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Linn County DA won’t prosecute driver who admitted checking his phone before deadly hit-and-run crash

Posted by on March 17th, 2016 at 11:20 am

“The evidence shows that (the driver) diverted his attention away from the road in the moments immediately preceding the crash… he noticed something on his phone, which was on the seat next to him. He then looked down, and it was in this moment that the crash occurred.”
— Alex Olenick, Linn County Deputy DA

A case from Corvallis should send a shiver down the spine of anyone who uses our roads.

As reported today by the Gazette Times, the Linn County District Attorney’s Office has decided to not file charges against the driver who hit and killed 34-year-old Shiloh Sundstrom while he was walking on the side of a road east of Corvallis on the night of November 22nd. The auto user admitted to drinking and looking down at his phone prior to the crash. Despite these facts, the Deputy DA Alex Olenick said the evidence wasn’t enough to prove the driver acted with criminal negligence.

We’ve covered this legal situation numerous times and are aware of the existing limitations in Oregon law around traffic crashes. The threshold to prove intentional and reckless behavior by the driver of a car in situations like this is very high and often — even when it’s clear that a person’s behavior was dangerous and led to the crash — DA’s feel they must decline to prosecute.

What makes this case stand out however, is the statement Olenick made in his report. Here’s the relevant excerpt from Olenick’s memo (taken from Gazette Times with my emphasis):

Olenick noted in the report that there was no evidence to support that the driver acted intentionally, so the prosecutor focused his analysis on whether there was sufficient evidence that the driver acted recklessly or with criminal negligence in causing the crash.

“The evidence shows that (the driver) diverted his attention away from the road in the moments immediately preceding the crash,” Olenick wrote in the report. “(The driver) told police that he noticed something on his phone, which was on the seat next to him. He then looked down, and it was in this moment that the crash occurred.”


Olenick wrote that the question was whether the act of looking at the phone, and away from the road, constituted conduct that was criminally negligent, which is defined as a “gross deviation from the standard of care that a reasonable person would observe in the same situation.”

“This presents a difficult question on which reasonable minds may differ,” he wrote. “My analysis is whether simply looking away from the road at his phone is any different from looking in one’s blind spot, looking at a map, grabbing a cheeseburger, or turning momentarily for any other reason where the practical effect of the behavior is to deviate one’s attention from the road…

“I cannot conclude that (the driver) acted recklessly or with criminal negligence when he struck and killed Mr. Sundstrom with his vehicle.”

19261799-mmmain
Scene of the collision.
(Photo: Oregon State Police)

It’s worth noting that the auto user also admitted to drinking prior to the crash but by the time authorities were contacted it was too late for a breath test.

Legal constraints are one thing; but it’s outrageous for a DA to casually dismiss distracted driving in this context (where alcohol had been consumed and a man was killed as a result). Earlier this month a bill pushed by the Multnomah County DA’s office tried to make it easier to prosecute someone whose careless driving led to serious injury; but the bill died after trucking and automobile lobbyists convinced lawmakers that it was unfair to motor vehicle users.

This isn’t a legal issue or an enforcement issue, this is a cultural issue.

When we drive a car we are operating a deadly weapon. Until people respect it as such and adjust their behaviors accordingly, and until our justice and legal systems follow suit, these unavoidable accidents senseless and preventable tragedies will continue.

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

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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

150 Comments
  • Pete March 17, 2016 at 11:31 am

    Ugh. Exactly two years ago my neighbor Stan Wicka was killed riding in a bike lane when Melanie Souza was seen texting and drove off the road, then was followed to a coffee shop down the street from the collision. DA talked tough because she hit and run, but ultimately nothing substantial happened. Deja vous.

    http://www.mercurynews.com/ci_23270453/woman-set-be-charged-hit-and-run-killing

    My condolences to Mr. Sundstrom’s family. :(

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    • Pete March 17, 2016 at 11:33 am

      Sorry, three years… we miss Stan and it still seems like yesterday.

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  • Bjorn March 17, 2016 at 11:35 am

    I believe this is another case of a drunk driver who has avoided more serious penalties by fleeing the scene and waiting to sober up before turning themselves in. For some reason the DA also seems to have decided not to release the name of the driver. Not releasing his identity only furthers the impression that the DA is more concerned about protecting the driver than justice for the victim in this case. This case seems like one where the VRU law should apply which would at least compel some community service, but time is likely running out to cite the driver.

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    • Chris I March 17, 2016 at 12:19 pm

      The hit and run penalty should exceed the DUI penalty. People will still do it, because there is a chance that they won’t get caught. But the penalty needs to be severe, to discourage the act.

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    • RMHampel March 17, 2016 at 1:29 pm

      You can believe whatever you please. While the driver admits having been drinking, no one knows how much. Please do NOT assume the driver was over the legal limit to drive. Or do you not believe in due process?

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      • Bjorn March 17, 2016 at 1:40 pm

        If he wasn’t drunk why would he run?

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        • 9watts March 17, 2016 at 1:50 pm

          Oh, I don’t know. Maybe ’cause he just killed someone with his car and didn’t want to face the consequences right then?

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        • lyle w. March 20, 2016 at 11:56 am

          That’s why the penalty for running should make this question irrelevant.

          Okay, so whether you were drunk or not, you’re gonna lose your pants on the hit and run charge and subsequent sentence, so I guess it’s up to you whether you wanna own up to if you were drunk or not.

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      • Active March 17, 2016 at 2:03 pm

        Alcohol should be banned completely for drivers. You should not be allowed to drive a car after one sip of alcohol. Period. That would help get us get to a world where there are closer to Zero deaths on the roads than there are today. I don’t care if you have all your faculties under control after 1 beer or 2 beers in two hours or whatever. I love to drink but it does not mix with driving.

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        • B. Carfree March 17, 2016 at 10:52 pm

          Commercial drivers have half the limit for alcohol. It should be halved again to 0.02% and the same standard should be used for amateurs. I don’t think zero works since there are other dietary sources of alcohol, like fruit, that could yield a non-zero BAC.

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      • JP March 18, 2016 at 7:27 am

        Clearly there needs to be a legislative response to this type of behavior. Due process is, of course, important, but not more so than the rights of citizens to be free from criminal behavior that seriously harms them. In many states (and other countries), the penalty for leaving the scene of an accident is worse than for DUI or otherwise negligent or criminal driving. This has proven very effective in reducing the numbers of drivers who flee the scene of an accident.

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      • Gasper Johnson March 18, 2016 at 2:12 pm

        Whats the due process for the family of Shiloh Sundstrom?

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      • Jennifer March 19, 2016 at 7:44 am

        Oregon is a zero tolerance state. Any amount is too much. And to leave a Man dying on the side of the road to be found the next day is horrible.

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  • Adam H. March 17, 2016 at 11:35 am

    “My analysis is whether simply looking away from the road at his phone is any different from looking in one’s blind spot, looking at a map, grabbing a cheeseburger, or turning momentarily for any other reason where the practical effect of the behavior is to deviate one’s attention from the road…

    Yeah, maybe don’t do any of those things while driving.

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    • Mike Reams March 17, 2016 at 11:53 am

      I always check my blind spots for, among other things, pedestrians and cyclists.

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      • Adam H. March 17, 2016 at 12:14 pm

        Checking blind spots sure, but why should we excuse people who are eating cheeseburgers, drinking soda, or looking at maps when they should be paying attention to the road?

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        • Adron @ Transit Sleuth March 17, 2016 at 2:12 pm

          seriously.

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        • nuovorecord March 17, 2016 at 3:10 pm

          Dead is dead…why a driver chose to take their eyes from the road really doesn’t matter when the outcome is that tragic.

