(Photo © Jonathan Maus)
The Deputy District Attorney for Multnomah County Chuck Sparks wants the community to know that upon further analysis, his office believes the injuries sustained by Steven Volz in a collision on July 31st in Gresham constitute “serious physical injury”.
In a story posted on September 4th, I reported that Gresham DA Ben O’Glasser had elected to not seek Reckless Driving charges against the motor vehicle operator in the case, Lance Waddy. I then asked O’Glasser if the Careless Driving charge came with the new Vulnerable Roadway Users portion of the statute (which carries much higher consequences).
O’Glasser’s answer was no, that because they felt Volz’s injuries did not rise to the level of “serious physical injury” as defined by Oregon law, the Vulnerable statute would not apply (“serious physical injury” is required to trigger the new law).
After that story ran, I was contacted by Deputy DA Sparks (who is not only O’Glasser’s boss but is also seen as something of an expert on bike-related criminal cases). Sparks wanted to make it clear that — while there won’t be a felony crime in this case either way (the Reckless charge is a traffic crime, Careless Driving is a traffic violation) — the DA’s office in fact does think that Volz’s injuries were serious.
“We were looking over the analysis and we wanted to correct the record in that we think there was serious physical injury in this case,” said Sparks via telephone last week. (He added that O’Glasser ran that opinion by him but he was focusing on the more important issue (for them) of whether or not the Reckless charge should stand.)
I reported that Volz only suffered a few broken bones as a result of being thrown nearly 140 feet in the rear-end collision. However, Sparks tells me that Volz actually broke 12 ribs (not the one I reported) and also had a C7 vertebral fracture. “Taken all together,” said Sparks, “there was serious physical injury.”
It’s important to note that the DA only deals with felony-level crimes criminal cases and their opinion on Volz’s injury level doesn’t impact their decision-making on the criminal Reckless Driving charge. That charge was dropped by the DA, because as I reported on September 4th, they felt there was not a chance to prove to a jury that Mr. Waddy’s actions rose to the level of recklessness needed by Oregon law.
I brought up the ongoing comments regarding this case to DA Sparks (some readers are still wondering why the Reckless charge was dropped). He said, “We look at every case carefully, we don’t look at a case and say, ‘hey we’d really like to prosecute this guy, let’s go after him’, we look at the facts.”
Sparks said the decision to not go further with the Reckless charge was based on, “the case law that supports the finding of recklessness that has been developed over the years.” According to Sparks, recklessness usually involves some level of intoxication or some “fairly extreme behavior” and a “conscious disregard” for one’s actions.
Sparks characterized Waddy’s actions as being “sort of inattentive” which he said is “a very common thing for drivers” that “happens all the time.”
Does this mean that driver Lance Waddy will now be eligible for the more serious Careless Driving with a Vulnerable Roadway User?
Unfortunately, even with the recognition by the Deputy DA that Volz did in fact suffer “serious physical injury”, Waddy pled “no contest” to the Careless Driving charge (without the Vulnerable user portion of the statute) on August 26th and therefore will not face the elevated consequences.
Thanks for reading.
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\”Sparks characterized Waddy’s actions as being “sort of inattentive” which he said is “a very common thing for drivers” that “happens all the time.”\”
He is right. And, it really seems like something should be done about that problem, maybe, I don\’t know, pass a law or something, that if you injure people while being \”sort of inattentive,\” that you\’d go to jail or something….
Matthew Denton,
word.
Could someone please write – and pass – some traffic laws with real consequences?
sounds like they\’re concerned that if they prosecute this guy for running over a cyclist they\’ll set a precedent for having to prosecute any \”sort of inattentive\” motorist who\’s fishing around for a CD on the floor or texting a friend or doing their nails while sitting behind the wheel of a speeding car and sort of accidently runs over a cyclist. while I appreciate that the DA has to work with the laws as they exist I\’d rather they pushed to set a precedent that would send a message to all \”sort of inattentive\” that their behavior has serious consequences. And maybe make that \”very common thing for drivers\” less common.
the reality here is that there is a traffic law with some real consequences … the Vulnerable Roadway Users law which was passed last year.
that law carries an enhanced consequence and would actually be more severe of a charge than plea\’d down Reckless Driving charge.
