On September 23, 2013, Emilee Gagnon was riding across the country to raise money for M.S. She was from Holliston, MA and riding solo. The sun was starting to go down as she was riding through northern Ohio. Emilee was riding westbound along the right side of State Route 163 near Genoa, Ohio.

Motorist Lynne Smith was driving her 2001 Ford Escape westbound on State Route 163 when she came up from behind Emilee. Smith smashed into Emilee with her Ford Escape, at speed, and later claimed she “couldn’t see” Emilee because of the setting sun. Emilee died from the horrific violent crash.

Now State Route 163 is one of those typical Ohio rural roadways… narrow, straight, flat & fast, despite the 55 mph speed limit.

It runs due east/west and features a wide open rural farming landscape.

Emilee Gagnon SHOULD HAVE BEEN HIGHLY CONSPICUOUS to Lynne Smith. Lynne Smith SHOULD HAVE SEEN Emilee but Lynne Smith told everyone that… surprise surprise… the SUN was setting… just as sunset was approaching…and since it was a nice clear day and the sun was setting… in the WEST no less…and Lynne Smith was driving DUE WEST on SR 163 she was apparently shocked to find that sun was in her eyes- she claims the significant sun glare simply prevented her from seeing much of anything… the Glare did NOT prevent her from tromping on the accelerator and driving dead ahead at “55-58 mph” though…

Driving While Blind? Is that a thing – a crime?

When I googled Sun Glare, the top hits were all from Law Offices telling clients what kind of trouble they could get into by driving into sun glare. I mean, it’s like OBVIOUS right… If you CAN’T SEE THEN DO NOT MOVE A TWO TON BOWLING BALL FORWARD… Pull off the road… stop & wait a minute…

Ms. Smith said she NEVER SAW Emilee Gagnon. Given the make up of this road that seems… far fetched? For how many miles was she not paying attention?

CRIMES BASED ON NEGLIGENCE

In Ohio, we have the crime of “negligent” vehicular homicide. However, it requires proof of “criminal negligence” which is a different type of negligence than your regular old run-of-the-mill street negligence. If you prove a motorist is guilty of negligent vehicular homicide then the WORST thing that can happen to that motorist in Ohio is… ta da… a short jail term, 180 days, a fine, maybe some license suspension…

There are less serious misdemeanor versions of vehicular homicide [vehicular manslaughter] as well as more serious crimes of “aggravated” vehicular homicide, which are serious felonies in Ohio. To jump from “negligent” vehicular to “aggravated” the State must show the presence of one of the aggravating factors listed in the statute such as “reckless” or worse behavior [worse than negligence] or driving without a license or while hopped up on drugs or alcohol… Simply DRIVING BLIND is not on the list. I MIGHT be considered “reckless” but… most prosecutors won’t take that chance.

What do those words mean? From State v. Peck we get the following:

{¶ 11} “`”A person is said to be reckless under the section when, without caring about the consequences, he obstinately disregards a known and significant possibility that his conduct is likely to cause a certain result or be of a certain nature, or that certain circumstances are likely to exist.”‘” Bexley v. Selcer (1998), 129 Ohio App.3d 72, 77, 716 N.E.2d 1220, quoting State v. Pack(1996), 110 Ohio App.3d 632, 636, 674 N.E.2d 1263, quoting Legislative Service Commission Comment to R.C. 2901.22. 

{¶ 12} A mere failure to perceive or avoid a risk, because of a lack of due care, does not constitute reckless conduct. Columbus v. Akins (Sept. 27, 1984), Franklin App. No. 83AP-977, 1984 WL 5923. Instead, one must recognize the risk of the conduct and proceed with a perverse disregard for that risk. State v. Covington (1995), 107 Ohio App.3d 203, 206, 668 N.E.2d 520; State v. Whitaker (1996), 111 Ohio App.3d 608, 613, 676 N.E.2d 1189 (noting that to be reckless, “one must act with full knowledge of the existing circumstances”). 

{¶ 13} In contrast to the actor who proceeds with knowledge of a risk, the failure of a person to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature is negligence. R.C. 2901.22(D). Recklessness requires more than ordinary negligent conduct. The difference between the  terms “recklessly” and “negligently” is normally one of a kind, rather than of a degree. “Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.” (Emphasis sic.) Wharton’s Criminal Law (15th Ed.1993) 170, Section 27; see, also, State v. Wall (S.D. 1992), 481 N.W.2d 259, 262.