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          • Scott H March 17, 2016 at 7:55 pm

            It matters because we can prevent it from ever happening again, if we investigate the cause and take corrective measures (it’s called ‘improvement’). Your ‘boys will be boys, water under the bridge’ sentiment will ensure that more people will die, when they don’t have to.

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          • Opus the Poet March 19, 2016 at 2:06 am

            There is only one caveat I see to your statement, if the driver was preparing to make a lane change and checking his blind spot, then he has to take his eyes off the road for the simple reason that human beings can’t look two directions at once.

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            • q March 19, 2016 at 12:06 pm

              Even that isn’t an automatic excuse. Before checking your blind spot, you still have to look ahead to be sure it’s safe to take your eyes off the road. If it’s not, you shouldn’t change lanes. Everyone’s missed exits and lane changes because conditions made it unsafe to check their blind spot.

              Plus, it only takes a second to check your blind spot. To hit someone who was ahead of you during that split second, you’d have to have been really close to them at the time you turned your eyes away-i.e. only a second or two ahead of you, meaning certainly visible.

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              • 9watts March 19, 2016 at 1:35 pm

                While we’re talking about how risky or dangerous it is to check your blindspot it is probably good to remember that *speed* isn’t some exogenous thing, something that is foisted upon you as the driver. If those shoulder checks and such are hard to imagine fitting in in time then you’re probably driving too fast for conditions. I suspect Olenick probably isn’t familiar with that rule either but he should be.

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            • Keegan March 19, 2016 at 3:33 pm

              Do you hit things when you make lane changes? If so, I encourage you to slow down, look further ahead before looking back, and even adjust your mirrors so you don’t have a blind spot. As someone under the age of 25, I can tell you that driving schools are beginning to teach that blind spots are no longer relevant with the right mirror adjustment. My driving teacher slowly walked around the vehicle after adjusting the mirrors to prove that with mirror overlap, there is never a point at which he didn’t appear in a mirror. It works! Though they still recommend a quick over-the-shoulder glance (possibly legally required or recommended). If you do hit something when glancing over your shoulder though, you’re overdriving your headlights and your reaction time. This alone is negligent if nothing else (cell phone, drinking).

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            • Dan A March 19, 2016 at 4:04 pm

              Even so, are there a lot of drivers out there leaving their lanes when they look over their shoulder? Or driving outside the fog line?

              I’m assuming Sundstrom was not walking down the main lane of Hwy 34 and was killed on the shoulder.

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        • wsbob March 17, 2016 at 6:56 pm

          Deputy DA Alex Olenick hasn’t referred to the level of attention diverted away from the road while engaged in other activities, that some people in comments to this story have:

          “…“This presents a difficult question on which reasonable minds may differ,” he wrote. “My analysis is whether simply looking away from the road at his phone is any different from looking in one’s blind spot, looking at a map, grabbing a cheeseburger, or turning momentarily for any other reason where the practical effect of the behavior is to deviate one’s attention from the road…” bikeportland

          Olenick is speaking of situations involving attention momentarily turned away from the road, rather than an extended suspension of attention directed to the road. Can most people eat snacks and whatnot, or drink a soda, tea, coffee or some other non-intoxicating beverage, and still direct attention to the road and operation of their vehicle, functioning as good vehicle operators?

          I think they can, though also, I think it’s good for people to give some consideration to just what might be the percent of attention to the road while driving, that can be reasonably expected of people. Would that degree be 100 pecent? 90? 80? Should any direction of the eyes of people operating motor vehicles, away from the road or mirrors, and into the interior of the car or to other activities than operating the vehicle be allowed?

          The Gazette-Times article, reports some on the story given by the person driving. It says:

          “…The report said that the driver later told authorities that, immediately after the crash, he “turned around to see what he had hit, saw nothing, and then continued driving.” …” gazette-times

          If true…not a hit and run. I wonder if the district attorney had police talk to the bartenders at the Elks Lodge, which the article reports, the person driving left around midnight. They, and other people in the bar, may have some idea of how much the guy drank that night.

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          • 9watts March 17, 2016 at 7:44 pm

            “Can most people eat snacks and whatnot, or drink a soda, tea, coffee or some other non-intoxicating beverage, and still direct attention to the road and operation of their vehicle, functioning as good vehicle operators?”

            This is some strangely motivated speculation on your part. The driver in this case obviously wasn’t a good vehicle operator by most standards I’d subscribe to, so why do you feel it is useful to go down this path in a comment to this particular story?

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          • J_R March 17, 2016 at 9:10 pm

            So, wsbob, we have long known that the “I didn’t see him” excuse is a defense against hitting someone, but now you are providing a new definition that “I turned around after I hit something and didn’t see anything” is a valid excuse to make it “not a hit and run.” Disgusting.

            We might just as well make the law clear: Motorists do no wrong when they are driving; bicyclists and pedestrians shall be considered collateral damage if they are struck or even killed by motorists under all circumstances.

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            • wsbob March 18, 2016 at 11:03 am

              “…we have long known that the “I didn’t see him” excuse is a defense against hitting someone, but now you are providing a new definition that “I turned around after I hit something and didn’t see anything” is a valid excuse to make it “not a hit and run.” …” J_R

              I’m not saying the collision was a hit and run. The person driving says the collision wasn’t a hit and run, and in support of his claim, he says he turned the car around, went back and looked for something he may have hit with his car.

              As simply a newspaper and weblog reader, getting details about the incident from stories there, do I believe the claim of the person driving, that he turned the car around and looked? Look elsewhere in this comment section for other comments of mine: I’m skeptical of his story. Sounds like he’s making things up. Or, if he really did turn the car around and look, why didn’t he see the person to the side of the highway that he hit, which someone the next morning was able to find? Too far away from the side of the highway? Obscured by shrubs, etc? Too drunk, and was maybe more interested in avoiding responsibility for the collision?

              People ought to be thinking and asking how thorough was the investigation of the collision. Maybe the police and the DA’s office didn’t do a thorough investigation, for lack of money? I don’t know, but sounds like a reasonable question. If the police, or somebody… to try find out how drunk he was, didn’t at least go and interview people at the Elks Lodge where the guy driving says he was drinking, I’d have to be very uncertain about the thoroughness of the investigation of this incident.

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          • are March 17, 2016 at 9:25 pm

            any number of studies have shown that people are incapable of assessing the degree to which engaging in a second activity distracts from capable management of the first. you or anyone might have thousands of uneventful experiences driving with a cup of coffee in one hand, but that does not mean you were as ready for emergent situations as if you did not have a cup of coffee in your hand. it just means you were lucky.

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    • 9watts March 17, 2016 at 1:51 pm

      “Yeah, maybe don’t do any of those things while driving.”

      Why? According to this DA they are apparently all reasonable tasks one might expect to engage in while piloting an automobile.

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  • RH March 17, 2016 at 11:39 am

    I’d be curious to know how DA’s in other countries would have acted, just for perspective. The US is way too casual with drinking and driving. My friend in Texas said you can still talk/text on a phone while driving a car in that state!

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    • David March 17, 2016 at 2:05 pm

      Taiwan adopted 0.03 BAL as their new standard and it applies to both driving vehicles and riding bicycles. If BAL is above 0.05 then they face imprisonment. If a fatality happened then they face a minimum of 3 years imprisonment, or 6 months if it was a serious injury. Also having tested positive for blood alcohol content over 0.03 there is a fine of about $465-$2800.

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      • Active March 17, 2016 at 3:28 pm

        I think it should be O.00 BAL for driving motorized vehicles. Why allow any driver to drink any alcohol?