The problem with that law is perfectly evidenced in this case. Waddy should have been charged initially with the VRU statute but he was not. Once he pled to the charge, that\’s it.. no one can go back and charge him with the Vulnerable portion of the statute.
the real question here is… why was Waddy not charged with Vulnerable? If he was charged he would have been found guilty of it.
i hope to look into this more and perhaps do a follow-up.
The reality is that the Mult. County District Attorney\’s Office works with a limited amount of resources. These gals and guys do the hard work day in and day out trying to protect society from some really bad people. I know how hard that they work, I was once a defense attorney. Chuck Sparks is an experienced, honest, dispassionate guy and as fair as they come. He\’s also a tough-as-nails litigator. I personally would tend to trust his reasoning on a case like this, given the system that he\’s working within.
It is often said that your copyright or patent is only as good as your lawyer.
Perhaps we should extend that to also say that your Vulnerable Roadway User law is only as good as your DA, which apparently, in the case of Gresham DA Ben O’Glasser, is not so good.
Here\’s a question. Are there consequences when a DA commits such a flagrant screw-up or displays such basic incompetence?
Does that sound harsh? I don\’t think it is. I want to hear more than \”oops.\”
Let me tell you, I broke 4 ribs a year and a half ago, and that more or less incapacitated me for 8 weeks. It was incredibly serious.
The idea that 12 broken ribs and a C7 vertebral fracture was even up for debate is preposterous.
tonyt,
I don\’t the DA is the problem here. Remember, they had no jurisdiction over the injury part of this case. In retrospect, if O\’Glasser was more experienced, he probably would not have mentioned anything to me about the injury part of this case.
I would also be curious what the DA\’s \”basic incompetence\” is in this case?
also, I tried to make it clear in the story above that the reason Sparks contacted me was to share that he felt he made an error in judging the injury, but upon learning more about it, wanted to set the record straight.
again, i feel the big \”oops\” in this case is that Waddy was not officially charged with Careless with Vulnerable… and that charge would come from the police bureau, not from the DA (since it\’s a traffic violation, not a crime).
Wow. Just wow. Lawyers chime in, please. Experts needed.
Point taken Jonathan, thanks for the clarification. And some apologies to the DAs then.
Much remains unclear to me:
Jonathan (#8) says that the enhanced traffic violation \”careless driving … contributing to the serious physical injury or death of a vulnerable roadway user\” would have to be charged by the PPB, not the DA.
This is seemingly supported by the law, which says, \”The police officer issuing the citation for an offense under this section shall note on the citation if the cited offense contributed to the serious physical injury or death of a vulnerable user of a public way.\” ORS 811.135(6).
If it\’s the PPB\’s job to do this, then why is O\’Glasser evaluating whether the injury meets the requirement of the law? Same question for Sparks. For the purpose of considering the reckless driving charge?
If it\’s the PPB\’s job to do this, then how can a police officer reasonably be expected to make such a determination?
To be found liable here, a court must determine \”that the commission of the offense … contributed to the serious injury or death of a vulnerable user of a public way…\” ORS 811.135(3).
Seems to me this requires the officer to wait for a full report of the victim\’s injuries from a physician, which requires a follow-up several days after the collision, unless it\’s obvious that probable cause exists for \”serious injury\” at the scene. As this case tells us, even when there are serious injuries, it\’s not always known right away. So detailed follow-up will often be required. This is a big burden to place on the PPB. And it reflects a poorly drafted law.
