Traffic Collision Reports: What information is in them and who can get a copy?

Written By Christopher Dolan and Casey Hultin

This week’s question comes from William from the Bay Area: My friend rides a motorcycle and was recently injured when he was hit by a car. He believes the police officer who arrived at the scene was biased against him and didn’t even take his statement. He is worried that the police officer found him at fault. Is there some type of report he can get a copy of and if so, who writes them? How can he get a copy of his report? If the report puts him at fault, what can he do? Can he submit a supplemental report? 

Great question William. 

A traffic collision report is a form filled out by the investigating police officer at the scene. The form seeks basic information such as where the collision took place, the names of the people involved along with their contact and insurance information, the vehicles involved, any property damage, and any injuries. It will also generally include a summary of any statements taken at the scene or as part of the investigation, as well as the names of any witnesses interviewed about the collision. There may also be other additional scene investigation information, such as the locations of any cameras that may have caught footage of the incident or measurements for any debris or skid marks. 

To obtain a copy of the traffic collision report, you must qualify as a party of interest in the crash. This generally includes drivers, passengers, vehicle owners, or a parent or guardian of an involved minor. You must complete and sign a request form for the information and provide the date of the collision (or approximate date), collision or incident location (as much information as you have if you do not have a specific address), the name of the driver or owner of one of the involved vehicles, and your name and address. There may also be a small fee. If you are represented by an attorney, your attorney can also help you obtain a traffic collision report. 

If the traffic collision report places you at fault, it will likely make your injury claim difficult to resolve without filing a lawsuit. Insurance companies heavily rely on the traffic collision report when determining who is at fault for claim assessment purposes.   

However, if the traffic collision report places you at fault, that does not mean any claim to injury is doomed. The conclusions in the traffic collision report are often not admissible at trial, meaning that the judge or the jury cannot consider it when deciding who is at fault for the collision. Further, through the litigation process and depositions (questioning witnesses before trial under oath), it is possible to get the officer to walk back the conclusions in the report. For example, often investigating officers do not have the benefit of canvassing for all possible witnesses at the time of the collision because they are dealing with many other competing interests, including making sure any injured people receive medical care and clearing the area for through traffic.

If you find additional information that the investigating officer failed to consider, you can contact that officer and provide the additional information to them. For example, if there is an additional witness the officer missed, you can call and provide that witness’s information so the witness can give a statement. If there are additional photographs, you can send them in as well. If there are inaccuracies in the report, you can point them out. All of these can lead to the officer amending and our supplementing the traffic collision report. You also have the option to get a formal dispute form from the Department of Motor Vehicles in the event the officer is not responding.  

In practice, if the traffic collision report is inaccurate or comes to the wrong conclusion, while you can try to get the officer to author a supplemental report, you are better off navigating the circumstances through an experienced attorney. Especially because, as discussed above, the traffic collision report conclusion is not determinative of fault in a court of law. 

We wish your friend a speedy recovery.  

 

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In The Zone of Danger: Witnessing a Loved One suffer Severe Injuries

Written by Christopher B. Dolan 

This week’s question comes from Travis from the East Bay: 

My wife of 43 years and I were crossing the street in San Francisco. She was just a few steps ahead of me when a car ran the red light and hit my wife! The vehicle struck her with such force that she became airborne before collapsing on the ground. I was stunned and horrified. She was lying there, and for a minute, I thought she might have died. She had lost consciousness and was not moving. Fortunately, she lived, but she sustained two fractured legs and a significant head injury. She had to stay in the hospital for a few weeks. I thought I had lost her. She is the love of my life, and the thought of losing her was terrifying. Watching her get hit like that was incredibly scary- I think I stopped breathing. Since then, I have become increasingly anxious and unable to sleep as the image of her getting hit is on constant replay in my mind. I’ve had to seek therapy. I know she can file a lawsuit for her injuries, but what about me?