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        • Mao March 17, 2016 at 8:39 pm

          As someone who never drinks because all alcohol tastes foul, that sounds extreme.

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          • soren March 18, 2016 at 7:31 am

            It’s the law in a number of european nations. If any <b<detectable level of alcohol is measured via breathalyzer or blood toxicology the driver is charged with drunk driving.

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      • 9watts March 17, 2016 at 6:48 pm

        I’d vote for that kind of law here. I can already hear the howls of protest should a legislator propose such a law.

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    • Matthew B March 18, 2016 at 9:15 am

      In my country of origin, Australia, in all likelihood the driver would be facing jail time. Fleeing the scene of a motor vehicle collision, texting while driving and driving while having more than 0.05 bac are all very serious offenses, which when coupled with a pedestrian death add up to several years as a guest of Her Majesty. In Australia, this would likely be dealt with in a Magistrate’s court without a jury. A foolhardy defendant could opt to plead not guilty and go to trial in a higher court, but the outcome is likely to be a more serious conviction and a stiffer penalty. They have random breath testing in all parts of Australia and rigorously enforce the DUI laws, there is also zero public tolerance for drunk driving.

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  • are March 17, 2016 at 11:40 am

    i missed the part where the prosecutor explained why not hit and run

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    • Pete March 17, 2016 at 10:47 pm

      Probably the “first offense” rationale. Plus, prosecuting is so hard

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    • El Biciclero March 18, 2016 at 9:38 am

      The driver didn’t perceive a victim in the moment, so he could not possibly have been expected to stop and render aid…or look very hard.

      I wonder whether the discharge of a firearm resulting in an unintentional death a mile away would be so leniently handled.

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      • Adam H. March 18, 2016 at 9:40 am

        Ah, the old “I didn’t see him” defence! Works every time.

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  • PNP March 17, 2016 at 11:41 am

    Why do we pretend to care that people die on our roads?

    A friend of mine was killed when an unlicensed teenager drove his mother’s SUV over the top of her car. She was stopped at a traffic light. Her car was crushed so badly that it took rescuers 15 minutes just to get to her, and by then, it was too late.

    He got a ticket for driving without a license.

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  • Mike Quigley March 17, 2016 at 11:52 am

    (1) This guy has connections.
    (2) The DA doesn’t have the money and/or jail space to prosecute.
    (3) When you’re run down in one of these dead broke, timber dependent counties, you’re on your own.

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    • Russ R March 17, 2016 at 12:32 pm

      I think you’re onto something- the guy must have connections.
      Otherwise, I can’t quite wrap my mind around how this **** will get off scot-free w/ not even a fine, WTH?
      God, this disgusts me.
      And terrifies me.
      OF COURSE looking away from the road and hitting someone is a crime. How long did he look away? Oh, only a second.. says who? Oh, the perp? Well, gosh, he wouldn’t lie to save his own skin would he? (We know he’s of high moral fiber, since he fled the scene).

      And when are we going to get tough on hit-and-run perpetrators? It’s obviously better to flee than get hit w/ a DUI and the consequences seem pretty mild. Boy, this is gonna be great. 50% of the collisions in LA are hit-and-run.That’s bad when you’re in a car, but disastrous if you’re a cyclist.

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      • 9watts March 17, 2016 at 1:32 pm

        The sun was in my eyes, I didn’t see him, and now this. If this isn’t a free-for-all I don’t know what would be.
        I get the lack of intent, but so what? If I forget to put the car in gear when I park it in my driveway and my car runs over the neighbor’s kid on the sidewalk do we also just shrug? Why even pay DAs and police and judges and all the res of them if this is how we handle matters of life and death?

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    • buildwithjoe March 17, 2016 at 8:23 pm

      Pull the data and ping records from the phone or tower. He was very likely touching it and there is evidence if they care to file simple requests.

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    • Garcia March 18, 2016 at 10:20 am

      Corvallis is not “run down”, nor “timber dependent”. It has one of the highest levels of education in the state and is mainly driven by the university and agricultural business. Your other points may be valid, but just because a town isn’t Portland doesn’t make it Toledo.

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  • John Lascurettes March 17, 2016 at 12:02 pm

    The auto user admitted to drinking and looking down at his phone prior to the crash. Despite these facts, the Deputy DA Alex Olenick said the evidence wasn’t enough to prove the driver acted with criminal negligence.

    Confessed to the crime — THREE crimes (texting and drinking and hit-and-run)! And yet the DA says there’s not enough evidence? I … just … can’t …

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    • Gary B March 17, 2016 at 12:37 pm

      That’s not accurate. He admitted looking at his phone, not texting, and not by itself illegal. He admitted drinking, not being intoxicated, and not by itself illegal.

      I don’t at all disagree with your sentiment and wish he would be prosecuted, and could be successfully, but we should be clear that there was no confession (as stated in this summary; also I don’t know about the hit and run aspect, as it isn’t addressed here).

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      • John Lascurettes March 17, 2016 at 2:39 pm

        Thanks. Good points.

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      • wsbob March 17, 2016 at 7:04 pm

        “…That’s not accurate. He admitted looking at his phone, not texting, and not by itself illegal. He admitted drinking, not being intoxicated, and not by itself illegal. …” gary b

        Was he DUI at the time of the collision? One would guess the guy driving has some idea of whether he was DUI or not. What might people at the Elk’s Lodge know about whether the guy left that place drunk?

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  • Dan A March 17, 2016 at 12:03 pm

    Do you suppose hitting a cyclist sounds different than hitting a deer?

    Of course, if you’re only vaguely aware of your surroundings, it might not make a difference.

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    • Dan A March 18, 2016 at 9:22 am

      Nevermind, I didn’t catch that Sundstrom was walking rather than cycling.

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  • Stan March 17, 2016 at 12:05 pm

    Headline is confusing. Corvallis is in Benton County and across the Willamette River from where the hit and run occurred.

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    • Mao March 17, 2016 at 8:45 pm

      I’ve ridden on the east bound shoulder, it’s a 45mph speed limit that goes up to 55 and about half the people speed. It’s not very safe, but the west bound shoulder crosses on and off with a nice enough looking bike path.

      Really, my friends get worried when I take my bike out on game nights in town proper because of all the people that flood in and drink. Fun fact: Game night is when drinking rules are less enforced.

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  • gneiss March 17, 2016 at 12:14 pm

    The Corvallis DA is essentially saying that people walking or riding a bike on our roadways are contributing to their own deaths, just by being there. It’s a sickening view, but the response is for us to make are roads and cars safer, so that this kind of “ordinary activity” can’t kill. If looking at your phone while driving isn’t criminal, then it should be the fault of roadway designers and car manufactures and DA’s should be suing them accordingly just like for cigarette manufacturers.

    Killing people walking on our roads and streets shouldn’t be a “feature”.

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    • Bjorn March 17, 2016 at 1:10 pm

      This actually happened on the highway headed east from Corvallis in Linn County not Benton County. I think the Benton County DA might have charged the suspect.

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    • wsbob March 17, 2016 at 7:26 pm

      “The Corvallis DA is essentially saying that people walking or riding a bike on our roadways are contributing to their own deaths, just by being there. …” gneiss

      I don’t think he’s saying anything so general, but something he does make note of in his report, is that there was evidence the deceased was intoxicated at the time of the collision; I guess the reason being is that intoxicants aren’t able to leave the body of a person that’s not living, as they are able to in a person that is living. Subtly raising, it would seem, the a question of whether the drunk person walked into the road in front of an oncoming vehicle

      Innocent before proven guilty, but the story of the person driving, sounds suspicious, cooked up. He says he turned around and looked, but found nothing after thinking he may have hit something. The following morning, someone finds the deceased “… on the side of the highway. …”. There could be legitimate reasons a person truly looking for something at the side of the road, they thought they’d hit with their car…such as low light, bad weather…did not find anything. What were the reasons offered by this guy?