And is there some rule that says you cannot amend a citation complaint? Couldn\’t the officer issue a citation complaint for careless driving and then go back and amend the complaint if it\’s later determined that there is probable cause to believe the injury was \”serious\” within the meaning of the statute? (Not here, I know, but in other cases?)
Are there any PPB guidelines that help officers decide when to issue the enhanced citation?
Frankly, the non-lawyer public should really not care about these details. Somebody screwed this up, because the intention of the Legislature was that this action be subjected to the penalties it prescribed. And now that\’s evidently not going to happen. If you care, please demand accountability. These people are your employees.
So if I get hit by a car and the police don\’t cite, I can take the driver to court and get him/her cited on my own, correct? That\’s happened a couple of times for other people. a.O., you worked on one of those cases.
So if the cops didn\’t cite the driver under the VRU law, why couldn\’t the DA do what I am essentially empowered to do?
As a.O. said, someone screwed this one up.
Sparks characterized Waddy’s actions as being “sort of inattentive” which he said is “a very common thing for drivers” that “happens all the time.”
WTF is wrong with these people?????
Isn\’t Chuck Sparks the same guy who also declined to prosecute the drivers involved in the cyclist fatalities last October?
Again, WTF is wrong with these people?????
Tony, the citizen-initiated citation law only applies of the police have not issued a citation. In this case, the PPB already issued one, so no citizen can issue a citation here.
Again, if you care that someone can literally break someone else\’s back and get away without being charged with a crime or even paying a fine of more than a couple hundred dollars solely because they were using a motor vehicle when they were doing it, please demand accountability. It\’s time to change the law in Oregon and perhaps in Portland.
Glad to read DA Sparks explaining with a little more clarity the line of thinking his office followed in determining that the mental state for criminal reckless driving could not be found for the actions of Lance Waddy in the collision he was responsible for.
Jonathan, hope you can get a little closer to the answer to the question you raised: \”(T)he real question here is… why was Waddy not charged with Vulnerable? If he was charged he would have been found guilty of it.\” comment #5
a.O.\’s line of thinking in comment #11 goes through some of the same questions I had. Maybe the writers of the VRU law didn\’t think through the law they wrote thoroughly enough to anticipate this particular scenario. The law should definitely be corrected so this kind of loophole doesn\’t let another “sort of inattentive driver”(DA Sparks)doesn\’t get of the hook when they mess up someone really bad.
I think you\’ll all get the idea, but just in case, I\’ll correct my last sentence (sorry to junk up the thread):
\”The law should definitely be corrected so this kind of loophole doesn\’t let another “sort of inattentive driver”(phrase: thanks DA Sparks…)get off the hook when they mess up someone really bad.
\”If it\’s the PPB\’s job to do this, then why is O\’Glasser evaluating whether the injury meets the requirement of the law?\”
a.O.,
I wouldn\’t say O\’Glasser was \”evaluating\” the injury part of this case. In retrospect, I think he would admit that his mistake was in saying anything to me about the injury level — because like I\’ve said, that shouldn\’t have played a role at all in the DA\’s analysis.
The only thing the DA was technically evaluating was the Reckless driving charge, and the injury level had nothing to do with that.
\”As this case tells us, even when there are serious injuries, it\’s not always known right away.\”
Of course, but I would like to see the benefit of the doubt given to the vulnerable user in all cases… and clearly, when someone is thrown 140 feet and is carted away with serious injuries, I\’d think that should get the benefit of the doubt.
So, the big thing is why wasn\’t the Vulnerable cite given? I know from riding along with traffic division officers that all their cites are done electronically. As they choose the various ORSs that were violated, the fields become populated with various subsections that they can then choose from to list more detailed charges.
My hunch (still need to confirm) is that because the Vulnerable Roadway User subsection is still new (just passed legislature in 2007), that it does not currently show up automatically when an officer chooses \”careless driving\” on their e-ticket machines.
