A pretty question. It doesn’t affect the criminality or noncriminality of the student’s conduct, per se - as I argued above, the result of the conduct is not determinative of whether the conduct was criminal.
However, assuming criminality, it may have an effect on what the crime is. (Similarly, it may have an effect on civil liability, as well). I’m sure the question has been already answered in the jurisdiction, but the issue is a conflict between the precept that you take your victim as you find him, and the precept that if the victim acted illegally, and that illegal conduct contributed to or exacerbated his injury, the student’s liability is thereby diminished. I’m really not sure of the answer.
It may come down to an issue of fact. If the impact was such that the seatbelt wouldn’t have saved the victim anyway, the student would likely be fully liable for the death regardless.
Nope, for two reasons. First, the level of proof is different in civil cases - preponderance of evidence v. beyond a reasonable doubt. Second, the elements are different. For criminal negligence, you need to demonstrate the heightened level the prosecutor discussed - you knew or should have known that your negligent conduct presented an unacceptable risk to others. In civil negligence terms, you merely need show that the defendant acted negligently, and that negligent conduct caused injury to another.
If the surgeon does this while yakking on his cell phone, he is negligent. If he does this accidentally, it’s a tragic accident.
If the plant manager removes the guard, regardless of prodctivity gains ,he is guilty of neglicence. What does this have to do with the OP?
As for the running a stop sign while changing CDs etc., that’s simple negligence. No law can cover every specific action, but when common dangerous are recognised, then specific laws are written. That’s why there are speed limits, no overtaking zones, drunk driving laws, even the law requiring you to take a test before driving.
The fact that the use of cell phones slow reaction times is welldocumented. The most disturbing one is this one, which shows that you’re worse off on a phone than if you’re a drunk driver.
Here’s a list of countries and states where in car cell phone use has already been banned. In addition to those listed, several major corporations have banned their employees using cell phones in cars. Here’s the statements from ExxonMolbil and BP.
Although the cell phone may have contributed to the accident it was the direct result of the driver’s inattention that caused the accident. She should absolutely be charged for the death that resulted in her failure to control her car. I can’t imagine the logic behind the decision not to bring charges.
The problem I have is that many of those laws are written based on unsupportable assumptions, e.g. that it’s using a hand-held cell phone that is the problem. In NY, and the MAD area, the anti-cellphone laws make specific exceptions for cell phones with hands-free attachments. I believe one of those studies you’d linked showed that there was no signifigant difference between the impairment with a hand held cell phone and with a hands-free unit.
Until, and unless, a cell phone ban actually reflects that reality I’m against such a ban - it’s completely cosmetic, and does nothing to actually improve safety on the roads.
And, Uncommon Sense, I have say that while IANAL that I believe criminal charges and the fines from such are never applied to the victim’s family. At least that’s my understanding.
Then why don’t you think it’s enough in this case?
Why are 12 people randomly selected from the registered voter pool more competant to assess true feelings of remorse than the sheriff and the local district attorney, who deal with accidents and crimes every day as part of their job? I would think the law enforcement guys would have much more experience in distinguishing between true regret and false, true emotion and an act.
And why do you assume that?
When my sister killed herself my family was urged by several well-meaning people to sue her psychiatrist for malpractice for not doing more to prevent it. We refused. Why? Because going through the years required for a trial would only have torn us up MORE. Yes, my sister was dead. Yes, she killed herself. Yes, we were mad as hell. Yes, we would have liked someone else to be responsible… but the truth was that my sister killed herself and there really was no one else to blame (in fact, she went to considerable effort to conceal her intentions and prevent anyone from stopping her)
Spending years dragging a case through court is expensive, exhausting, and can be emotionally traumatic. For some people it brings closure… IF they win. For others, it becomes a waking nightmare that prevents them from moving on with their life.
As I pointed out, the widow in this case does not seem interested in pursuing charges. That is her choice. The state does not seem interested in pursuing charges. That is up to the district attorney. Both those parties are far more involved with and knowledgable than I am about the circumstances. It’s hard for me to work up enthusiasm for a trial when they aren’t much interested.
