I’m not a criminal lawyer.  I don’t do criminal cases and I must confess I don’t know criminal law the way I know the law relating to civil cases, insurance, and the like!  So maybe this is why I STILL don’t get criminal sentencing sometimes…

It seems like we are ALWAYS hearing about motorists who kill or maim riders… and yet, there is no prosecution, or they receive very little punishment for their misdeeds.  Readers frequently ask me “How Can This Happen?”  Hit/run cases are EPIDEMIC today… yet, the penalties for hit/run drivers are very small compared to the impact of such actions on the families losing a loved one.

I read the first sentence of this January 12, 2011 online newspaper article, though, and my jaw hit the floor… “…A Canton woman involved in a fatal crash that killed a motorcyclist in June reported to the Stark County Jail on Monday to begin serving a 15-day jail term.…”

Yes, that’s not a typo.  She began serving her FIFTEEN DAY jail term for killing a motorcyclist.   How does this happen?  Was the motorcyclist at fault somehow?

In this case, the motorcyclist apparently did nothing wrong.  According to media reports, 19-year-old Jonathon Davis was riding his motorcycle and had the right of way at the intersection of Ellis Avenue and 27th Street NE in Canton, Ohio, when 27-year-old Michelle Merry blew the stop sign.  Davis smashed into the side of the car, went through the windshield and ended up inside.  He later died in surgery.

Michelle Merry was charged with Vehicular Homicide and Vehicular Manslaughter.   According to the most recent story, she plead guilty to Vehicular Manslaughter.  The judge sentenced her to “90 days in jail” then suspended all but 20 days, and gave her credit for five days served.  He ordered her to pay “fines, costs and restitution” and suspended her license for two whole years!  Wow, what a severe slap on the wrist for killing someone – two weeks in jail!

Criminal law is based on “intent” and punishing people who intentionally do things to others.  Murder – Assault – Robbery.  You don’t do these things carelessly or without intending to do them.  Those crimes are “easy” – no one has any heartburn about severely punishing people who clearly commit these crimes.   Whether you are for or against capital punishment, clearly people who intentionally kill, hurt or rob should be severely punished.  The guilty STATE OF MIND is critical.

What about when someone CARELESSLY kills or hurts someone?   They didn’t mean it.  They didn’t INTEND to hurt you.  They weren’t planning on crashing into someone.  They “merely” goofed – they were twiddling the radio dial, texting, downloading a fax on their smartphone, turning around and yelling at their kids, driving “blindly” into the sun or doing some other dumb, stupid, careless or distracted thing when they smashed into someone or something else.  How should “The Law” treat these people?

What about someone who is “merely” speeding?  Should the penalties be more severe if someone is killed by a speeder?  How about if someone shoots a gun in the air on New Year’s Eve, not “thinking” that the bullets that go UP will also come DOWN somewhere and, maybe, into someONE?  That guy didn’t MEAN to kill someone – they didn’t INTEND to hurt anyone – they weren’t AIMING at anyone… they shot a bullet into the air and it killed someone … it “just happened”… it was “an accident.”

I hate that word – “ACCIDENT” – especially when it is used in discussions about cars and trucks running into bikes and killing or maiming riders.

These things are NOT “accidents.”  Accidents occur without regard to “fault.”  “Accidents” are not the natural result of stupid, careless behavior.  True “accidents” are the result of being in the wrong place at the wrong time – they are Nobody’s fault.  These crashes are the predictable result of a series of events set in motion because of someone’s stupid, careless behavior.

How does the law treat these stupid, careless mis-steps?

With the increase of such cases we see that there are services that are looking into providing weapons to the right people. If you wish to buy 9mm ammo from Palmetto State Armory make sure that you follow the rules that they have set forth. In civil cases, you can pursue the stupid-acting doofus and obtain a money judgment to compensate you for your injuries and damages.  If some texting-teen  clobbers you, you have a claim against him/her.  If a radio-dial-twiddling motorist broadsides you, you can win money damages.  If Michelle Merry ran a stop sign and killed Jonathon Davis, Mr. Davis’s family can sue Ms. Merry for damages.  Of course, if she lacks insurance, or carries Ohio’s incredibly low state minimum of $12,500] they won’t collect enough money to pay the funeral bill, but, hey, that’s their problem, right?]

But does the CRIMINAL law punish these people too?  Well, not very well in some cases.

Remember, criminal law is based on INTENT.  These crashes [I like that word a LOT more than “accidents”] are not the result intentional actions, but they are the result of STUPID careless, negligent misconduct.   In Ohio, the criminal law recognizes that criminal consequences for carelessly handling two-ton vehicles on public roads is acceptable.

In Ohio, these driving crimes are found in a series VERY long section of the Ohio Revised Code –  Section 2903.06 – “Aggravated Vehicular Homicide – Vehicular Homicide – Vehicular Manslaughter.”   What are the differences in these three crimes?

In Ohio, “murder” can lead to sentences of 15 years to life.  Killing with a car can lead to sentences as low as 90 days…or 15 days in the case of Michelle Merry.