I am so sorry this happened and that you had to witness it. It appears that you are suffering from emotional distress as a result of this incident. You certainly do have a claim for negligent infliction of emotional distress. In California, the law of Negligent Infliction of Emotional distress can flow from two different theories: Bystander Theory and Direct Victim Theory. The Bystander theory requires that the plaintiff contemporaneously observe the injury-causing event. Thing vs. Chusa (1989) 48 Cal.3d 644. The difference between the bystander and the direct victim cases is that the direct victim cases seek emotional distress damages based on the breach of the duty owed to the plaintiff that is “assumed by the Defendant or imposed on the defendant or imposed on the defendant as a matter of law that arises out of a relationship between the two.”  Marlene F. v. Affiliated Psychiatric Medical Clinic, (1989) 48 Cal. 3d 583, 588, 257.

You could recover under the bystander theory. To prove negligent infliction of emotional distress as a bystander, you must show: 1) that you are closely related to the victim, 2) the defendant’s conduct negligently caused injury or death to the victim, 3) that you were present at the scene of the injury (“zone of danger”) when it occurred and were aware that the victim was being injured, and 4) as a result of the injury, you reasonably suffered severe emotional distress beyond that which would be anticipated in a disinterested witness.  Dillon v. Legg (1968) 68 Cal.2d 728. 

In your case, you witnessed your wife suffer life-threatening injuries as a result of the negligent driver who ran the red light. You were in the zone of danger as you were present when the collision occurred and are experiencing severe emotional distress as a result. Thus, you can recover any medical bills, bills for psychological counseling, lost wages, and pain and suffering because of the accident. 

We hope you and your spouse continue to get better. 

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Hit and Run or Uninsured/Underinsured Motorist Insurance Claims

Written By Christopher B. Dolan and Kimberly E. Levy

This week’s question comes from Kate R. from Oakland:

I was rear-ended on the freeway a few days ago and the driver that hit me fled the scene. The police took a report but have not been able to identify the other driver. I ended up in the hospital with some serious injuries. I am not going to be able to go back to work for a few weeks, at least. The bills for my medical care are going to start piling up. I have no idea what to do. Please help.

Thank you for reaching out, Kate. We’re sorry to hear about what happened to you and hope that you make a speedy recovery. Navigating the claim process for a hit and run case can be complicated. The good news is that you may have purchased several types of insurance coverages that can help you through this difficult time.

Medical Payments Coverage (“Med Pay”):
What is it?

Med pay is an optional coverage that is part of your individual car insurance policy. Med pay covers reasonable and necessary medical bills when you (or your passengers) are injured in an accident. Med pay will even cover your reasonably necessary medical expenses if you are injured as a pedestrian or passenger in someone else’s car. This coverage applies regardless of who is at fault for the collision.

How does it work?
There are two ways that med pay typically works:

  1. You go to the medical provider of your choice and the provider bills the med pay directly as if it were health insurance; or
  2. You submit bills and records to your insurance company for reimbursement of paid or outstanding bills.

Why do I need this coverage if I have health insurance?
There are several reasons this coverage is useful even if you have health insurance.

  1. First, health insurance often leaves you to pick up the tab for co-pays and co-insurance amounts. With med pay coverage, you can be reimbursed for these out-of-pocket costs.
  2. Second, med pay enables injured people to seek treatment that would not normally be covered by their health insurance policy, i.e., acupuncture, massage, and other alternative treatments. Finally, med pay allows you to seek a second opinion by a medical provider of your choice which is often beneficial when your health insurance coverage is an HMO plan.

Uninsured/Underinsured Motorist Bodily Injury Coverage (“UM/UIM”):
What is it?

Uninsured/underinsured motorist coverage applies when another driver is at fault for a collision but either has no insurance or not enough insurance to cover the injured person’s medical bills and other damages. Importantly, this coverage also applies in hit and run cases, such as yours, when the identity of the at fault driver cannot be ascertained.  

In order to protect yourself against hit and run drivers, uninsured drivers, and drivers carrying the minimum amount of liability insurance (which is $15,000 in California), it is best to make sure you protect yourself with uninsured/underinsured coverage.  

