TriMet tragedy, like Sparling case, shows gap in Oregon law

“This is precisely why the BTA, WPC [Willamette Pedestrian Coalition] and I are calling for a vehicular homicide law. There ought to be some higher level of consequence when you use a deadly weapon to kill someone, even if you didn’t do it on purpose.
— Ray Thomas, lawyer

Yesterday, Multnomah County Senior Deputy District Attorney Chuck Sparks released a report (PDF here) on the fatal TriMet bus crash that killed two people and injured three others while they walked across a street in downtown Portland on April 24th.

According to the report, the lead police investigator found that “the driver was entirely at fault in causing this crash,” but, after looking at all the evidence and hearing from 33 witnesses, the Grand Jury opted to not bring criminal charges against bus operator Sandy Day.

On the surface, this seems outrageous: Ms. Day drove her vehicle through a crosswalk without being able to see whether or not someone was in it (due to a blind spot). While Ms. Day clearly did not have criminal intentions, she violated a traffic law and her negligence to clear her blind spots resulted in the death of two people.

For those that remember the tragic case of Tracey Sparling — the young woman who was run over and killed in October 2007 by a man driving a cement truck (Timothy Wiles) while she sat on her bicycle in the bike lane — this all sounds very familiar.

Like the TriMet case, the Sparling case also involved a large commercial vehicle operator who turned into a vulnerable road user who was using the roadway legally. In both cases, blind spots prevented the vehicle operators from seeing what they were turning into. Also similar to the Sparling case, the TriMet bus operator will be cited for a traffic violation. In the Sparling case, the man operating the truck was cited for violation of ORS 811.050 (“failure to yield to rider on bicycle lane”) and in the TriMet case, the bus operator will be given five citations for violation of 801.608, Oregon’s “vulnerable user of a public way” statute.

Both of these cases ended with innocent road users being killed, but criminal charges were not brought against the motor vehicle operators for the same reasons in both situations.

Deputy DA Chuck Sparks.
(Photo © Jonathan Maus)

Yesterday I talked with DA Chuck Sparks who wrote the reports for both cases. He said, while the “dynamics” and context of the two crashes are obviously different, the basic legal facts are the same.

According to Oregon law, in order to find someone criminally negligent, the person must knowingly have taken an “unjustifiable risk… of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

In other words, the state will not prosecute someone unless evidence can prove beyond a reasonable doubt that the person acted with criminal negligence. What both of these cases illustrate is fatally hitting someone with a vehicle due to a blind spot does not rise to the high standard for criminal culpability.

If someone’s act does not rise the the high threshold required for gross negligence, the only other legal tool available is a misdemeanor traffic citation.

That gap is something Portland lawyer and Bicycle Transportation Alliance (BTA) legislative committee member Ray Thomas has been working to close. He told me yesterday that the DA ruling in the TriMet case is a perfect example of why he’s working on a new vehicular homicide law for Oregon:

“This is precisely why the BTA, WPC [Willamette Pedestrian Coalition] and I are calling for a vehicular homicide law. There ought to be some higher level of consequence when you use a deadly weapon to kill someone, even if you didn’t do it on purpose.”

Thomas feels that while the vulnerable user statute is helpful, it’s strength is limited because it only comes with civil — not criminal — penalties (not to mention violators can choose to opt out of the community service and other provisions by simply paying a $12,500 fine).

Thomas is working with the BTA and the WPC to craft a new vehicular homicide law for the 2011 legislative session that would create a culpability level below gross negligence in cases where a traffic violation is committed and a fatality is involved. Nine other states have already passed laws like this and Thomas feels Oregon should follow suit.

If Thomas’ proposal was already law in Oregon, Sandy Day and Timothy Wiles would be eligible to recieve a Class A Misdemeanor which could carry possible probation and up to one year in jail.

In a paper making his case for a tougher vehicular homicide law in Oregon, Thomas writes, “the status quo is unacceptable”:

“…few personal choices carry a greater potential for death and destruction to non-motorized road users than driving a several thousand pound motor vehicle at typical roadway speeds. While sending every driver who makes a fatal error of judgment to prison is not a realistic solution, the time has come to recognize that driving is a dangerous privilege and serious consequences should follow any time a needless death occurs because a driver failed to drive carefully.”

CORRECTION NOTE: This story contained a major reporting error as originally published. I wrote that the DA’s office had cleared Ms. Day of criminal negligence. That’s not at all what the report was about. It was a grand jury that reached the decision. I have modified the story to reflect this and I regret any confusion caused by the error.

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