Vehicular Manslaughter

A driver may be charged with vehicular manslaughter, the least serious of Ohio’s three vehicular homicide offenses, if he or she caused a death on the road as the result of violating a minor traffic rule, or by violating any equivalent municipal ordinance.   Vehicular manslaughter is a 2nd degree misdemeanor, but can bump to to an M1 if the driver has no license.  90 days is typically the maximum sentence.

Vehicular Homicide

An individual faces a vehicular homicide charge if he or she caused a death on the road as a result of a failure to use reasonable care while driving, – i.e., was driving negligently – or failed to abide by speed limits in a construction zone.  This is a first degree misdemeanor that can bump up to a felony in certain cases.

Aggravated Vehicular Homicide

Certain elements, known as aggravating factors, can enhance what would otherwise be a standard vehicular homicide or vehicular manslaughter into an aggravated vehicular homicide.   Usually, it’s alcohol or drugs or a history of bad driving.  A drunk or impaired driver who kills a motorcyclist, bicyclist or any other person, is potentially criminally liable for aggravated vehicular homicide.

For all three levels (aggravated vehicular homicide, vehicular homicide, and vehicular manslaughter), an offender’s previous convictions for related crimes as well as committing the offense while driving without a valid license can be taken into account in enhancing a sentence.

Another potential aggravating factor is relatively new to Ohio law. A driver who causes the death of another as a result of committing a reckless operation offense in a construction zone may be liable for aggravated vehicular homicide. This aggravating factor was added in 2004 to try to make construction zones safer for Ohio workers.

Reckless operation can refer to a wide variety of driving, but the key element is willful or wanton disregard for the safety of persons or property. Weaving in and out of traffic, excessive speeding (usually 25mph or more over the speed limit), and other unsafe driving can be considered reckless operation.  Speeding has been found to constitute “reckless” operation as well. The issue of when “negligent” behavior crosses the line to “reckless” behavior is very tricky.

High Enough Penalties?

The penalties for aggravated vehicular homicide in Ohio can be quite severe.   Earlier this year, an Ohio man faced up to eight years in prison after pleading guilty to aggravated vehicular homicide. In Cincinnati a couple years ago, a man was sentenced to SIXTEEN years in prison for killing two bicycle riders.  That fellow was driving on a suspended license on a Sunday morning and was found to have cocaine, pot and alcohol in his system.  He was, in essence, the poster boy for severe punishment under the aggravated vehicular homicide law.

What about the consequences for less serious offenses of vehicular homicide and vehicular manslaughter? Are they strict enough.

In August, Richard Crabtree was killed on an Ohio road when Steven Tirpak ran a red light and broadsided Crabtree’s vehicle. Tirpak had a valid driver’s license, and was not under the influence of drugs or alcohol. He was charged with vehicular homicide and vehicular manslaughter. After pleading no contest to vehicular homicide, he received 180 days in jail (later reduced to 90 days), five years probation, a fine of $1,000, a term of community service, and the loss of his driver’s license for five years.

In 2008, Sara Bender was driving north on Route 23 in the rain when she struck and killed a cyclist, Dr. Steven Crowley.  She didn’t stop.  Rather, she went home, parked her smashed up car in the garage, got in a DIFFERENT car and returned to the scene.  She spoke with police there, and told them she thought she “hit a sign.”

In this case, Bender was not even CHARGED with violating ANY of the three crimes under the Vehicular Homicide section of the Code!  Prosecutors said they could not prove what happened, could not prove “reckless” behavior and did not have a case involving alcohol.  Bender had a valid license.  She “merely” left the scene.  She was charged with a felony “leaving the scene” and her case went to trial.  A jury convicted her of a misdemeanor violation.  She was sentenced to a mere 60 DAYS in jail for killing Dr. Crowley.

In August, 2010, my former employer, the 12th District Court of Appeals in Ohio, held that a truck driver doing 60 m.p.h. in a 55 m.p.h. zone was guilty of being “reckless” when his rig crashed into another vehicle killing the rear seat passenger and seriously injuring the two front seat passengers.  The driver argue that he was “merely” negligent (and thus guilty of a misdemeanor, not a felony) didn’t fly.

After all of THAT… I’m still BAFFLED by this 15 DAY sentence… judges have a LOT of leeway in sentencing in cases where people kill other people with their motor vehicles…

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  • Derek says:

    If you can’t operate deadly machinery safely in the presence of others, your privilege needs to be suspended until you can prove that you no longer have a problem. Staying off the road for two years is not enough evidence that you’ve become a safe driver.

  • JRF says:

    Is there data showing how effective license suspension is at keeping dangerous people off the road?

    It seems like our transportation infrastructure is so extremely car dependent that the risk of being caught violating the suspension may be seen as small compared to the life paralysis of life in American suburbia without a car. In places, not being able to drive is isn’t that far from being in prison.

    I guess it seems to me like prison is an expensive option to keep an careless but ordinairly harmless person from the controls of a lethal weapon. But enforcement and consequences of license suspension viloation needs really serious teeth. I’ve got no problem with jail time and permanent license revocation for suspended license violation.

    Considering the danger involved in operating a motor vehicle, I think it is entirely too easy to get a license and entirely too difficult to loose one.


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