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      • Dan A March 18, 2016 at 8:08 am

        He didn’t see the cyclist before hitting him. He didn’t see the cyclist after hitting him.

        Why is this man allowed to drive a car?

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        • 9watts March 18, 2016 at 8:12 am

          Our friend from Beaverton thinks he knows….

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        • still riding after all that March 18, 2016 at 6:47 pm

          Pedestrian, not cyclist. Please go back and read the article, Dan.

          “hit and killed 34-year-old Shiloh Sundstrom while he was walking on the side of a road”

          Your sentiment is spot on, though. Not seeing, not looking, drinking alcohol before getting behind the wheel, playing with his phone, not stopping after hitting someone – the driver should be in jail, and the DA should be sentenced to jail with him.

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      • Tyler March 19, 2016 at 4:46 pm

        wsb,

        Good work uncovering that bit about the pedestrian being intoxicated. WOW. I did not know that. Makes the DA’s decision easier to understand.

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      • El Biciclero March 20, 2016 at 6:58 pm

        “…there was evidence the deceased was intoxicated at the time of the collision…”

        Where did you find this tidbit?

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  • Chris I March 17, 2016 at 12:21 pm

    Why are they protecting the driver’s identity? I thought this was public information? Has anyone filed a request for the driver’s name?

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  • RH March 17, 2016 at 12:25 pm

    I guess I better recheck my life insurance policy. Seems like my family would have no recourse against a driver if I was hit and killed while biking. Sshhheesh.

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    • B. Carfree March 17, 2016 at 11:06 pm

      Your family is so much nicer than mine. Sadly, mine knows exactly what the price of a life is. I actually pity the poor fool who strikes me down while I’m riding. That’s one of the reasons I take great care in how I ride as well as when and where.

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      • Dan A March 18, 2016 at 8:11 am

        Too bad the driver didn’t take great care in how he drove, or when and where. I guess the onus is on the cyclist, yeah?

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    • Tyler March 20, 2016 at 9:09 pm

      Life insurance should pay if you are killed while biking but there are some exceptions if the policy is less than 2 years old such as: the application asked if you rode a bike and you said no; or if they believe it was suicide or that you made some significant false statement on the application. Otherwise they will probably pay.

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  • rick March 17, 2016 at 12:30 pm

    sad

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  • Gary B March 17, 2016 at 12:43 pm

    Unfortunately the DA is probably right, the behavior wouldn’t be deemed a gross deviation from the standard of care. Especially considering the jurisdiction and community in question here.

    The thing is, the SOC is a community standard, decided by a jury, and it evolves. Thus, it’s important DAs attempt to push that evolution, and they can only do so by actually taking cases to trial and convincing a jury what the SOC should be for a driver. (That said, even in a friendly jurisdiction there’s a lot of strategy involved–bringing the right cases, to the right jury, in the right order to make incremental progress.)

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  • David March 17, 2016 at 12:47 pm

    Hopefully the civil suit will clean this guy out.

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    • 9watts March 17, 2016 at 1:34 pm

      Like with Frank Bohannon? I don’t think so. Is there even the prospect of a civil suit when the DA just shrugs like this? How does that work?

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      • Gary B March 18, 2016 at 9:00 am

        Absolutely there is! The two are unrelated (except that a criminal conviction often makes winning a civil case very easy). In a lawsuit the plaintiff merely needs to prove negligence by the defendant. Negligence is anything less than the “standard of care.” And it only needs to be proved “by a preponderance of the evidence” which is essentially “more likely than not.” The criminal charge here required “gross deviation from the standard of care,” proved “beyond a reasonable doubt.” It’s a MUCH taller order.

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        • J_R March 18, 2016 at 1:50 pm

          And now we have another DA essentially saying “there is no responsibility on the part of drivers to look where they are going.” The “standard of care” is being pushed lower and lower by every DA who declines to prosecute.

          The defense attorney in the civil case will quote the DA and remind the jury multiple times that there was no crime. How many jurors buy into the concept that since there wasn’t a crime there should also be no financial settlement?

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          • wsbob March 18, 2016 at 9:58 pm

            “And now we have another DA essentially saying “there is no responsibility on the part of drivers to look where they are going. …” J_R

            If you’re calling that your belief that it’s what the DA is saying…fine.

            The substance of Olenick’s statement does not add up to what you say you believe it does. His reasoning that people operating vehicles on the road do in fact routinely direct their attention away from the road, momentarily, was fair. He doesn’t say in any way, shape or form, about responsibility of people driving, as you have.

            What the DA has got to do, is based on the facts available to him, determine whether he’s got the grounds of a case that will withstand the scrutiny of judge and jury, proving to them that a crime has been committed. For whatever reason, at present, sufficient facts to make the case either don’t exist, or have yet to be discovered.

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    • RMHampel March 17, 2016 at 1:40 pm

      Civil suits won’t bring back the dead. The outcomes are rarely reported on. But changes in legislation resulting in public convictions of those guilty and ultimately, changes in driver behavior will lessen the liklihood of this happening again.

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  • Alan Love March 17, 2016 at 2:12 pm

    “The driver later told detectives that “he was over the fog-line in the moments after the crash, (but) it is unclear whether he had gone over the fog-line before the crash,” and there was no evidence to indicate whether he was off the road at the time of the crash, Olenick wrote.”

    The DA is correct in that it is impossible to maintain 100% attention on the road in front of you at all times, nor is that even ideal since it is a good idea to scan behind and to the sides on occasion, but the above statement proves negligence. If the driver was over the fog line, that distraction caused a loss of control of a 3000lb high speed projectile. You don’t leave the lane because you checked your mirror.

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    • Dan A March 18, 2016 at 8:13 am

      Right. If you can’t maintain your lane while driving (and I don’t care what you’re doing — checking your mirror, fiddling with your phone, adjusting the radio, etc) you should not be driving a motor vehicle.

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  • Adron @ Transit Sleuth March 17, 2016 at 2:15 pm

    W T F.

    This is horrible, the event, the DA’s lack of action and the lack of accountability for the ***** driver. At the very least she should make videos of her apologizing to everybody and that should be a campaign on distracted/drunk driving and the horrors of what motorists inflict on each other and us non-motorists. :-/

    Seriously sad that the DA/Police/etc don’t have the back of the victims, instead of the scurrying off without doing their jobs. It is, perplexing, yet I know somewhere in the mess is some legitimate excuse of “well if we prosecute em’ we’d need more people/money/less murderers” or some excuse.

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  • Rob Chapman March 17, 2016 at 2:17 pm

    It’s almost as if the Linn County DA is inviting vigilante justice from the victim’s family/friends. It’s better than no justice right?

    This is infuriating.

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  • Mark March 17, 2016 at 2:44 pm

    Whatever the statutes say or however they are interpreted, to believe that the near magnetic, addictive attractiveness of a smart phone is comparable to a map bears no resemblance to the reality that any of us who use those devices understands. They are not evil. I use one all the time, even to read this website. But, they are quite different than the map on my seat or the buttons on the car radio, not to mention the car mirrors. And, the cultural imperative to simply look at these devices every time they light up with a notice of a message cannot be underestimated.

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  • danny March 17, 2016 at 3:02 pm

    It seems to me that this ruling is tantamount to telling the public that people are perfectly free to text and drive with no fear of criminal prosecution if they happen to hit and kill or injure another road user as a result. I hope Sundstrom’s estate gets quality representation and files a huge civil claim.

