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Carnage updates: Sun glare on 142nd, new crosswalks on SE 17th & more

Posted by on July 16th, 2013 at 5:36 pm

Should you be allowed to drive into this?
(Photo © J. Maus/BikePortland)

As many people seemed to notice, last week was particularly thick with serious on-street collisions. We’re continuing to track relevant parts of several cases. Here’s the latest on four of them.

No criminal charge from SE Division and 148th: As KOIN reported yesterday, the Multnomah County District Attorney’s office has declined to seek criminal penalties in the case of Neftali Cabrera-Escobar, 36, whose car struck and killed Brian Francis Kenny, 62, in April. The reason is that the DA determined that sun glare made it physically impossible for Cabrera-Escobar to have seen Kenny, and therefore that Cabrera-Escobar wouldn’t be found guilty of a crime.

He did receive a traffic citation for careless driving resulting in the death of a vulnerable road user and remains liable for civil penalties.

It may seem strange that it’s not illegal to drive a car at potentially fatal speed even when it’s physically impossible to see where you’re going. So we talked to Senior Deputy District Attorney Kirsten Snowden to discuss the law.

“In order for there to be charges in the case of serious physical injury or death, you have to have recklessness,” Snowden said. “When we typically file charges in connection with a case like that is when there’s alcohol or other intoxicants involved, or obviously when there’s very high speed … potentially even texting could rise to the level of gross negligence in certain circumstances. … In order to sustain a criminal charge, we have to prove that someone consciously disregarded an unjustifiable risk of serious injury or death.”

So what is and isn’t an “unjustifiable risk”? Snowden allows that there’s some room for interpretation, but said the only way to change practice in such situations would be to amend or add to Oregon’s laws governing manslaughter and criminally negligent homicide.

“While it’s a horrible tragedy, it just doesn’t rise to the level of a criminal charge,” she said.

Update 7/17: Snowden’s colleague Chuck Sparks calls to note that Cabrera-Escobar “was at fault,” shouldn’t have been driving as quickly as he was into the sun, and did receive a civil citation (added above).

Crosswalks coming to SE Milwaukie McLoughlin and 17th: Matthew Charles Casperson, 22, was still in critical condition Monday after being overtaken by a turning garbage truck as he rode across a wide crosswalk on his bike. ODOT and TriMet staff, however, say the intersection where he was injured will get a “substantial improvement for pedestrians and bicyclists” this November.

ODOT Transit and Active Transportation Liaison Jessica Horning contacted BikePortland Monday to spell out those planned changes, which will include pedestrian countdown timers for each crossing, “a new signal phasing so that the pedestrian crossing on McLoughlin no longer occurs at the same time as conflicting left turns from SE 17th Ave.” and crosswalks at all four crossings, instead of the three the intersection has now. (One of the four is currently marked as “closed” by a permanent barrier.)

You can see a sketch of the planned new paint markings here, and a diagram showing the new signalization plan (including the future light rail line along the northeast corner of the intersection) here.

Citation issued for Division and 122nd: Police issued a citation Monday to Hector Perez, 34, who collided with a van and suffered critical but not fatal injuries after heading on his bike through stopped traffic. Perez rolled in front of the van as it proceeded in Division’s left-turn lane, according to KOIN.

Benefit for Dave Collins: On a slightly happier note, co-workers of Dave Collins, who was injured last week while biking on Fremont, are organizing a benefit for his medical bills. “We will be meeting at Emmanuel Hospital at 4 p.m. to see Dave and then we’ll be leading a bike parade ride to the Lost & Found on North Gay,” writes Kyle Kautz, Collins’ colleague at PDX Pedicab. “There will be drink specials for Dave, and Brock from Adventure Galley will be spinning records.”

Get well soon, everyone.

NOTE: We love your comments and work hard to ensure they are welcoming of all perspectives. Disagreements are encouraged, but only if done with tact and respect. BikePortland is an inclusive company with no tolerance for discrimination or harassment including expressions of racism, sexism, homophobia, or xenophobia. If you see a mean or inappropriate comment, please contact us and we'll take a look at it right away. Also, if you comment frequently, please consider holding your thoughts so that others can step forward. Thank you — Jonathan

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Michael Andersen (News Editor)TMbusdriverwsbobspare_wheelPaul in the 'couve Recent comment authors
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dr2chase
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dr2chase

Nobody can predict that the sun will be low in the sky late in the day, or that it will be unusually bright. This decision makes perfect sense. I myself am often surprised to discover that water is wet.

Bjorn
Guest
Bjorn

Amending the law to make it easier to prosecute incidents like this criminally has proven very difficult and there is generally a hesitancy to prosecute without intoxication because DA’s feel that anytime you have an case where the defendants attorney can just say this could have happened to you to the jury that it will be very difficult to get a conviction especially where jail time is involved. That was the framework within which the Vulnerable Road Users law was written. The VRU was used in this case which I am very happy to see as after we pushed it through we have seen many officers be very hesitant to actually use it. If convicted this driver will have to choose between 200 hours of community service and drivers training, or a one year license suspension and $12,500 fine. There is a lot of evidence that drivers who are unlicensed due to a suspension or revocation are far more likely to be involved in injury crashes. I would like to see a criminal penalty for driving on a suspended license, because it seems to be the only way to get some people out from behind the wheel, but jails cost money and it has been hard to get bills through in Salem that will cost the state money.