How does it work?
With this coverage, your own insurance company covers your losses as if it were the at-fault driver—the insurance company steps into the shoes of the at-fault driver. In a UM/UIM case, you will make a claim against your own insurance company up to the amount of your purchased coverage. In some ways, UM/UIM cases are advantageous. Because you are in a contract with your insurance company, your insurance company has a duty to treat you fairly and regard your interests equally as its own interests. Unfortunately, you will not be entitled to a jury trial on these cases. UM/UIM cases are typically resolved by settlement or through an arbitration process (trial in front of a neutral “judge” agreed upon by the parties).

If you are injured in a hit and run accident, specific rules apply in order to trigger UM coverage. 

  1. First, there must have been contact between your vehicle and the hit and run vehicle.
  2. Second, within 24 hours after the accident, it must be reported to the police for the jurisdiction in which the accident happened.
  3. Third, within 30 days of the accident, you must provide your insurance company with a sworn statement that you were injured and that the person causing injury is unknown. Facts explaining the same must be provided in the sworn statement. Typically, a copy of the police report showing hit and run will be sufficient to meet this requirement. These requirements are set forth in California Insurance Code section 11580.2(b)(1) and (2).

Will making a claim increase my insurance premiums?
In California, it is illegal for an insurance company to raise rates when a policyholder brings a claim and was not at fault.  (California Insurance Code Section 491). As long as the other driver was the cause of the accident, your premiums should not increase. If there is an increase in the cost of your coverage based on claims activity made necessary by the fault of another, this should be reported to the California Department of Insurance.  

Do not concern yourself with the fact that payment is coming from your own insurance company versus the adverse driver or his/her/their insurance company. This is coverage that you have paid for and the insurance company is best equipped to bear the loss. The insurance company is free to seek reimbursement from an uninsured driver should that be feasible.

How long do I have to resolve my case?
Generally, in a UM case, you have two years from the date of the incident to either settle your claim or make a “demand for arbitration” – a process where you formally notify your insurance company that you would like to resolve your case by arbitration. Your insurance company has an obligation to keep you informed of these deadlines and requirements throughout the process.

So often, we think of insurance as a means to protect our assets and property. It is equally important, however, to remember to protect yourself against uninsured and underinsured motorists who may cause you harm. Review your insurance policy to see if you have the applicable coverage.  

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My First Auto Accident. What Do I Do?

Written By Christopher B. Dolan and Corinne D. Orquiola

This week’s question comes from Angelica H. in Pacific Heights who asks: I was at a complete stop at a red traffic light at the intersection of Market Street and 6th Street, when suddenly and without a warning, the vehicle directly in front of me reversed straight into my vehicle when the light turned green. The forceful impact caused me to crash into the vehicle behind me, leaving me sandwiched in between the two vehicles. The front of my vehicle is destroyed. To make things worse I began to feel excruciating pain in my right wrist, and it became swollen immediately after the impact. This is my first car accident, and I don’t know where to begin. I exchanged information with the other drivers and gave a statement to the reporting police officer. All I know is that my car is undriveable and I have a mounting pile of medical bills that I have not been able to pay since I had to take time off work after my wrist surgery. I realize that this is not a typical car accident, but is there anything I can do to recover for my medical bills, lost wages, and pain and suffering?

Dear Angelica: The short answer is yes, you may seek compensation for the economic and non-economic damages you suffered as a result of this collision. You did the right thing exchanging information with other drivers. After a car accident, it is very important to obtain the other driver’s information which includes:

  • Full Name
  • License Plate
  • Car Insurance Information

It is also important to obtain a copy of the police report and to take pictures of your injuries, the property damage, and the accident scene itself to give context. 

Under California Vehicle Code (CVC) section 21451 (a), a driver facing a circular green signal, “…shall proceed straight through or turn right or left or make a U-turn unless a sign prohibits a U-turn.” Furthermore, CVC 22106 states that, “No person shall start a vehicle stopped, standing, or parked on a highway, nor shall any person back a vehicle on a highway until such movement can be made with reasonable safety.”