Why not?
Because someone died?
If the man who had died had lived instead, but had been severely injured… let’s say, lost the use of his legs - he could have been ticketed for not wearing a seatbelt. Would that be unfair? Isn’t becoming paraplegic punishment enough? In which case a fine equivalent to “a couple of speeding tickets” might seem excessive.
If all that had happened was that this girl had strayed over the line briefly and no accident occured, no one got hurt, would a $400 fine seem excessive or not enough?
And, again - $400 might be a lot to this girl.
From a different perspective, let’s say both Michael Jordan and I bet $50,000 on a golf game. We both lose. What’s the difference? Michael Jordan is inconvenienced - I am bankrupt. If I bet $400 on something and this girl bets $400 (which for the moment we’ll assume is all the money she has in the world) and we both lose, what’s the difference? I’m inconvenienced - she’s bankrupt. It’s not just the amount of the fine, it’s also it’s effect on a person. Now, if this girl is filthy rich that’s a different story, but most people her age aren’t and to most people her age $400 means more to her than it does to me.
Under the Code of Hammaburabi in Ancient Babylon, fines were assesed as a portion of a person’s income, so a wealthy man paid a greater absolute value for any offense he committed, but the same porportionate to his overall wealth as a poor man. Arguably, that’s more fair than our current system.
Why?
Certainly, if there is malicious intent there should be penalities - that’s the difference between murder and manslaughter for the most part, intent.
But if it’s an accident… why should there be greater penalities? Will that teach you to never, ever have another accident? No - because accidents are to one degree or another unpredictable. You might be more careful in the future, but there is no way to eliminate ever having another accident ever again.
If I kill someone in self-defense, should I be punished? Someone is dead, after all, and it’s a direct result of my own actions. Are you saying ALL deaths require someone to be punished?
And keep in mind there may have been other consequences. The article didn’t say, but there’s a very good chance that both cars were destroyed in this accident. So, in addition to $400 this girl has also lost a car, which, if she owned it, was probably her most valuable asset (If she didn’t own it, she may be required to replace it for the owner). If it was her sole means of transportation to employment, so that she no longer has a reliable means to get to work, she may well have lost her job because of it. Or maybe not. We don’t know, do we? And that’s the problem with news articles - you never get the whole story.
Is losing your most valuable asset and your job punishment enough for accidentally killing someone?
Ok, disclaimer: although I did read the entire thread carefully, there are so many points here that I can’t be certain of not repeating one or two of them myself - sorry. Here’s may take on the issue(s).
Firstly, causing anyone’s death while driving a car should be a crime, unless it is no fault of the driver e.g. a tyre blowout, brake failure (unless the car is poorly maintained), having an inexplicable blackout and swerving into oncoming traffic. Even falling asleep at the wheel can be attributed to the driver being knowingly unfit to drive, therefore it was their fault. The privelege of driving a motor vehicle comes with the responsibility of using it safely, just as when using a chainsaw you shouldn’t wave it about near people. So any death caused by bad driving is criminal negligence.
Note that this is just my view of what the law should be; I’m not sure about the reality of it, so I won’t comment on whether the correct legal decision was made in this particular case. However, we can comment on the moral decision.
The main problem when driving while using a hand-held phone is that in a manual car you need (at least) one hand to steer and the other to change gear. It is not uncommon in the UK to observe such scenarios as a driver with a phone cradled in their shoulder (which restricts your head movement and hence field of vision), changing gear with one hand, smoking a cigarette with the other and steering with their knees (for example)! Clearly one cannot react to any emergency when handicapped in this way, and the same is true if one is simply holding the phone with one hand and steering with the other (because then you have to let go of the wheel to change gear - I’ve done it ). This is not a situation which occurs with hands-free phones, toddler in the back, chatting with a passenger etc., so these remain legal.
