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How legal loopholes and lack of stigma create a hit-and-run culture

Posted by on August 23rd, 2013 at 1:22 pm

Scene of fatal crash on SW Barbur Blvd-2

Barbur Boulevard is dangerous even when a
driver doesn’t decide to flee a crash.
(Photo: J.Maus/BikePortland)

Nobody expects to kill a person with their car. This means that the moment you do, your only basis for decision is usually something you heard once from a friend.

And as Portland deals with two major recent hit-and-run cases involving people on bikes, some victim advocates are saying that Oregon needs to do more to spread the idea that it’s morally reprehensible to flee the scene of a collision.

“What’s happened is that Mothers Against Drunk Driving and all these other great organizations have done incredible work over the last 20 years,” Joshua Shulman, a Portland lawyer who works on civil injury cases and has researched the topic, said Friday. “And I’m so glad that they have, because drinking and driving is awful. But one of the side effects of harsh penalties is to make people more likely to avoid them.”

“Drinking and driving is awful. But one of the side effects of harsh penalties is to make people more likely to avoid them.”
— civil injury lawyer Joshua Shulman

In many hit-and-run cases, Shulman said, that’s exactly what happens: a person driving drunk hits someone, panics, heads home and only turns themselves in after sobering up.

“If you leave the scene, it’s shockingly easy to get away with avoiding the DUI,” he said. “The person must have been drinking. People just don’t do this sort of thing if they’re not drunk. But what are you supposed to do? You ask them ‘Were you drinking?’ They say no. Are you supposed to take their photo to every bar in Portland?”

Oregon’s criminal code actually makes few distinctions between leaving the scene of a fatal crash and criminally negligent homicide or second-degree manslaughter, the two likeliest charges for fatal DUIIs. All three are Class B felonies.

But due in part to the successful effort by MADD and others to stigmatize drunken driving, Shulman said judges and juries are more likely to be lenient, unless there’s a DUII conviction (which by law can’t be plea-bargained away).

The result: a perverse incentive, despite the criminal code, for one Oregonian to leave another one bleeding on the street.

Kristi Finney at summit

Victim advocate Kristi Finney.

“There is a focus on drunk driving, there is now a focus on texting and phoning and all of that, but there’s never been a focus on hit-and-run,” said Kristi Finney of Vancouver, who has devoted much of her life to street safety advocacy after her son Dustin was killed in a hit-and-run on Division Street in 2011. “Some people sympathize with people who hit and run.”

Finney’s case shows another perverse incentive for Oregonians to hit and run: to avoid conviction altogether. Although the man who pled guilty to killing her son only evaded arrest for a few minutes, that window was enough for law enforcement to conclude that they couldn’t be certain of conviction, leading to a plea deal that reduced the driver’s minimum prison sentence.

Hit-and-runs accounted for about one in 20 Oregon injury collisions in 2010 and 2011, according to statistics requested from the state by Shulman’s law office.

Finney, who has worked with Shulman to launch a new website about hit-and-run victims, has tried to mobilize other victims’ families for a MADD-like movement, with little success.

“My thought is that my little voice does practically nothing, and if we can just get a bunch of us together to be a huge voice,” Finney said. “But I just simply cannot get a response from other families. … Some people want to get over it. I don’t want to get over it. I want to get out there and prevent it.”

“It’s almost worse for families of hit and runs than drunk drivers,” said Maureen Inouye, client relations manager for Shulman’s law firm. “There’s not closure.”

Hit-and-run victim Henry Schmidt.
(Image from KATU video)

Shulman supports making Oregon’s criminal penalties for hit-and-run clearly higher than for DUII, so people will know that you’re always better off staying at the scene.

But he said legal changes — like one passed this year, which upped the civil penalty for an injury hit-and-run from a one-year license suspension to a three-year suspension — won’t be enough on their own.

“Hardening the law would help, but also the whole concept of what it means to drive a car needs to change,” Shulman said. “We think of it as just getting to work, like it’s nothing. We need to realize that it’s a huge responsibility. … Leaving just should be completely unthinkable.”

Changing the way people think, though, can be the hardest task of all.

“With drinking and driving, one of the things that happens is people drink so often — there’s just millions and millions of people making a decision about that issue very day,” Shulman said. “Whereas with hit and run, people are only in that position if they hit someone. It’s something that most people will never face in their entire lives, and most people [who do] will only do it once. What MADD was able to do was put drunk driving on people’s minds every time they have a drink. I don’t know how to do that with hit-and-run.”
——

Further reading: Why people flee the scene of hit and runs (published here on January 26th, 2012)

— A note from the publisher: This story is part of a new effort here at BikePortland to bring you more, in-depth and original reporting on important issues here on the Front Page. Stay tuned for more stories like this in the weeks to come. — Jonathan

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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9watts
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9watts

drinking and driving = bad

texting and driving = bad

driving and running away = needs work to be recognized as very bad

What do all of these have in common? Oh, yeah. DRIVING.