So, the officer would have to be savvy of the new law and then write it in themselves… and I don\’t expect every officer to be aware of every subsection of every new law. It will take some time and training for them to learn and understand when to write-in the vulnerable subsection… or better yet, they need to get that subsection inputted into their electronic filing systems.
expect a follow up on this soon.
cops are smarter that you think, they just like to act dumb
Is not an accident caused by a driver who was “sort of inattentive\” equal to an accident caused by a driver having a “conscious disregard” for the safety of everyone around them?
My sources say Yes.
this case stinks… it\’s sad that we have a law to help deal with this inattentive driver behavior and it\’s not being implemented..
From #18:
I wouldn\’t say O\’Glasser was \”evaluating\” the injury part of this case.
OK, but Sparks was, right? You wrote:
Sparks wanted to make it clear that … the DA’s office in fact does think that Volz’s injuries were serious.
And then you quoted Sparks as saying:
“We were looking over the analysis and we wanted to correct the record in that we think there was serious physical injury in this case[.]”
I\’m not trying to argue with you here, but it seems as though Sparks is saying he was evaluating the injury part of the case. He just made a public statement about a legal determination. Again, why?
And also from #18:
…I would like to see the benefit of the doubt given to the vulnerable user in all cases…
But is this the way it works? If the officer writes the citation complaint as an instance of careless driving that caused a serious injury to a vulnerable roadway user and the court later finds that the injuries don\’t meet the ridiculously high legal standard, do you lose *any* citation for careless driving? Or can it be reduced to \”regular\” careless driving?
It seems to me that\’s something we don\’t know. At least I don\’t. The DA folks probably do. Ginsberg does, no doubt.
And finally, to the bottom line:
My hunch … is that because the Vulnerable Roadway User subsection … does not currently show up automatically when an officer chooses \”careless driving\” on their e-ticket machines…
That\’s the sort of thing I was thinking. Be interested to know if this is the case.
…I don\’t expect every officer to be aware of every subsection of every new law.
Well, there has to be some accountability in government somewhere. IMHO, we\’ve gotten far too used to that sort of thing (see FEMA). I don\’t think it\’s too much to ask for you to follow new traffic laws if your job is to enforce traffic laws. It\’s not like it\’s a surprise – the Legislature does it every two years.
But the officers work primarily within the system they\’re given, and it is the Bureau\’s job to make their systems work with the laws. I don\’t mean to make excuses for the PPB\’s administration, but if you\’ve been following the news lately you know they\’ve got far bigger problems than this.
I feel bad for people caught in these situations – most obviously Volz – but there has to be a point where reasonable citizens demand that we get the performance we pay for and deserve. The buck has to stop somewhere, right?
\”Waddy pled “no contest” to the Careless Driving charge (without the Vulnerable user portion of the statute) on August 26th and therefore will not face the elevated consequences.\”
Well, isn\’t that just lovely… We can\’t go after the guy because he pleaded to a lesser charge? Perhaps in cases like this, it WOULD have been better if the police had waited to issue the citation.
Catch 22
Would the status of Volz\’s injuries have had any bearing on a case the DA\’s office might have brought against Waddy if they\’d found that Waddy\’s mental state met the criteria for \’reckless driving\’?
Bob, the reckless driving misdemeanor (ORS 811.140) does not require serious injury. It only requires that you \”recklessly\” operate your vehicle \”in a manner that endangers the safety of persons or property.\”
Jonathan, there seems to be some confusion about reckless driving. Above, you say that it is a felony, but in your original 9/4 story you say it is a misdemeanor.
\”Jonathan, there seems to be some confusion about reckless driving. Above, you say that it is a felony, but in your original 9/4 story you say it is a misdemeanor.\”
sorry. Reckless is a midemeanor crime. will correct the story.
Yes, I\’m confused. From reading the articles on this weblog, I thought \’reckless driving\’ was a felony charge, which was needed in order for the DA to bring a case against Waddy.