Here, Lynne Smith claimed to be oblivious to the presence of Emilee on her bicycle in front of her. In a criminal case if she doesn’t take the stand the Prosecutor would have to prove Lynne Smith was aware there was someone ahead… Maybe an expert could do that but that’s a tough burden. In a civil case for money damages you can just put her on the stand and grill her, allowing the jury to see how she looks and sounds. Proving Reckless vs. Negligent behavior in a civil case, though, doesn’t really net you anything… If someone is driving for a company then reckless behavior will heighten the risk of a big verdict… proof of recklessness might tick off the jury so maybe they’ll award more in damages but it doesn’t change the basic claims as it does in a criminal case.

Read on…

Lynne Smith was charged with a first degree misdemeanor. She plead down & ended up with a conviction in 2014 to the charges of second degree vehicular manslaughter. She faced a MAXIMUM of NINETY DAYS in jail on the lesser manslaughter conviction, but was sentenced to ZERO. The Judge put Lynne Smith on Probation for 2 years and fined her $750.00. The 90 day jail term was suspended pending her completion of probation. Lynne Smith walked out of court FREE to go about her business virtually without restraint. By all accounts, Smith served her sentence without issue and was actually released from her probation early due to good behavior.

MOTION TO SEAL THE RECORD

Ohio law relative to hiding your past convictions has loosened up a bit over the years. You can seal or expunge your record by filing a motion after waiting a year. Even felonies are subject to being hidden. Kill somebody with your car & don’t want anyone to know? Just be good, wait a bit and file a motion to seal the record. Often, you don’t have to tell anyone about it – and you can pretend like it never happened…

Several law schools in Ohio have a rule that requires candidates to disclose prior criminal charges, even if the record is sealed or the matter is expunged. Peter Leasure of the Drug Enforcement & Policy Center at OSU wrote a piece suggesting that schools ought to tailor their rules to be consistent with state law –

Here, a few years after her conviction, Lynne Smith filed a Motion to Seal Her Record- to make it invisible – to prevent future employers, or others studying court data, to see the record of her conviction. She basically filed a motion to whitewash her record as a careless killer… and Emilee Gagnon’s parents, who were notified of then filing by the prosecutor, were mortified…

Emilee’s parents, who live in Massachusetts, reached out to me when they became aware of Lynne Smith’s Motion to hide her criminal record. There was not much they could do. We made their objections known to the prosecutor. The family obtained letters of support from friends and folks who knew Emilee and we submitted those to the Court.

O.R.C. §2953.32 is entitled Sealing or Expungement of Record of Conviction… The new statute set out a procedure for a hearing. The Court set the case for a hearing up near Toledo. Emilee’s parents flew into Ohio from Massachusetts & I drove up from Cincinnati to support them and attend the hearing.

As we waited, there was considerable discussion with the young assistant prosecutor, who had never had a case under this statute. As he read through the statute he realized that the law required the State to put on evidence as to why the record should NOT be sealed. So he needed a witness. While the family could testify about their experiences and wishes, he needed someone to talk about the impact to the community from sealing such a record.

I ended up volunteering to be a sort of “expert” witness in bicycle crash cases and bike research and the Prosecutor ended putting me on the stand to try to explain the importance of these cases being available to researchers, lawyers, legislators and others with an interest in traffic safety and preventing traffic violence. My multi hour trip to Toledo to watch a short hearing ended up being a full day plus time in the witness box! From a news story about the case:

In the end, the Judge issued a disappointing ruling. He granted Lynne Smith’s request to hide her dirty laundry. So the case of State of Ohio v. Lynne Smith, Ottawa County Municipal Court case No. CRB-1301569 A, was simply wiped off the books- it doesn’t exist as far as the public is concerned. Lynne Smith’s careless killing of Emilee Gagnon is swept away… kept alive only online through republications of her misdeeds like this one.

Here’s what Lynne Smith’s docket USED TO look like- you. just can’t find it online any more:

EMILEE GAGNON continues to live on though… In her hometown press she was described by one of her professors as a “walking piece of art” and someone who was a “wonderful student with positive energy.”

So we will choose to REMEMBER EMILEE GAGNON …

But…

… we will also choose to NOT FORGET that Lynne Smith killed her, despite there being no official notice of such in her “permanent record…”

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