds killed or left permanently disabled and destitute by a vehicular code that excuses all but pre planned murder as “WHOOPSIE!”.

          This. Can. Not. Stand.

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      • Tom Hardy February 11, 2016 at 10:17 am

        I think that work farms need to be brought back. If a motorist does not have insurance and or is a repeat offender, then the ex-motorist should be allowed to work it off at about $10 a day for the restitution for hard labor.

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      • BeavertonRider February 11, 2016 at 12:34 pm

        That’s odd… People here seem to want felony criminal determinations for injury/death caused by drivers, but no jail time for felony convictions?

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    • Opus the Poet February 12, 2016 at 12:27 am

      As I read the bill it would eliminate the requirement for someone to get killed before prosecution under the Vulnerable User law. It’s like the difference between manslaughter and illegally discharging a firearm when someone gets hurt but not killed. It holds people responsible for “accidents” that cause people walking or riding a bike to get killed or seriously injured, just at a lower level for wrecks with survivors.

      Motor vehicles are deadly devices capable of destroying small buildings (like houses). We treat them and their destruction far too casually.

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  • bikeninja February 10, 2016 at 2:20 pm

    I have always found it amazing that an outcome that would result from any other activity besides driving would have these same penalties. For instance, if one was to walk around a shopping mall swinging a sword and you accidently cut off someone’s arm you would definetly go to jail, or if you were shooting a gun in the park and hit someone you would be criminaly charged but somehow (perhaps the backing of a powerful industry?) one can cause mayhem and destruction with a motor vehicle and pass it off as an accident. It is about time the laws for negligent use of a motor vehicle were the same as for the negligent use of any other dangerous technology.

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    • shuppatsu February 10, 2016 at 3:10 pm

      No. People are harmed due to negligence all the time and people don’t go to jail. Your examples are examples of recklessness. Harming someone while driving recklessly is already a felony.

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      • Scott H February 10, 2016 at 3:16 pm

        It’s not already a felony, that’s the whole point of this bill. It’s spelled out pretty well in the first three paragraphs of this article.

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        • shuppatsu February 10, 2016 at 3:43 pm

          No, the point of the bill is to lower the standard from recklessness to criminal negligence, but for automobiles only.

          Here’s the current law: “A person commits the crime of assault in the third degree if the person….Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon.” ORS 163.165(1)(a).

          The Oregon Supreme Court has ruled that for purposes of the statute, a recklessly driven car is a weapon. State v. Hill, 298 Or 270, 692 P2d 100 (1984).

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          • Scott H February 10, 2016 at 7:26 pm

            Your entire argument seems to be that I should be able to kill someone with a car negligently but not recklessly. I don’t know what kind of state you want to live in but the majority of us don’t want to live in a state where minuscule semantics allow us to kill each other with cars.

            Negligence is defined as failure to take proper care, recklessness is defined as failure to care about the consequences. If you are seriously advocating that one of those should excuse a murder but not the other, you need to rethink your stance here.

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            • shuppatsu February 11, 2016 at 3:21 pm

              This is a non sequitur, but addressing what you have to say anyway…

              I disagree with your characterization of my position, but you’re not completely wrong about what I’m saying.

              First off, like I said before, criminally negligent homicide is already on the books, and has the same mental culpability standard as the proposed law. So when debating this law change, all this talk about killing is misplaced.

              Though you have me in spirit. I don’t think an accidental killing, absent recklessness, should land someone in jail or give them a felony record accessible to employers for non-driving-related jobs. This is unjust, unfair, and unproductive. Ruining a life is not going to heal the other one. And it’s hard to pay restitution when you’ve lost your job and/or sitting in jail.

              That doesn’t mean you can’t suspend their license, and it doesn’t mean that the perpetrator is not liable to the victim.

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  • Todd Hudson February 10, 2016 at 2:24 pm

    It sounds like the “fiscal impact” checkbox on the bill analyses (done by relevant agencies like DOJ or county DAs) will either be not checked, or acknowledged as negligible. That is promising in terms of bill passage.

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  • bikeninja February 10, 2016 at 3:41 pm

    Compared to other dangerous activities the threshold of negligence for which someone is held accountable when driving a motor vehicle is unreasonably high. Being distracted or inattentive is not an excuse if a pilot crashes a plane in to a school. Perhaps at one time , the consequences of a farmer crashing his model T on a dirt road while daydreaming were not great but in todays urban environment the consequences are serious and it is only resonable that we adapt the laws to fit the circumstances

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    • shuppatsu February 10, 2016 at 4:00 pm

      This is a good argument, though it’s a value judgment for which I disagree (most of the other arguments have only convinced me that people don’t even know how this bill changes the current law).

      Because it’s a value judgment, it’s not something I can rebut compared to the factually wrong assertions elsewhere in the thread. But I’m pretty sure cars could always kill people (and did much more in the olden days on a per-trip basis), and again, criminally negligent homicide is already on the books.

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      • q`Tzal February 11, 2016 at 1:14 am

        The life lost to a “WHOOPSIE” from a automobile driver is NOT a “value judgment”.

        It is an absolute measurable loss of individual life, freedom, economic stability for their family members and that random victim’s contributions to society forever lost.

        To so casually excuse negligent driver behavior, whether intentional or not, that causes such extreme loss is tantamount to saying that anyone outside of a motor vehicle is a worthless waste of space whose life isn’t deserving of the same respect as the occupants of the motor vehicle.

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        • shuppatsu February 11, 2016 at 3:23 pm

          Of course it’s not. Did I say it was? How we handle it is. Of course it is. Otherwise we’d advocate the death penalty or life imprisonment for everything.

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      • q`Tzal February 11, 2016 at 1:14 am

        Criminally Negligent Homicide is nearly impossible to prove conclusively in court. The DA’s only fall back position is relatively minor traffic infractions that don’t punish the driver in any way other than a small one time fine versus the more than ×100 expenses forced upon the victim and their families.

        There needs to be intermediate gradations in the vehicular code when it comes to consequences for bad actions. This is NOT what exists now.

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        • shuppatsu February 11, 2016 at 3:25 pm

          If criminally negligent homicide is impossible to prove conclusively in court, why would this law be any different? It’s the same standard applied.

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  • Randall S. February 11, 2016 at 9:58 am

    I look forward to this law being passed and then never, ever, ever enforced.

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    • q`Tzal February 11, 2016 at 10:40 am

      I look forward to defacto consequence free murder in the streets.

      Oh, wait, we already have that.

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  • q`Tzal February 11, 2016 at 4:34 pm

    If you find yourself being angry about this possibly becoming law, worried about about how easily you could end up in jail for just a “tiny accident”….
    YOU ARE THE PROBLEM.

    You SHOULD BE terrified every mile you drive that you may be held responsible for harm YOU CAUSED with your bad driving habits.

    If you don’t want to be responsible for your actions DON’T DRIVE.

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  • EmilyG February 12, 2016 at 11:12 am

    I’m so glad this bill’s chances of passing are looking good, because this is a gap in the law that absolutely needs to be filled. Many thanks to the DA and deputy DAs for initiating this bill, and Senator Prozanski for championing it! I will definitely be writing some supportive letters.

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