In your case, the driver violated these two sections because they failed to proceed straight through the intersection as mandated by CVC 21451(a). Second, they did not start the vehicle from a stop with reasonable safety because they did not notice that the vehicle was in reverse gear. Clearly, they were operating the vehicle negligently.

If you were injured in a car accident because of another’s negligent driving, you have the right to seek compensation for your economic and non-economic damages. Economic damages include tangible losses that can be easily calculated such as medical expenses, lost wages, and property damage. In regard to the medical expenses you have incurred, you are entitled to recover the amount paid by your health insurance as well as any out-of-pocket expenses. For this reason, it is important to keep copies of your medical expenses, including but not limited to:

  • medical bills
  • receipts for pain medication, and
  • receipts for any medical devices you had to purchase as a result of the accident.

Similarly, you will want to gather information to support your loss of wages claim such as pay stubs or a letter from your employer confirming the dates you missed from work as a result of this collision. 

Non-economic damages are more difficult to quantify as those damages relate to the types of harm that do not come with a receipt. Under California Jury instruction 3905A, you may recover for non-economic damages which include things like pain and suffering, physical impairment, disfigurement, grief, anxiety, humiliation, inconvenience and emotional distress. Be mindful of how your life has changed since the accident and take note of activities you are unable to do as a result of your injury as they will form part of your non-economic claim. 

We have handled numerous cases in which individuals have suffered bodily injuries due car accidents. However, this column does not constitute legal advice and it is important that you consult with an experienced trial lawyer as soon as possible, especially if you suffered personal injuries.

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A Closer Look at California’s New Laws for 2021

Written By Christopher B. Dolan and Jeremy M. Jessup

This week’s question comes from Johanna in Truckee who asks: Every new year there are hordes of new laws that are enacted but I find it difficult to know what they are. Is there any way you can provide some highlights of California’s new laws?

Dear Johanna: Out with the old and in with the new, as the saying goes, and as you pointed out — and that includes a number of new laws that went into effect on January 1st here in California or are going to come into effect shortly. There were hundreds of bills that were signed into law and some that were voted on by the people. A number of these will not start until later this year, such as being prohibited from buying more than one semiautomatic rifle in a 30-day period. Some may begin even later, like a flavored-tobacco ban that was set to go into effect on the 1st, probably will not be adopted until some time in 2022.

Here are some of the laws that have gone or are going into effect for 2021:

Additional penalties for texting and driving

It’s already the law that you must use hands free devices while driving, whether you’re talking or texting. Now the punishment is getting stricter. Two convictions in 36 months will add a point to your record starting in July 2021.

 Hot car rules

It’s already against the law to leave a child under 6 in a car unattended. Now those who try to help are protected from civil or criminal liability for property damage or trespassing if they break into the car to rescue the child.

Minimum wage 

Starting January 1s California’s minimum wage is $14 at companies with 26 or more employees and $13 at companies smaller than that. This is a $1 increase from last year’s hourly minimum. Some cities, like Palo Alto, Sonoma and Mountain View have already increased their minimum wages to $15 or more this year.

Expansion of paid family-leave benefits

Family-leave benefits for nearly six million residents have been expanded. In addition, Californians who work for an employer with at least five employees are included in job protection benefits. The new law also expands on the potential reasons for taking leave, making it possible for workers affected by COVID-19 to take time off to care for a parent, sibling or grandchild.

Transgender protections

The Transgender Respect, Agency and Dignity Act allows incarcerated transgender, gender-nonconforming and intersex individuals to be housed and searched according to their gender identity.

Workplace COVID-19 protections

The new law requires employers to take specific actions, like written notifications to employees, within one business day of a potential exposure to COVID-19 in the workplace. The notification must be written in English and another language, if applicable. This law does have a sunset provision, which is the end of 2023.