\”It’s important to note that the DA only deals with felony-level crimes and their opinion on the injury level in this case doesn’t impact their decision-making on the criminal Reckless Driving charge.\” Jonathan Maus/editor
i apologize.. this legal reporting is tough because it is confusing and somewhat complicated.
unless I am still mistaken, I should have written that the DA only deals with criminal cases. crimes can be misdemeanors or felonies.
if i\’m wrong on that I\’m sure i\’ll hear about it soon and will correct if necessary.
i will make the correction to the story above.
Jonathan, you are correct that the DA only deals with criminal cases and not traffic violations. I think the story is correct now.
And ORS 811.140 doesn\’t say anything about causing injury as an element of reckless driving. So why is Sparks telling us: \”We were looking over the analysis and we wanted to correct the record in that we think there was serious physical injury in this case\”?
a.O
it is entirely possible that Mr. Sparks was looking into the injury level as a matter of curiosity and interest in making sure the correct designation was found (especially after I made public a comment about the injury level by one of his DAs) … and that he was not evaluating it as part of his duties as per this specific case.
You guys can split hairs about misdemeanors or felonies. And about levels of personal injury. Very lawyerly.
But this whole thing stinks and I feel powerless to change the status quo on my own.
Sparks characterized Waddy’s actions as being “sort of inattentive” which he said is “a very common thing for drivers” that “happens all the time.”
Why is our community accepting statements like this? He is saying that it is acceptable to run over people, because it is common for people to not pay attention while driving.
wtf. WTF!
This needs fixing on many levels.
\”Sort of innattentive\”? Is that \”sort of\” in the sense that Michael Phelps is \”sort of a good swimmer\”?
Or is it \”sort of\” a legal definition? or was the victim thrown \”sort of\” 140\’? Or even \”sort of\” broke 12 ribs, etc.?
Your edits to the text are right on, Jonathan. Very thoughtful commentary here. I\’m sorry that I\’m not a traffic officer and can\’t immediately say how those electronic ticket things work. I will try to find out, though.
Brian, Atbman, et al., I\’d like to call your attention to my last paragraph @ #11: I agree that these are details largely unimportant for those who simply seek justice.
The DA(s) is certainly correct that it is not a slam-dunk to get a conviction for reckless driving on the facts here as we know them. And, quoting from the article above, \”Sparks said the decision to not go further with the Reckless charge was based on, \’the case law that supports the finding of recklessness that has been developed over the years.\’\”
But apparently Sparks is not going to tell us (and I don\’t know if Jonathan asked) why they\’re so sure they cannot get a conviction here if they were able to get a conviction in the case of State v. Smith, 184 Or. App. 118 (2002).
In that case, the DA prosecuted a skateboarder for running into a pedestrian in a crosswalk. The published opinion doesn\’t include many more facts than that, but it\’s difficult to imagine how the skateboarder – who was convicted of reckless driving – was anything other than \”sort of inattentive\” in running into the pedestrian. Although this conviction was overturned, it was *not* on the basis that the defendant did not meet the \”reckless\” standard for his mental state.
That\’s something I really wish Sparks would also \”set the record straight\” on.
But, if anything is clear here it\’s that the Multnomah County DA is not going to prosecute motorists for reckless driving when they seriously injure cyclists because they were consciously disregarding the duty to be attentive while driving two tons of metal around our public streets.
So, we\’re left with legal reform. Let the BTA and your elected leaders know we need legal reform. Not only to enhance penalties for this behavior but to actually carry out the will of the People and charge careless drivers with the traffic violation that the Legislature intended they be charged with when they seriously injure vulnerable roadway users.
What I see here is that Mult Co and other DA offices as well as Police agencies need to educate themselves about the Vulnerable User (ORS 811.135)as a charging option. THe DA\’s issue crimes but VUlnerable USer is attached to Careless Driving which is a violation and can be issued by a traffic cop, De OR EVEN A CITIZEN under the Citizen VIolation Prosecution Statute (ORS 153.058)