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  • q March 17, 2016 at 3:12 pm

    Sometimes while driving, it’s safe to take your eyes off the road to glance at a map, grab a cheeseburger, etc. Other times it’s not, even for a split second. (Every good driver has even missed being able to make a lane change because conditions made it unsafe to take the time just to check a blind spot.) It’s a driver’s duty to know when it’s safe or not, and for how long. The fact this driver hit someone in front of him is proof he failed in that duty, and is therefore negligent. That’s my opinion.

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  • Ron March 17, 2016 at 3:21 pm

    Wow. No words. To call this an outrage does not do it justice. How can Olenick live with himself?

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  • bikeninja March 17, 2016 at 3:28 pm

    People have an innate sense of what is just and fair and what is not. Governments and their agents ( DA) who for whatever reason ignore this and fail to provide justice may get away with it for a short time. But eventually people will take justice in to their own hands. This is unfortunate, and not recommended but it is the natural outcome of such a policy. So if this goes on, and one day a negligent killer driver founds themselves a victem of an unfortunate accident the DA will only have themselves to blame.

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  • rachel b March 17, 2016 at 5:15 pm

    Just awful. Again. My heart goes out to Sundstrom’s friends and family.

    There’s just an omnipresent sense of futility in me anymore, living around here. So many issues I’m frustrated about, repeatedly witnessing the lack of appropriate, sensible response from police, officials, etc. But… being negligent (texting, drinking) and then “Oops, I killed someone” and escaping prosecution? That’s the pinnacle of crazy. I feel more and more crazy with each new unfathomable outcome (or lack). And helpless.

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  • Spiffy March 17, 2016 at 5:51 pm

    “My analysis is whether simply looking away from the road at his phone WITHOUT MAKING SURE IT’S CLEAR AHEAD is any different from looking in one’s blind spot, looking at a map, grabbing a cheeseburger, or turning momentarily for any other reason”

    the CAPS are the key part…

    would a reasonable person look away for a moment? yes…

    would a reasonable person look away for a moment without checking to make sure it’s going to be clear while they’re looking away? no…

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  • Tim March 17, 2016 at 7:18 pm

    Corvallis is not in Linn County and it was the Linn County DA. Some you know where to direct your complaints.

    Also start with your state representatives. They are responsible for increasing the speed limits and decreasing the penalties for illegal driving.

    Hit and run should carry penalties far harsher than drunk driving. If you hit someone and leave them to die, you can’t be charged with a crime. Disgraceful.

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  • buildwithjoe March 17, 2016 at 8:19 pm

    Democrats made Linn Co Republican Girod the Stare Senate Vice chair of Transportation. Nobody from Portland sits on any Oregon Transportation committee thanks to Speaker CRC Tina Kotek. https://drive.google.com/file/d/0B-_lkfRp66-0MGVsRGUxUjBvaGc/view?usp=docslist_api

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  • Nick March 17, 2016 at 10:23 pm

    This is outrageous. Is there anything we can do to change the DA’s decision? Blow it up in the news?

    Yeah, no name release? Betcha they’ve got connections.

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  • JeffS March 17, 2016 at 10:40 pm

    I have never been a fan of anti-phone laws.

    We should not have to prove that you were doing one thing or another to demonstrate negligence. The fact that you hit someone is usually evidence enough of a persons negligence.

    I don’t care if they were texting, adjusting the radio, putting on their makeup or simply daydreaming. It’s manslaughter regardless, or at least it should be.

    In reality, it’s nothing but an oops. Remember, if you have someone you want to murder, send them on a walk to the store and then run them over.

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    • Dan A March 18, 2016 at 8:27 am

      I may be alone in this, but I think if you’re a crappy driver when using the phone or after you’ve drinking or at night then you were almost certainly a crappy driver to begin with. I’d like to see a stop to crappy driving in general, without having to prove some other incidental activity in the car.

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  • Segue Fischlin March 17, 2016 at 11:27 pm

    It’s criminal negligence to injure someone and then to drive away rather than to stop and provide aid. If the victim is named, the killer must be named.

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  • K'Tesh March 17, 2016 at 11:47 pm

    Show of hands please… How many think that Linn County needs a new DA’s Office?

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  • Dave March 18, 2016 at 9:02 am

    Time for street justice, way past time.

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  • Chris L March 18, 2016 at 9:14 am

    The killer is not named?!?!?! There was clear negligence, yet they are hiding their name like an alleged sexual assault victim.

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    • Tyler March 20, 2016 at 9:12 pm

      There was no clear negligence. We don’t know many facts at all about this case at all. We can’t judge.

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      • 9watts March 20, 2016 at 9:14 pm

        “There was no clear negligence.”

        You don’t say. :-)

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  • Dave March 18, 2016 at 9:15 am

    Cyclist boycott of Linn County businesses, perhaps?

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  • Matthew B March 18, 2016 at 9:20 am

    My one consolation, and it is a poor one at that, is that the civil law may provide some justice where the criminal law won’t. Hopefully, one of the better plaintiff lawyers in this state will contact the victim’s family and sue that driver not only for every penny he currently has, but every penny he will ever have. I hope he ends up working very hard for the rest of his life to compensate Shiloh’s family.

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    • Tyler March 20, 2016 at 9:14 pm

      I don’t wish that on him if he is in fact not at fault, for example if this is a case of suicide by car. Do you wish bad things to happen to people who have done nothing wrong? You don’t know any facts of this case.

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      • 9watts March 20, 2016 at 9:16 pm

        Right. Suicide-by-car. Maybe all or most of the deaths from motor vehicles fall into this category? That would be so much easier.

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      • q March 20, 2016 at 9:25 pm

        omg now im like woa this da totally did know what he was doing because it could have been suicide by car or a temporary brain hijack by alians of the drivers brains

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  • Dan A March 18, 2016 at 9:28 am

    The Gazette-Times calls it a “hit-and-run accident”. #crashnotaccident

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  • El Biciclero March 18, 2016 at 10:14 am

    Just a few observations:

    First of all the irony and tragedy of someone who worked so hard for conservation being mowed down by a machine that pretty much embodies the opposite of conservation is just sad. By the accounts given in the Daily Yonder article, the loss of Mr. Sundstrom is a huge one.

    We MUST stop treating motor traffic as a “force of nature”. The way these cases are handled, it is as though we tell people, “hey, if you jump in a raging river and drown, don’t blame the river”. Analogies such as “swimming with the sharks” to describe walking or riding on our roads with motor traffic reinforce this notion. If we want to use a nature analogy, how about flipping it around to something like “clubbing baby seals” to describe careless drivers? We have to re-establish some standard of conscious responsibility for drivers, even when they do things unintentionally. The “standard of care” should never encompass actions that lead to someone’s death. I mean really, if death is the result of a reasonable “standard of care”, then that standard is subterranean.

    It would seem the only way to raise the “standard of care” to something that doesn’t include killing people would be to create some sense or standard of so-called “strict liability”. Not automatic guilt—I mean, I could jump in front of a car, or run a red light in front of cross traffic and give some poor driver no chance of avoiding me—but a very high threshold of proving with a “preponderance of the evidence” that there was no way to avoid a collision. Under this standard, things like “had a drink or two” (even if not over the legal limit), or “I looked down at my phone for a second” would weigh heavily against the driver.

    I don’t think we can ban all in-car activities, but what we can do is adopt an attitude that is the reverse of what we seem to have now, a new attitude where we say to drivers, “once you turn that key (or push that button, nowadays), you’re taking your chances and assuming all risk and liability for any damage, injury, or death you cause by mishandling your vehicle”. So go ahead and munch that cheeseburger, shave, put on makeup, fiddle with your radio and GPS, speed, don’t signal, fail to yield, drink your soda, have your brainhands-free phone conversations—but know that if you cause, or even become part of, a crash while you’re doing any of that, you’re done. Driver’s license gone at a minimum, jail time appropriate for the results of your actions at a max. Drive while your license is gone and lose your car forever.