Inmate Firefighters

After a devastating fire season, when many inmate firefighters were released early because of the pandemic, prisoner firefighting crews served a crucial role; a new law will now allow nonviolent offenders to petition to get their records expunged and to use their training to gain employment as firefighters. Previously, inmates were precluded because of their criminal records from becoming firefighters upon release.

Parolees’ right to vote

Voters passed Proposition 17 in the November election, which restores felons’ right to vote after the completion of their sentence.

Youth criminal justice reforms

Starting in July, the state will be phasing out juvenile prisons. In addition, a new law prevents kids who are acting out in school from being referred to probation programs or becoming a ward of the court; instead, they’ll be referred to community support services. Finally, it will become easier for minors in police custody to get legal counsel before being questioned.

The three remaining state youth facilities will no longer accept newly convicted youth after July 2021. The state will be transferring the responsibility of the convicted youth back to the counties. 

Student loan borrowers

Effective July 2021 will be Assembly Bill 376 which offers new protections for student loan borrowers and makes it harder for lenders to take advantage of people who may not know all their rights or how to navigate the system.

Demilitarizing police uniforms

Law enforcement will no longer be allowed to wear uniforms that have camouflage or otherwise resemble military uniforms. This law does not apply to members of various tactical response teams, such as SWAT, nor does it apply to the Department of Fish and Wildlife.

Bans on certain police restraint tactics

AB 1196 eliminates the use of any chokehold or carotid restraint technique by law enforcement. The bill prohibits any state or local law enforcement agency, including campus police, from authorizing the use of a carotid restraint or chokehold. The bill defines a chokehold as any defensive tactic involving direct pressure applied to a person’s trachea. It also defines a, “carotid restraint,” as any restraint, hold, or other defensive tactic that applies pressure to the sides of a person’s neck, which involves a substantial risk of restricting blood flow, and that may render the person unconscious.

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Safety Measures for Cyclists and Truck Drivers

Written By: Christopher B. Dolan and Emile A. Davis 

This week’s question comes from William B. in Berkeley who asks: On the news I heard about a truck that collided with a group of cyclists. It was horrendous. Some cyclists were terribly injured and one even died. I realize, as a cyclist, how vulnerable we cyclists are, even when we are being cautious and aware. What protections do we have if a truck takes us out? Anything?

Dear William: Thank you for this important question about trucks, cycle safety and protections. As a cyclist myself, and having represented hundreds of cyclists, I am all too aware of the dangers caused by automobiles in general and the particular issues raised by large trucks. To answer your question, I look to three categories of protection:

1) steps that can be taken, as a cyclist, to avoid accidents with trucks;

2) rules truck drivers must follow to ensure they are alert and aware; and, finally, if the first two fail,

3) remedies and inquiries to seek justice after a collision.

Steps that Cyclists Can Take to Avoid Accidents

The sad truth is that many motorists simply do not see cyclists. It is not merely inattention, but a neurologic phenomenon sometimes called, “filling in.”  People’s brains are continuously anticipating what we will see. If an object is obstructed, the brain simply, “fills in,” the missing information with its best guess. There are several steps a cyclist can take to make sure they are actually seen. The easiest is to use anti-camouflage; wear bright colors and reflective gear, have lights and reflectors on a bicycle in order to stand out from the environment and draw attention to yourself. That way the cyclist is seen and the driver does not just, “fill in,” the scenery. 

You hit upon perhaps the most important other steps that can be taken – actively being cautious and using situational awareness to know when danger is increasing. These are key to a cyclist’s safety in relation to not only trucks, but traffic in general as well as roadway defects.

Department of Transportation Rules to Keep Truck Drivers Safe and Alert

Often, thankfully, long haul truck drivers are some of the best and most experienced drivers on the road. Additionally truck drivers are subject to many specific rules and regulations designed to make sure they are alert and driving safely. The Federal Department of Transportation, through the FMCSA (Federal Motor Carrier Safety Administration) has regulatory authority over truck drivers. They have a number of safety-based regulations affecting property-carrying vehicles. Initially, the driver must be at least 21 years of age, possess a commercial license and complete a road test. Any driver who has been convicted of a DUI or transporting drugs would be disqualified from employment in this field.