Of course in the US, where autos are the norm, this is perhaps less of a problem, but the fact remains you have only one hand and one eye on the road, which is dangerous. Studies that seem to show there is no difference between talking on a hand-held and talking on a hands free are preliminary only and an indicator at best.
Arguing that the girl’s behaviour might not have killed anyone is stupid and irrelevant. The fact is, she did kill someone through her negligence, which she admitted. So it is manslaughter and she should be charged with such. If she hadn’t killed anyone, a ticket to reprimand her and encourage her not to do so again (possibly killing someone next time) would have been sufficient.
Yes, she may be remorseful, but that also is irrelevant to the deterrent and punishment aspects of imprisonment. Now any psycho who wants to kill people can swerve across the centre line, claim it was an accident and get off $400 lighter. Taking someone’s life should be punished by the law. If she’s that upset, prison would be a good place to let her reflect on it.
Everyone seems to think that the fine is significant as well - it might be her life savings etc. Well I’m sorry but you can’t put a price on someone’s life. Is that all the dead man is worth? $400? Besides, the fact she was driving a 1999 Ford Explorer suggests she (or her parents) are not exactly badly off, doesn’t it?
Anyway, sorry for going on - this wasn’t meant to be a rant, actually, but it did get a bit extreme. I stand by what I say, but… I’m not really such a nasty person, honest
First, no need to apologise, I don’t think. You were articulate, and to the point.
The problem I have with your reasoning is that the studies that point to the hazards of cell phones aren’t predicated on manual transmissions, they’re predicated on the distraction effect of the cell phone. Also, you’re right, the automatic transmission is the usual transmission for most Americans - some of us are neo-luddites who loves us our manuals, but we’re in the distinct minority. So, while I agree that trying to drive a standard with a cell phone in your hand is a hassle, it’s not the main concern of the people in the US pushing the laws. And again, at least one of the studies that were posted earlier about the distraction hazard of cell phones made the point that both hand held and hands-free cell phones adversely affect reaction times, and IIRC to a similar degree.
How do you intend on paying for the massive increase in incarcerations caused by this new law? For someone who has espoused largely conservative views, increasing public debt or raising taxes seems like an odd thing to promote. Please don’t pick my pocket to support your need for rigid authoritarianism.
I believe you are a good person.
I also believe you are wrong.
The problem with your approach is that, IMO, every single person has, at one time or another, acted negligently while driving. I strongly suspect that it is physically/neurologically impossible* for a human being to remain completely alert and properly focused at all times while operative a vehicle.** Whether this inevitable negligence actually causes harm to another is a matter of random chance.
So, the question is, do we criminalize human nature? Or, more to the point, do we make criminals out of those poor slobs who have acted the same way all of us have acted in our lives, simply because those poor slobs had the horrible bad luck to roll snake eyes in the crap game of life and have their inevitable negligent conduct happen to occur at a time when that conduct ends up killing someone else?
Criminal law recognizes that we are not perfect. To make the test of criminality one that is beyond the ability of humans to meet is to make an absurd law. Every one of us would be acting criminally every day, and a law that makes everyone a criminal is useless. (It is also prone to abuse - leading to selective prosecution).
To account for the imperfections of humanity, therefore, we have long ago decided that the test of criminality should be intent - did the person intend to act criminally or, in the case of criminal negiglence, willfully ignore a significant risk to the life and limb of others?
Under the intent thesis, the result of the action determines that severity of the crime committed, but not whether the action itself was criminal in the first place. The problem with your “if she killed someone, it’s manslaughter, and if she didn’t, it’s a ticketable offense” position is that, in each case, the student did the same thing. What she did and why she did it should determine whether she acted in a criminal manner, not the result of the behavior.
Let’s take the reverse situation: a man randomly shoots a bullet while standing in a park that is regularly frequented by the public. He’s not aiming at anyone in particular, and the bullet hits no one and falls to the ground, spent. No harm, no foul? I mean, the man caused no actual harm, because on that day, he rolled a lucky seven and the bullet didn’t actually hit anyone.