Richard Allan
Guest
Richard Allan

“potentially even texting could rise to the level of gross negligence in certain circumstances”

“Potentially”? “Could”? “In certain circumstances”?

It frightens me that a prosecutor could believe there are circumstances in which texting while driving would NOT be gross negligence.

Kevin Wagoner
Guest
Kevin Wagoner

The news is bad but I’m really glad you are covering it to help keep the carnage in front….maybe our community will get more sick of it and as a result get more proactive in preventing it.

are
Guest

“a new signal phasing so that the pedestrian crossing on McLoughlin no longer occurs at the same time as conflicting left turns from SE 17th Ave.”

no comment

Matt
Guest
Matt

My mom taught me to look both ways before crossing the street…

Adam
Guest
Adam

How about a green bike box on SE 17th at 99E? Perhaps that would have prevented the trash truck right hook.

9watts
Guest
9watts

We seem to have no problem coughing up $4 billion of money we don’t have and were to have paid back with plenty of interest for generatyions for a freeway expansion, but ODOT is will to sweep up some crumbs for the pedestrians…. only after someone is nearly killed at a given location, or better yet, several some ones. It will be a good day when the CRC cabal has to hold a bake sale to fund their crazy nonsense.

Pat Franz
Guest

Was the driver’s windshield clean? How long had they been driving at speed, not being able to see? Did they slow down at all when they couldn’t see?

How high of a bar is “reckless”? Bloody high, apparently.

“consciously disregarded an unjustifiable risk of serious injury or death”- continuing to drive without being able to see what’s in front of you sure seems like a conscious decision. And if you don’t know who’s out there in front of you, that seems to me to be taking an unjustifiable risk with someone else’s life. How does this not compute?

Nick Falbo
Guest
Nick Falbo

I’m having difficulty accessing the google docs links (it attempts to connect to portlandafoot.com through google.) is it just me?

anon1q2w3e4r5t
Guest
anon1q2w3e4r5t

The first story of this post reminds me of a similar incident. A guy made a left turn on a street and hit a bicyclist from behind. I was riding ahead of the guy, so I didn’t witness him hit the bicyclist, though, I did hear the crash. The bicyclist was knocked down, but was not seriously injured. The guy was explaining to everyone at the scene that he didn’t see the bicyclist because of the glare of the sun. But, the irony was that while he was giving his explanation, I noticed he was wearing sunglasses.

jim
Guest
jim

Use the broadest polarized sunglasses you can along with a visor.

Donna
Guest
Donna

Well then, the DA hath spoken. If Cabrera-Escobar remains liable for civil penalties, guess that’s the only way to go for Brian Kenny’s family. Hope there’s something to sue for.

dan
Guest
dan

What about the Basic Rule? Why doesn’t that apply to Mr. Cabrera-Escobar?

All travel on public streets and highways is subject to the Basic Speed Rule. The Basic Speed Rule states that a motorist must drive at a speed that is reasonable and prudent at all times by considering other traffic, road and weather conditions, dangers at intersections and any other conditions that affect safety and speed. In other words, drivers are expected to use good judgment in selecting their speed.

JRB
Guest
JRB

I understand everybody’s outrage, but the DA is not saying that Cabrera-Escobar didn’t do anything wrong, just that his wrongful conduct did not rise to the level of criminal conduct. Wrongful conduct in and of itself does not constitute a crime, it must be coupled with a criminal mental state, usually that the person knowingly engaged in the wrongful conduct.

Only in crimes against persons is the standard lowered to recklessness and that is still a very difficult standard. It is actually more difficult than proving knowing conduct because you have to prove what is in someone’s head. Intent can usually be proven by the conduct itself. When somebody snatches a purse on the street, juries are allowed to infer that the snatcher meant to steal the purse from the act itself.

What is reckless conduct is subjective and its these gray areas in the law which keep lawyers like me employed and the courts in business. I think Bjorn hit the nail on the head when he said this would be a tough prosecution because jurors would likely empathize with the defendant. That being said, things considered reckless today were not considered reckless as little as 50 years ago. Standards evolve and the day may not be too far away where society as a whole decides that conduct like Mr. Carbera-Escobar’s is criminal.

Granpa
Guest
Granpa

Carnage starts with car. Coincidence?

Spiffy
Guest

what part about driving while you can’t see isn’t recklessness?

anybody that thinks it’s not recklessness to drive a motor-vehicle when you can’t see where you’re going should have their license revoked…

BobBobberson
Guest
BobBobberson

I am an east-coaster in a car-dependent area looking to move to Portland sometime in the future specifically because of the alt transportation options. Are you worried the “carnage in front” type articles might turn off others from pursuing (or seeing) biking as a valid option?