Once a driver is hired, they must record and certify in a log their driving start and end times as well as days off to demonstrate that they have followed basic safety requirements such as:  

  1. A driver must have had 10 hours off duty before beginning a shift.
  2. A driver may not drive after a period of 14 consecutive hours until he has had 10 hours off duty.
  3. A driver may drive for a total of 11 hours out of this period of 14 consecutive hours.
  4. A driver may not be on duty for a period of more than 60 hours in 7 consecutive days or 70 hours in 8 consecutive days.

The requirements are even more stringent if the driver is transporting passengers. A complete list of DOT regulations can be found at: https://www.fmcsa.dot.gov/regulations/title49/b/5/3

Recovery if a Collision Does Occur

Unfortunately the above precautions are not always enough and a cyclist is injured by a truck. When that occurs the law provides that a responsible party pay for the damages suffered by the person injured.  The law anticipates that trucks have the potential to cause greater harm than typical automobiles. Insurance coverage for trucks, unlike the relatively small insurance policies required by automobiles, are more substantial. Large commercial trucks transporting goods are required to carry a minimum of $750,000 in available insurance. Companies are often also encouraged to carry additional Commercial General Liability insurance to protect their assets, and individuals injured because of the potential trucks have for creating very serious injury, such as the collision that prompted you to write.

To obtain justice for a person injured by a truck a good lawyer will confirm all available insurance policies. They will also investigate to determine if the DOT safety regulations were properly followed.  Where there was a failure, it is important to determine if it was merely a failure of the truck driver to do the right thing, or, whether the employer of the driver set expectations or policies that required a driver to push the limits of the regulations and to drive unsafely. Similarly, a company that employs truck drivers may not properly screen or train drivers appropriately for the type of driving they are tasked to do. Employer failures of this type can open the employer up to the potential liability to compensate an injured person beyond the limits of an insurance policy.

As with many activities, if everyone does their part to avoid accidents, they become far less likely. However, they do still occur. If you or someone you know is injured by a truck driver, while cycling or otherwise, consult an attorney such as those at the Dolan Law Firm who are experienced in that area of law.

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California law addresses safety for bicyclists

Written by: Christopher Dolan and Taylor French

Drivers and bicyclists must coexist in an environment that, at times, can feel too crowded for both.

California has enacted several laws throughout the years in an effort to ensure the safety of those sharing the roads, but none is more important than the Three Feet for Safety Act. In 2013, California’s legislature passed the act, codified as California Vehicle Code section 21760, requiring drivers to give bicyclists a minimum of three feet between the motor vehicle and bicycle when passing in the same direction on a highway. This law became operative on Sept. 16, 2014.

Prior to the act, the California Department of Motor Vehicles had already provided that maintaining three feet between cars and bicycles was the best practice, but the act gave law enforcement the ability to stop a motorist and issue an infraction for failing to keep this distance. An infraction issued for a violation of California Vehicle Code section 21760 results in a minimum fine of $35. If a collision occurs between a car and bicycle causing great bodily injury to the bicyclist, the driver of the car will be issued a $220 fine. In addition to these fines, however, the motorist will also likely incur court fees and/or other administrative fees, which could significantly increase the cost of a violation.

While the act is as straightforward as it sounds — a car may not pass a bicycle traveling in the same direction unless it provides, at a minimum, three feet between the car and the bicycle — there is another important caveat. Subsection D of California Vehicle Code section 21760 states:

(d) “If a driver is unable to pass with three feet of distance due to traffic or roadway conditions, the driver shall slow to a speed that is reasonable and prudent, and may pass only when doing so would not endanger the safety of the operator of the bicycle, taking into account the size and speed of the motor vehicle and bicycle, traffic conditions, weather, visibility, and surface and width of the highway.”