    This notion that a driver should be exonerated because, “gosh, how could they have known something bad would happen? They can’t predict the future” needs to end. Drivers need to assume “something bad will happen” every time they drive anywhere. If I decide I want to juggle chainsaws, is there anything illegal about that (maybe, I don’t know)? But if I do it in a crowd and cut somebody’s arm off, is it just an “oops, sorry, Sir!” or will I be in big trouble? We just do not view driving as the extremely dangerous activity that it is. Driving needs to be thought of in the same way we think about flying aircraft or handling weapons.

    BTW, a car would be considered a “dangerous weapon”, not a “deadly weapon”, at least in the written legal definition. A “deadly” weapon is something created with the express purpose of being a weapon. A “dangerous” weapon is something created for another purpose, but that can be used as a weapon. Nevertheless, this is the attitude we need to take regarding driving; currently we treat cars like dishwashers or socket wrenches.

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    • are March 18, 2016 at 10:44 am

      “Driver’s license gone at a minimum, jail time appropriate for the results of your actions at a max. Drive while your license is gone and lose your car forever.”

      and this is where the focus has to be. we want people who cannot handle the responsibility of operating a car to just not do it.

      you can flip presumptions and burdens of proof on the civil side, but a lot of times the perp has no insurance and no money. and probably you can flip presumptions and burdens of proof on the administrative side — taking away licenses, etc.

      but you cannot really override thresholds of intention on the criminal side. but then, putting people in prison is not the object. the object is to create safer roads.

      what we need is a cultural shift, on at least the same scale as the cultural shift that put everyone in cars to begin with. where to begin.

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      • El Biciclero March 18, 2016 at 11:05 am

        “we want people who cannot handle the responsibility of operating a car to just not do it.”

        This is the distilled, spun-down nugget, right here. How indeed to define “cannot handle”, and how to prevent “doing it”? I don’t necessarily think we should throw people in jail for slip-ups that have bad consequences, but we must, must, must make sure that those kinds of slip-ups cannot have the same consequences ever again, at least for that person.

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    • 9watts March 18, 2016 at 11:07 am

      Are we still nominating comments of the week?
      Here’s my nomination!

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    • Dan A March 18, 2016 at 11:36 am

      “If I decide I want to juggle chainsaws, is there anything illegal about that (maybe, I don’t know)? But if I do it in a crowd and cut somebody’s arm off, is it just an “oops, sorry, Sir!” or will I be in big trouble?”

      I’m not sure. Was the person in the crowd wearing high-vis? I have seen some people in crowds walk around without a helmet on. Perhaps they had it coming.

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    • Tyler March 19, 2016 at 4:41 pm

      EB,

      I wish we had some details of this particular incident so we could analyze it better to find out what factors played a part other than driver error. For example, was the pedestrian IN the travel lane? Etc. The driver should be charged with hit and run in any event even if the pedestrian was partly or mostly to blame for being hit.

      One potential problem I see with your comment above is in this statement: “We just do not view driving as the extremely dangerous activity that it is.”

      The problem with it is that there IS a group of people who do not view walking or riding a bike in traffic as the extremely dangerous activity that it is. As we all know, many pedestrians and cyclists refuse to help make driving less dangerous to themselves using the simple, common sense technique of making themselves visible from a VERY LONG distance. Cars cover ground rapidly. At 55 mph, during a 3-second “glance” at a cell phone a car moves almost the length of a football field.

      As a cyclist it is your responsibility to yourself, your family, and to all motorists to be extremely visible for at least 1/2 mile both day and night. Is that the law? No.

      Do what you want. Fail to heed these tips, and you may pay with your life. Many have done exactly that.

      Take responsibility for your own safety to the greatest extent possible and stop trying to criminalize car drivers for being human and making mistakes.

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      • Dan A March 19, 2016 at 5:21 pm

        When did walking become dangerous? Until recent history, people walked for thousands of years without incident.

        Please stop normalizing traffic violence.

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        • 9watts March 19, 2016 at 7:43 pm

          Yes! Thank you for reinjecting some common sense here, Dan A.

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      • 9watts March 19, 2016 at 7:45 pm

        Tyler,
        I’m going to respectfully disagree with you. Oregon111 (an infrequent commenter here) used to supply a similar exhortation. The trouble with his (and your) logic is that for extra effort devoted to human visibility (why put that responsibility on the non-car-bound?) to have any salutary effect requires an attentive person-behind-the-wheel. We know that wasn’t the case here, and know that it is increasingly not the case in other tragic and avoidable crashes much like this one. At least to me your exhortation seems misplaced.

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        • Tyler March 20, 2016 at 3:11 pm

          9,
          You are wrong – fatally wrong. We know with 100% certainty that most drivers are inattentive at least part of the time. They are required by law to be inattentive part of the time because they are required to check their mirrors occasionally and when they do that they are not looking at the road ahead which is where a pedestrian or cyclist is most likely to be if they are moving forward.

          Thus, knowing that drivers are inattentive, it is incumbent upon the ped or cyclist to be so obvious that even an inattentive driver will see them long before they get to them. Then, even a casual glance in the direction of the pedestrian while day dreaming, eating a burger, adjusting the radio, etc will alert the vast majority of inattentive drivers that something is in or near the road ahead – but there will still be a few accidents – particularly if the driver is impaired.

          Cyclists (and peds) who believe, as you do, that the responsibility for seeing you on your itty bitty bike are responsible for many, perhaps most, motor vehicle/bike collisions.

          Per the photo on the story above, this accident occurred near an intersection. Intersections are known to be dangerous. It would be very easy to imagine many scenarios near an intersection where the driver could not have seen the pedestrian until the last second (perhaps that was the second he looked at his phone).

          Unfortunately, in this case, I have read few details of traffic at the time of the accident, damage to the car, location of the body, etc, etc, etc so I cannot say much about this case with any certainty. BUT it is possible that with more visible attire the pedestrian might still be alive today, however, I do not know what he was wearing so that is speculation.

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          • q March 20, 2016 at 3:28 pm

            Of course it’s common sense to be as visible as possible, and doing that may save your life. But that doesn’t take responsibility away from a driver. Just like leaving your keys in your car makes it more likely it’ll get stolen, but that doesn’t make the thief less guilty.

            I do a lot of standup paddleboarding, where being visible adds to my safety, but only–as others have said–if boaters are attentive. A couple years ago, a 40′ boat hit a large, visible island in the Willamette at high speed. The boat hit so fast and hard it launched itself entirely out of the water and landed mid-island. If that island had been me, no amount of lights, reflectors, whistles, etc. would have mattered. I think that’s the point others are making, that making yourself visible can help in some cases, but not others.

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            • 9watts March 20, 2016 at 9:34 pm

              “In fact, being out on the highway at night in dark, non-reflective attire does take away responsibility of the driver and puts the responsibility 100% on the ped or cyclist.”
              100%? Really.

              “And making yourself visible will not help in every case, but it will help in the vast majority of cases.”