Does it give non-bike-friendly people the idea “see, biking is dangerous”? Or are those people probably not readers of this blog to begin with?

Thanks,

Jonathan Gordon
Guest
Jonathan Gordon

Amazing how the person driving into blinding sunlight and subsequently kills someone riding a bike receives no penalty, but the person who rides their bike into a van and puts themselves in the hospital receives a citation. He should have said the sun got in his eyes.

Paul in the 'couve
Guest
Paul in the 'couve

I think perhaps we should consider (re-consider) the fine differentiation in the current law between careless and reckless and negligent. I’m no lawyer, but it seems likely these terms and much of the general legal distinctions between them come from the English common law history and date back to a time long before automobiles. Few analogies come to mind other than firearms. I really can’t think of anything else that was in the hands of many common people 125 years ago that was similarly dangerous. But even that analogy totally fails to compare to the motor vehicle operator phenomena. We have a dangerous type of machinery that is routinely operated by 80% or more of people over 16 on a daily basis with these machines running up and down every public right of way in every city at all hours of day and many people spend hours per day in their cars. Every single one of these vehicles is a greater hazard to the public when in motion that anything we have ever seen with the possible exception of firearms, and even there until at least the 1860’s or so, firearms were not near as deadly as they are today.

What I think we are seeing is that the legal system simply can’t cope with applying the old common law terms and legal tradition to this circumstance. On the one hand there is intent and negligence, but the very activity of driving a motor vehicle AT ALL is more dangerous that anything anyone ever did in the middle of a city up until 1900. When the ordinary operation of a machine is so disproportionally dangerous to the public and yet completely ubiquitous the distinction between an “unavoidable accident” (a la: it was impossible to see him), careless driving and negligent homicide is pretty much arbitrary.

What we see is the distinction in practice is made based on information that has little to do with the actual circumstances and essentially boils down to if you aren’t DUI and you don’t leave the scene then at worst you might get a careless driving ticket.

I propose cycling advocates work on some new legal definitions and attempt to pass them in the states – OR and WA for starters.

spare_wheel
Guest
spare_wheel

Slowing the speed of these urban freeways would help motorists stop treating these intersections like highway ramps. When I cycle in the 35-45 mph Portland periphery I often see motorists roll quickly through intersections without even a glance at the crosswalk. I really hope that PBOT and the city of portland begin to aggressively challenge ODOT’s dangerous urban speed limits.

Organic Brian
Guest
Organic Brian

Another wreck yesterday: white SUV at NE Multnomah & 15th, on 15th a few feet from the intersection, mangled bike under SUV. I saw a very road-rashed and apparently angry guy in cycling tights, standing wordlessly with a woman in an expensive dress who appeared to be occasionally crying. It looked like the SUV had turned either left or right from Multnomah, crossing the path of the cyclist in the Multnomah bike lane. There were I think 3 police cars at the scene.

Doug Klotz
Guest
Doug Klotz

17th and McLoughlin.

I’m glad to hear that ODOT will put the left turns in a separate phase from the ped crossings. I’m surprised they’re doing that.

That said, it’s still a very wide intersection. I wonder if a median island in McLoughlin couldn’t have been acheived by sliding the north curb line a little further north east of 17th. It looks like there’s adequate room between the sidewalk and the light rail tracks. Further east of there the LRT tracks are climbing a grade, but I think they’re fairly level here. Could be wrong.
The signal phasing will really help, though.

Joe Adamski
Guest
Joe Adamski

wouldn’t this be a basic rule rule violation, operating at a speed greater than conditons allow?
http://www.oregon.gov/ODOT/HWY/TRAFFIC-ROADWAY/Pages/speed_zone_program.aspx#The_Basic_Rule

The basic rule assumes sound judgement, something people greatly lack.

Paul Atkinson
Guest
Paul Atkinson

The glare exception to safe speed bothers me a bit. Does this mean that if I were driving my car on the Sunset Highway, for example, and just sped right into the back of somebody while blinded by the sunset…no crime has been committed? The worst I could get is a careless driving violation? Even if I put the other people in the hospital?

Or would a different standard be applied if it were a car that I hit, and not a bicycle?

(This is purely hypothetical…I haven’t hit anybody. I’ve barely driven at all this month — woo hoo.)

Opus the Poet
Guest

The difference in terminal ballistics between motor vehicles and bullets are such that cars are to bullets as guns are to pea shooters. Bullets are 9% fatal, while motor vehicles are, depending on speed between 5% and 99.9999999999% fatal, with the 5% being at 20 MPH and below and the absurd number of 9s at speeds exceeding 50 MPH.

Someone needs to ask the DA if shooting someone “because the sun was in their eyes” is criminal or not, and why the much more lethal motor vehicles are treated less stringently when they are so much more deadly.

TMbusdriver
Guest
TMbusdriver

“Crosswalks coming to SE Milwaukie and 17th…”

I take it you mean, “Crosswalks coming to SE McLoughlin and 17th”?