The language of subsection D appears to give some discretion to officers stopping motorists for passing too closely and to drivers when deciding whether to pass a bicyclist. Ultimately, this language also gives judges discretion in issuing fines, should a driver contest the violation.

In addition to an infraction, a violation of California Vehicle Code section 21760 may carry additional ramifications that drivers may not anticipate. For example, if a driver hits and injures a bicyclist in violation of California Vehicle Code section 21760, the driver can be found to be, “negligent per se,” in a civil lawsuit.

Negligence per se is a legal doctrine establishing a presumption of negligence for a violation of a statute, ordinance or regulation. If a defendant in a civil lawsuit is found to have violated a statute, the violation caused the type of harm the statute was designed to protect, and the plaintiff is of the class of people the statute was designed to protect, then the defendant is considered negligent per se. In other words, as a matter of law and as applicable here, a defendant driver who violated California Vehicle Code section 21760 — thereby causing bodily injuries to a bicyclist — could be considered negligent and liable for those injuries and the resulting damages.

So, what can drivers do to ensure they are maintaining at least three feet from bicyclists and to avoid a violation of California Vehicle Code section 21760? Most importantly, if in doubt, drivers should assume they are too close to a bicyclist. Remember, the act provides the minimum distance from a bicyclist that a driver must maintain, but there are certainly situations where three feet is simply not enough space.

Drivers should consider the amount of time it takes to bring a car to a complete stop to avoid hitting a bicyclist. When passing, drivers should consider changing lanes rather than attempting to sneak past bicyclists. And remember, drivers can only pass a bicyclist when it is safe to do so, and risking a bicyclist’s life to save a few extra minutes during one’s commute is never a risk worth taking.

Finally, what can bicyclists do to ensure a safe distance around them? Bicyclists should always make sure they are visible and should never assume a driver will maintain a three-foot minimum distance.

While the act puts the burden on the driver to maintain the three-foot buffer, bicyclists should always make sure to monitor the distance and avoid careless, distracted or inexperienced drivers. Bicyclists can even wear a “Three Feet” bike jersey to remind drivers of the distance requirement. It just may save a life and get the bicyclist some compliments in the process!

 

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Consequences of Vehicular Homicide

Jane in San Rafael asks: “I am an avid bicyclist and supporter of the Marin and San Francisco Bike Coalitions. It is frightening to ride on city streets. Last week there was a DUI-related fatality in Marin and another bike death in Windsor. What does the law do to punish people that kill bicyclists? Maybe letting readers know of the penalties might help them think twice and prevent more of these deaths.”

 

Jane, as a supporter of the Marin, Oakland, and San Francisco Bike Coalitions who rides with his children, I am horrified to see the increase in injury and death occurring in the cycling community. I am intimately familiar with the case in Windsor: we have been retained to represent the family of the young woman who was killed by a large truck. The Marin case, involving the drunk driver, is very tragic: people ruining their own lives by drinking is a shame, and when they kill innocent people on top of that, it’s criminal.

 

According to the National Highway Traffic Safety Administration, 3602 people were killed in California motor vehicle collisions in 2017. The majority of fatal collisions involve more than one vehicle and other vehicle occupants are the most likely victims of fatal collisions, followed by pedestrians, motorcyclists, and bicyclists. Thirty-one percent of these involved at least one driver with a blood alcohol level above the legal limit and 20 percent involved a driver with at least twice the legal limit. California Vehicle Code 23152 makes it unlawful for a person who is under the influence of any alcoholic beverage or drug to drive a vehicle while intoxicated, which is presumed at a blood alcohol level of 0.08 percent or greater, by weight. Commercial drivers, and drivers carrying passengers in exchange for compensation (taxis, Uber, Lyft, etc.) are presumed to be intoxicated if they have a blood alcohol level of .04 percent or greater.