No, we have decided that that behavior is criminal, because the man’s intent was to create a situation where there was a significant risk that someone could have been hurt or killed. Intent, not results, determines criminality.
But if intent makes an action criminal even if no harm occurred, the obverse must also be true - lack of intent must make an action non-criminal even if harm does occur.
Finally, your fears about the precedent deciding not to prosecute creates is misplaced. First of all, it is not actually a precedent - the decision not to prosecute here has no effect on the decision to prosecute or not to prosecute in other cases. Second, the “precedent” was established long before this case - if there was no criminal intent, there was no crime.
Sua, as you may have noticed, in the most part I have shared your opinions on this particular issue. The problem is that I have to take exception to this particular reasoning: This is exactly the same reasoning that kept Drunk Driving an effectively unpunished crime for so many years.
Granted the two situations are not parallel. For many years while there were laws against drunk driving they were not often enforced, because of this attitude. Here we have a situation where there is no law, and not really a consensus that there should be one, and in absence of such a law the prosecutor chose not to go for a higher charge than what s/he was certain could be proved. I just can’t forget the effort that it took to put in DWI laws with teeth because of that attitude.
-Loki
btw, your UserName, would it happen to be the school motto of a school you had attended in Concord, MA?
It’s not. There is a world of difference between physical/neurological incapability, which causes negligent conduct, and, for want of a better phrase, “moral weakness”, which causes someone to slug down a few and then get behind the wheel.
Have you ever forgotten to check to see if there are any approaching cyclists before you open your car door? Ever step on someone’s heel because you were walking too close behind and didn’t look where you were placing your feet? Ever run and jump into a pool without making certain there was no one where you were going to land? All of these actions are negligent, and all can, if the circumstances are against you, cause significant injury, even death, to another. But all of them are the result of human failings that inevitably affect all of us - we forget, we don’t think, we assume.
That’s a completely different kettle of fish from excusing the deliberate conduct of a person in consuming booze, then driving. There, an overt and conscious choice was made, and we should bear the consequences of overt choices. We shouldn’t bear the consequences, at least criminal consequences, of being a fallible human.
The attitude you are talking about is more akin to “boys will be boys,” and I agree it is a bad attitude in the criminal realm. Conduct should not be excused, or considered noncriminal, because we are all tempted to act in a negligent or wrongful manner. Conduct should be excused, or at least considered noncriminal, when we can’t completely avoid acting negligently all the time.
No, my UserID is a joke from law school, not a school motto.
I do grant the two behaviors on the part of the authorities are different, and I didn’t mean that I particularly disagreed with the reasoning as applied to this case. I just meant to express a measure of (to use a non-technical legal term) ickyness in my reaction to the way you’d stated the principle: trying to express a need for caution in that thinking as well as with the idea of criminalizing anything that adversely affects other people.
And thanks for the answer to the really minor question.
Massive increase?
How many deaths are caused each year in this manner? I’m referring to people engaging in an activity that they know hampers their abiblity to drive attentively.
Maybe 500 nationwide? I think each state could absorb the costs of ten additional cases each year without the need to raise your taxes a noticeable degree.
questions to all;
Would most of you feel the same way if the girl had been reading a book, or watching a DVD while driving?
What if she was just a bump under the legal limit for alcohol?
What if she had strayed into a biking lane and killed a seven year old boy riding home from school?
What if she had strayed onto the shoulder of the road and killed someone walking home from work?
(just for more discussion value, not trying to make a point, yet. )
Certainly. Thanks for the data, but like I said earlier, every case should be taken on an individual basis.
What your data does not show is how many of those cases go to court and/or how many of them had no charges filed.
That one sentence is hard to understand, are they saying that 11% of 4,462 are caused by inattentive driving or is the 4,462 the eleven percent?
(If it is 11% of 4,462 then my 500 guess is pretty close.)
). This is not a situation which occurs with hands-free phones, toddler in the back, chatting with a passenger etc., so these remain legal.
)