              You are just making this up. Do you have any data to support your contention? The last few deaths-by-automobile that have been reported and discussed here on bikeportland have all included distracted or impaired or otherwise inadequately attentive persons piloting their autos. You may be trying to convince us here that the attire-of-the-mauled is oh-so-relevant to these situations, but I am aware of very little research to support this contention and quite a bit that suggests that clothing makes not a whit of difference to one’s chances of *not* being smashed.
              And since these cases revolve around drivers not looking ahead, let me suggest stopping in at http://www.distraction.gov/stats-research-laws/facts-and-statistics.html for a spell:
              “At any given daylight moment across America, approximately 660,000 drivers are using cell phones or manipulating electronic devices while driving, a number that has held steady since 2010. ”

              “A 2015 Erie Insurance distracted driving survey reported that drivers do all sorts of dangerous things behind the wheel including brushing teeth and changing clothes. The survey also found that one-third of drivers admitted to texting while driving, and three-quarters saying they’ve seen others do it.”

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            • q March 20, 2016 at 9:35 pm

              No, actually. It might be mostly true, if the driver was paying attention, and the victim had been walking down the middle of the lane around a turn. It definitely wouldn’t be true if the driver had his head down for several seconds looking at his phone and veered out of the lane and hit the victim over on the shoulder of the road. What I and others are telling you is that if the driver is inattentive enough, they won’t see someone no matter what they’re wearing.

              Just think how many cyclists and pedestrians are killed in broad daylight in perfect driving conditions by careless drivers.

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              • Tyler March 21, 2016 at 2:26 pm

                9 and q,

                Your attitudes will likely result in an unpleasant result in the not too distant future. What kind of flowers should we bring when it happens?

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          • Dan A March 20, 2016 at 3:32 pm

            So much cheaper and easier to just blame pedestrians for not being lit up like a casino and staying out of the way of cars. Why haven’t we been doing this all along? Oh right, we HAVE. How’s that working out for us?

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          • 9watts March 20, 2016 at 4:35 pm

            “Intersections are known to be dangerous.”

            Now why are intersections dangerous, I wonder? Were they dangerous before the widespread use of the motorcar?

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          • soren March 21, 2016 at 9:44 am

            Cyclists (and peds) who believe, as you do, that the responsibility for seeing you on your itty bitty bike are responsible for many, perhaps most, motor vehicle/bike collisions.

            People who drive slowly and attentively can virtually eliminate the risk of hitting, injuring, maiming, or killing their neighbor, friend, pet, or family member. In fact, I am certain that even Tyler is capable of driving safely!

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          • q March 21, 2016 at 3:45 pm

            You are not required by law to be inattentive–that’s silly. Being required to check your mirror or blindspots doesn’t absolve you from only doing that when it’s safe. There is nothing inherently unsafe or inattentive about taking your eyes off the road momentarily if you scan ahead appropriately first–it happens millions of times every day.

            If you hit something that was ahead of you before you took your eyes off the road, it’s your fault for choosing to look away when it wasn’t safe.

            There are a few exceptions–say someone swerves suddenly in front of you– but not many. If you rear-end another car, it’s your fault, even if they stopped suddenly, because the law views the fact that you hit them as proof you were going too fast or following too closely.

            Saying the fact that driving requires you to occasionally take your eyes off the road means you’re absolved from having to use any judgement about when you do that is like saying speed limits absolve you from needing to use judgement about what a safe speed is in a given situation.

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      • Pete March 19, 2016 at 10:04 pm

        Nearly as many pedestrian fatalities down in San Jose as murders in Oakland in 2015, and more in 2016 so far, and we say guns are dangerous?

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        • Tyler March 20, 2016 at 3:16 pm

          Guns are not dangerous in the hands of law abiding citizens who exercise reasonable care with them. Give guns to children, criminals, drunks, etc and that person can be very dangerous to other people, but it is the person who is dangerous – guns are not dangerous – they are inanimate objects incapable of doing anything on their own.

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          • 9watts March 20, 2016 at 4:37 pm

            “Guns are not dangerous in the hands of law abiding citizens who exercise reasonable care with them.”

            Right. Just like pencils and potatoes and prams. They only become dangerous once the wrong people get their hands on them.

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            • Tyler March 20, 2016 at 9:19 pm

              Not only are guns not dangerous but they can protect innocent people from criminals who want to harm them. They are tools.

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              • 9watts March 20, 2016 at 9:21 pm

                “They are tools.”

                Right. Like wheelbarrows and rakes and screw drivers.

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          • Pete March 21, 2016 at 8:42 am

            Agreed, but far more dangerous people own cars than guns, and only one of those inanimate objects is generally deemed as deadly enough to be the subject of Congressional debates.

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      • El Biciclero March 20, 2016 at 5:22 pm

        As they say in the comics, * sigh *.

        “The problem with it is that there IS a group of people who do not view walking or riding a bike in traffic as the extremely dangerous activity that it is.”

        This is exactly the “force of nature” concept I am repudiating. Sure, we might say “mountaineering is dangerous”, or “whitewater kayaking is dangerous”, “space travel is dangerous”, etc. In those situations, we truly are pitting ourselves against a cold, hard, unconscious set of forces that will act with consistent indifference toward all comers and cannot be controlled or held responsible for the results.

        The kind of “danger” I am talking about when I say “driving is dangerous”, is the kind of danger I would subject others to by consciously deciding to do something that could cause other people harm. This is why comparisons to gun use are often made here, because as a society we view [irresponsible] gun use as gravely dangerous. Irresponsible car use is also extremely dangerous, but almost no one views it that way. If I make a conscious choice to carry a weapon, is it ethical for me to then expect everyone else to wear bullet-resistant apparel and watch out for me in case I misuse it? Or would I, as the one deciding to introduce the true danger into my surroundings, be expected to handle it with extreme care to avoid shooting someone? In this sense of danger posed, walking and bicycling are so negligibly “dangerous” as to not even count.

        “As we all know, many pedestrians and cyclists refuse to help make driving less dangerous to themselves using the simple, common sense technique of making themselves visible from a VERY LONG distance. Cars cover ground rapidly. At 55 mph, during a 3-second “glance” at a cell phone a car moves almost the length of a football field.”

        This is an excellent argument for asking drivers to slow down and not glance at cell phones; why must we impose dubious requirements on potential victims, rather than ask those with the lethal machinery to take it down a notch?

        “As a cyclist it is your responsibility to yourself, your family, and to all motorists to be extremely visible for at least 1/2 mile both day and night.”

        I’m not sure what I might do to “be extremely visible” during daylight, but there is absolutely nothing I can do as a non-motorist to force a driver to fulfill their own responsibility to watch the frickin’ road. If I could reach into a car and rotate a driver’s eyeballs to look in my direction, I would, but I can’t—it is 100% a driver’s duty to see where they are going, not “overdrive” their headlights, and pay full attention.

        “Is that the law? No.”

        “There is no law against drinking and driving if you are not impaired. For example, drinking a beer while eating dinner over a time period of one hour, would for many (but not all) people not be a problem – they’d test ‘not impaired’, and would be legal.”

        It is interesting that you would argue in favor of pedestrians and bicyclists going above and beyond the law in making themselves visible, while also arguing in favor of impaired driving, as long as it isn’t technically impaired according to local law (the law very well might be different in a different part of the world, so who’s right?). This is a double standard that we must stop applying: drivers are given every excuse and the benefit of every doubt, while pedestrians and bicyclists are held to an impossible standard of 100% perfection going far beyond what the law requires.

        “…stop trying to criminalize car drivers for being human and making mistakes.”

        Mistakes are one thing, mistakes that kill other people are something different. If you want, we don’t have to “criminalize” anything, but we also don’t have to guarantee the driving privilege to all and sundry regardless of ability to handle it responsibly or safely.