“the whole concept of what it means to drive a car needs to change”
Yep.

David
Guest
David

“Shulman supports making Oregon’s criminal penalties for hit-and-run clearly higher than for DUII, so people will know that you’re always better off staying at the scene.”

I’m not convinced that making hit-and-run penalties higher than DUII penalties will make people want to stay at the scene. Do people flee because they’re afraid of getting a DUII charge, or do they flee because they think they’ll get away with the whole thing (drunk or not)?

kittens
Guest
kittens

Question: when police tell you to look for such-and-such vehicle involved in a hit and run, what are we supposed to do?
report every sighting matching the description?
That white 1993 Ford F-350 crew cab with chrome steps seems everywhere. And most have body damage due to age.

peter michaelson
Guest
peter michaelson

Of course I agree with the article, but, personally, I’m more interested in how people behave before driving into a vulnerable user than I am in what they do afterwards. I think prosecution does have some preventive effect, but not enough to have a major effect on drivers’ culture of entitlement.

Maybe I’m wrong but I believe that strict enforcement of existing traffic laws (speed, yielding, distraction, etc) would save more lives and make people feel safer. I also think the laws should be different for a 100 pound vehicle at 15 mph than a 3000 pound vehicle at 30 mph.

Spiffy
Guest

I’m not convinced that MADD has made any difference at all… I can’t find any data on drunk driving fatalities before they were founded… and all the fatality graphs show that there was a steady and sharp decline in fatalities for the decade before MADD came along, making it seem like they stopped the decline in fatalities…

1972 to 1982 shows a huge decline in traffic fatalities… 1982 on is a fairly tame decline… something happened around 1982 that stopped making driving get safer…

all anecdotal…

MADD says that drunk driving deaths are half of what they used to be… maybe driving drunk made people better drivers when they weren’t drunk… seat belt campaigns were also hot in the early 80’s… are seat belts killing people? maybe we drive worse knowing that a seat belt will hold us in…

as I once read, when cars are finally designed so that people’s legs hang out over the front bumper then we’ll stop seeing so many collisions…

lyle w.
Guest
lyle w.

“Although the man who pled guilty to killing her son only evaded arrest for a few minutes, that window was enough for law enforcement to conclude that they couldn’t be certain of conviction, leading to a plea deal that reduced the driver’s minimum prison sentence.”

Pretty sure this is because a good lawyer would argue that there’s no way the cops could prove he didn’t start drinking immediately after the accident, in the minutes between after he hit the guy and before they tracked him down. I know this defense/loophole has worked before (multiple times)… despite the insane/illogical reasoning involved in it.

And I wonder why legislation can’t just be written eliminating this defense, and making it so that if you DID hit someone sober, drove off, went home and downed a six pack in the ten minutes it took the cops to run your license plate, you’re considered tough-luck DUII for the purposes of the state you were in before the accident.

David
Guest
David

Am I losing my mind or did the title of this post change?

Kristi Finney-Dunn
Guest

Hi, Lyle. The DUII wasn’t the issue at all in our case. It was that nobody saw the driver. The witnesses were behind the vehicle… but I have heard of that defense. After all, a drink might calm nerves after you hit someone and leave them on the road like a possum.

J_R
Guest
J_R

Because of a failed attempt with a shoe bomb, we all have to take our shoes off at the airports. We all have to go through metal detectors and have our luggage screened. But we do nothing to detect drunk drivers. How about random sobriety stops like they use in civilized countries?

I’m ready to give up this little bit of freedom on the roads for a real problem that kills 1500 people per month in the US. I already experience worse inconvenience for the statistically safer act of flying and the security actions that cost me $5 per flight and half an hour of waiting in the security line.

peter michaelson
Guest
peter michaelson

“We need to take a lesson from Europe and revoke a person’s driver’s license EASILY, for LIFE when they do dumb things. Driving on a suspended, revoked for life, drunk driving…same thing. Three speeding tickets over 10 MPH over the limit within five years…revoked for life. ”

This sounds fantastic. Can you post any links with more details? Which countries, specific laws, etc.

dwainedibbly
Guest
dwainedibbly

Dibbly’s 5-part Hit & Run Prevention Proposal: 1. Mandatory jail time. 2. Presumed DUII. 3. Forfeiture of the vehicle. 4. Wages 25% garnished for life, to be transferred to the victim(s). 5. Forehead tattoo, to be selected by the readership of BikePortland.

esther c
Guest
esther c

The penalty for hit and run needs to be more severe than for drunk driving. Even if you turn yourself in the next day. Because if it isn’t there is no incentive for a drunk driver to not leave the scene (other than basic human decency, which if they possessed any, they wouldn’t be driving drunk) and perhaps report it the next day if they knew they were going to be caught anyway. Then they are better off not getting the DUI and getting a leaving the scene. That is a disgrace.