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        • 9watts March 21, 2016 at 7:43 am

          Jonathan,
          what do you think about putting these comments by Mr. El Biciclero into a guest post? To my ears at least they hit all the right notes, make some very astute points, and seem like they deserve an even wider audience than they are likely to get, buried as they are among 140 other comments. I should just retire and let him speak for me. :-)

          Thanks

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  • Matthew B March 18, 2016 at 12:48 pm

    Negligence in driving, like professional negligence on the part of an attorney, CPA, medical practitioner etc., comes about, principally due to a poor state of mind and poor planning. A conscientious driver will ensure that their motor vehicle is properly maintained, and that they can operate it safely under the conditions presented. So that means, don’t drink and drive (the slogan in use in Australia at the moment is “If you drink and drive you’re a bloody idiot”, don’t speed, be attentive to other road users, focus on driving. If you need to respond to an e-mail or text message, pull over. Likewise, if you need to eat, pull over or eat in establishment where you bought the food. I wonder if DA Olenick is viewing this driver’s behavior through the lens of a careful driver, the standards established by the Oregon legislature, or his own driving practices.

    It is incumbent on all road users to develop safe driving, riding and walking habits to ensure that you do not present a hazard to other road users.

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    • Tyler March 20, 2016 at 9:27 pm

      MB said: “It is incumbent on all road users to develop safe driving, riding and walking habits to ensure that you do not present a hazard to other road users.”

      This is exactly right and one habit that is vital to safe cycling and walking by roads is to be very visible. If you are wearing lots of high viz yellow or orange, multiple flashing lights, and reflective gear, then when the motorist says “I didn’t see him” the policeman is going to have a problem with that.

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      • El Biciclero March 21, 2016 at 10:01 am

        Yet to say, “I didn’t see him while I was looking down at my phone” is no problem?

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      • Pete March 21, 2016 at 12:10 pm

        “…when the motorist says “I didn’t see him” the policeman is going to have a problem with that.”

        Prove it. My neighbor was wearing hi-viz gear in broad daylight when a texting driver swerved off the road and killed him – then ran. Even with the hit and run and the witnesses who followed and confronted her testifying to her negligent behavior, she paid a minimal fine and never lost her driving privileges for even a week.

        By your reasoning, people who drive black cars at night should also be found at fault for any crashes they get into.

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  • q March 18, 2016 at 1:48 pm

    I think the standard of care reasonable people use is that they don’t do things that result in them running over people. That’s where the DA should have started, then worked backwards to the details.

    If you’re overweight and want to weigh less, your doctor or trainer doesn’t just check to see if you’re eating or exercising in amounts typical for others in your age or gender group. He or she already knows from the result (the fact that you’re overweight) that whatever you’ve been doing wasn’t good enough. They don’t say, “Well, you’re eating and exercising similarly to others like you, so apparently you’re not overweight”.

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  • Gasper Johnson March 18, 2016 at 2:27 pm

    I also want to call out the DA. These are serious questions that deserve an answer.

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  • Tyler March 18, 2016 at 10:24 pm

    Were any details of the accident ever published, or were they not known except for the words from the motorist?

    Was the pedestrian walking in the same direction of traffic, and not against traffic as recommended?

    Matthew above made the case for “no prosecution” on criminal charges when he said: ” If you need to respond to an e-mail or text message, pull over.” Matthew assumes that you know you have an email or text message, and that such knowledge is normal, and most would agree that is in fact the case. Thus, it is no surprise that glancing at your phone does not come any where near to being “criminal negligence”, and thus, the outcome in this case is 100% expected.

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    • q March 18, 2016 at 10:49 pm

      Your phone dings so you know you have a message. Ideally, you pull over to see what the message is. Less ideally, you look at the screen AFTER you look around you to see if it’s safe to take your eyes off the road. That’s the typical standard of care.

      Looking at the screen without bothering to check if it’s safe, or looking at the screen for so long you’ve either driven so far out of your lane or driven so far past the area you could see when you checked that you run over and kill someone, falls way short of the standard of care that reasonable drivers take.

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    • Tyler March 19, 2016 at 5:00 pm

      wsbob above said the pedestrian was intoxicated. Not good if that is true. Doesn’t mean it was his fault but it COULD mean it was his fault. With no witnesses would just have to examine the evidence such as drivers story, car damage, etc.

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  • Opus the Poet March 19, 2016 at 2:09 am

    What is so hard about this case? The driver admits to picking up the phone right before the wreck, and leaving the scene. And drinking alcohol before the wreck. There are at least two driving violations, maybe three if they can find out how much he had to drink and how fast, and how much time elapsed between “bottle and throttle” as pilots call it.

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    • Tyler March 19, 2016 at 4:01 pm

      There is no law against drinking and driving if you are not impaired. For example, drinking a beer while eating dinner over a time period of one hour, would for many (but not all) people not be a problem – they’d test “not impaired”, and would be legal. There is no “time limit” bottle to throttle in a car – probably different for a commercial vehicle however.

      The driver should be charged with hit and run since he did do that. The penalty for that in this case should be fairly severe since someone died.

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      • q March 19, 2016 at 4:14 pm

        Actually, I believe you can be charged with impaired driving even if you test under the limit (I could be wrong). In any case, I wonder if you can’t use the fact that someone drank against them when determining standard of care. Most people know that drinking starts impairing you with the first drink. While it may still be legal to drive, a reasonable person knows to be more careful when driving after a drink or two, because your reaction times are slowed.

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        • Tyler March 19, 2016 at 5:03 pm

          When you go to court, you get the letter of the law. I think you can have up to something like 0.02% alcohol and still be legal. Of course, you are correct that if you drink and drive you should know if you are impaired or not and if you are you should not drive.

          This case is complicated by the intoxication of the pedestrian (per wsbob comment above), etc which may have played a part in the DA’s decision.

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          • are March 23, 2016 at 9:30 pm

            the only circumstance in which intoxication of the victim could be even marginally relevant to the prosecutor’s decision would be if there was evidence the guy stumbled into the road, etc. but there can be no such evidence here, because nobody including the perpetrator himself saw it happen.

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  • LW March 19, 2016 at 6:38 am

    We get a lot of rear end collisions here while people are in their cars stopped at red lights. I was one victim. The woman who hit me must have been doing 40mph. I was stopped at a red light. I looked up just in time to see her smash into me in my rear view mirror. This is the third year I’m in recovery. The pain, time, money and problems for my family were all because she had to look down at the floor board to answer her cell phone. This nonsense of not prosecuting people for negligence while driving has got to change. It says convenience and motorized vehicles are more important than people’s lives.

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  • Dan A March 19, 2016 at 11:19 am

    Timely commercial.

    https://www.youtube.com/watch?v=kNPa9gS3FNk

    Thank goodness Allstate is protecting you from ‘mayhem’, otherwise known as ‘digging around for your phone instead of looking where you are going’. He’s not a crappy driver — it was mayhem’s fault!

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  • Jason March 19, 2016 at 12:30 pm

    I just sent an email to the Linn Co. DA:

    “Having just read that DA Olenick will file no charges against the admittedly distracted driver (who also admitted to drinking before he murdered someone with his car) I am of the mind that you are saying that anyone can get away with MURDER so long as it’s A) behind the wheel of a car and B) you just say, “Whoops! It was an accident! Oopsie!” A drunk, distracted driver KILLED someone and then DROVE AWAY and you won’t prosecute? Where is the justice? Why aren’t their laws protecting the vulnerable citizens? Why have we given away our right to stay alive, so that some drunk, irresponsible driver can keep driving? This is an outrage! Olenick should be fired!”

    Now I’m going to go buy a car and start running people over “on accident.”

    ______
    L•R•K

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  • Jason March 19, 2016 at 12:31 pm

    PS I’m obviously not going to buy a car or start running people over with said car that I will not be buying.

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