The law should be written that leaving the scene will be considered prima facie or res ipsa loquitur (whichever the hell would apply) that the driver was DUI. No if ands or buts.

David Lewis
Guest
David Lewis

It’s the not cars, the drivers or the drink individually that’s the real problem. It’s the criminally insane idea of the typical U.S. suburb! It has made the automobile a virtual necessity and turned neighboring cities into rotting concrete mazes of highway to accommodate them. See the Portland riverfront for an example. It’s just not practical to travel from one end of any U.S. city to the other in a reasonable amount of time without a car, and sometimes not even then. Even if the bus or tram stopped anywhere near where a person lives, chances are it’s a roundabout route and requires a lot of walking and confusing and expensive transfers. People avoid the bus because it’s inconvenient and take it if no other alternative exists, and this is a shame. Here is a list of practical and inexpensive solutions to the problem:

1) Prohibit bars from having parking lots.
2) Demolish subdivisions with no sidewalks or supermarkets or social halls or restaurants.
3) Monorail.

I lived in Germany for several years. Public transportation there is second to none, making walks short on streets with well-lit sidewalks and many rural neighborhoods have places to socialize without having to travel at all. This combined with strict licensing requirements and stiff penalties make cars a decision many people do not even need to make. The ones that have cars generally respect the law with rare exceptions.

I’m originally from the East coast, and we have many rural roads with single family homes with driveways but no sidewalk, and nothing but other single family homes for miles in any direction. Towns all look alike because they have converted to become six lane highways with fast food and strip malls on either side and little else. The bright side is someday when there are no cars these would become fabulous routes for light rail, so the jokes on us.

Opus the Poet
Guest

They need to use the same logic for motor vehicles as they do for firearms. If someone gets shot and they find you in possession of the gun a few minutes (or a couple of hours) later you are assumed to have been the shooter unless you can provide a rock-solid alibi. None of this “I loaned it to a friend” BS, if you’re driving a car with damage shortly after a hit-and-run. If firearms were as deadly as motor vehicles (or even half as deadly as some people think) then we would be swamped by people killed in shootings. Instead we are swamped in people killed and maimed by motor vehicles.

Todd Boulanger
Guest
Todd Boulanger

One thing our legal / traffic safety / enforcement system is missing is training post DUI drivers with life transportation skills that do not require operating a motor vehicle. As a society we have often only given them drivers ed in school.

Please someone write a a grant to provide this population with cycling and transit skill set (a create a commuter type program). Without such…there is little wonder why many return to the drivers seat.

Bjorn
Guest
Bjorn

I can offer one specific data point around this. In Corvallis a woman named Amy Stack who had previously participated in a diversion course after being caught drinking and driving hit and killed Robin Jensen while she was riding home from work. Stack did not stop at the scene and instead went home and ordered a pizza. She dripped marinara sauce on the car while inspecting the damage and then after her father hired her a lawyer and the police/community spent several days looking for the car that she had hidden in her garage she turned herself in reporting that she had hit a deer or other large animal. She ended up serving only around 9 months in jail and then was permitted to leave the state. I have a hard time believing that if someone previously convicted of a DUI was found drunk at the scene of an accident where they killed someone that they could possibly end up with such a short sentence. Police attempted to find witnesses to show that Stack had been drinking but several days had passed and they weren’t able to find any proof. In the Stack case the victim died immediately but in a case like that of Miriam Clinton where it appears she left someone for dead I wonder what might have happened had a bus driver not been so observant. To me hit and run is even worse than DUI because it has the potential to turn a serious accident into a deadly accident. Perhaps this story is correct and the letter of the law is that they are the same, but in practice DUI seems to clearly be punished more severely, even though in my experience hit and run is often just another very scary piece of a DUI. I mean seriously why would you run if you weren’t drunk? As long as you are sober it is likely you will walk away with a 2-3 hundred dollar traffic ticket at worst even if you kill someone.

Paulson Coletti
Guest

If they started focussing on hit &run as much as they are texting while driving I think it would help out a lot.