 

Accidental deaths caused by motor vehicles generally fall under the rubric of vehicular manslaughter. California Penal Code (CPC) Section 192(c) defines vehicular manslaughter as the unlawful killing of a human being while: (1) driving a vehicle in the commission of an unlawful act (not a felony); or (2) driving a vehicle in the commission of a lawful act which might produce death in an unlawful manner. Vehicular manslaughter may be committed with or without gross negligence, defined as so slight a degree of care as to raise a presumption of a conscious indifference to the consequences. Causing death while perpetrating an accident insurance scheme, where the vehicular collision was knowingly caused for financial gain, may also be tried as either vehicular manslaughter or murder. If the driver is acting lawfully in a lawful manner, a resulting death is not considered a homicide.

 

According to CPC Section 193, the sentencing and punishment for vehicular manslaughter depends upon whether the offense is charged as a misdemeanor or felony. A misdemeanor vehicular manslaughter conviction is punishable by up to one year in county jail. A felony vehicular manslaughter conviction is punishable by up to six years in state prison. We recently handled a case on Highway 680 where a slow-moving construction crane, without its lights on and without warning or guides, entered the freeway from a staging area directly into 65 mile per hour traffic, causing death when another driver collided into the rear of the crane. In that case, the defendant crane driver plead no contest to vehicular manslaughter and was subject to a year of house arrest. The driver and the insurance company representing the business paid many millions to compensate the family for the loss of their husband and father.

 

Cases where the driver was intoxicated often command more severe penalties under CPC Section 191.5 defining “gross vehicular manslaughter while intoxicated.” Gross vehicular manslaughter while intoxicated, if committed without malice, is punishable by imprisonment in the state prison for up to four years; with malice, for up to 10 years. A person with one or more prior convictions of drunk or reckless driving who causes a fatality is subject to imprisonment in state prison for a term of 15 years to life. Gross vehicular manslaughter while intoxicated may be charged even if the driver’s blood alcohol level does not exceed the legal limit, as well as when an impaired driver is not the sole cause of death. In one case, a man with a blood alcohol level of .03 percent was traveling late at night on his way home from a concert, proceeded to fall asleep and rear-ended a car. After the initial accident, the occupants were able to get safely to the shoulder, but a truck driver, not paying attention, swerved to avoid collision with the car and killed the passenger of one of the vehicles. The impaired driver who caused the initial collision was charged with gross vehicular manslaughter while intoxicated.

 

Finally, if the driver’s conduct rises to a such level of wantonness as to support a finding of “implied malice,” it may be prosecuted as second degree murder. “Malice” is the mental state that distinguishes manslaughter, caused by the perpetrator’s criminal negligence, from murder, in which the perpetrator either intends to kill or acts deliberately with conscious disregard for human life despite knowledge that their conduct is dangerous. The California Supreme Court, in its seminal 1981 decision, People v. Watson, held that the statutory language crafted specifically for vehicular manslaughter does not preclude a charge of second degree murder where a perpetrator exhibited subjective appreciation of a high degree of risk to human life. In that case, the defendant had driven over 80 miles per hour in a 35 mile per hour zone with more than twice the legal blood alcohol level. When a driver willfully consumes alcohol to the point of intoxication, knowing that they will later operate a motor vehicle, they can be held to exhibit a conscious disregard for human life. The capability of the intoxicated driver to form malice in the act of reckless driving may later be evaluated with respect to a diminished capacity defense.

 

The vehicular homicide cases I have handled have involved people from all races and socioeconomic backgrounds. The law doesn’t discriminate between a rich guy driving a Porsche and a poor laborer driving a beat-up pickup truck. District Attorneys have little sympathy for drunks or unlawful drivers who cause harm or death. I hope that anyone reading this will refrain from driving even if they have had “only a couple of beers.” My heart and prayers go out to the families of the bicyclists who have been so senselessly killed.

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What Are Your Rights And Responsibilities When Renting Scoot Vehicles

This week’s question comes from James in the Sunset who asks: “My girlfriend has a Vespa and we want to go riding together. I have seen these “Scoot” vehicles riding all over town. I looked online and have some questions about renting one of these things that I thought I would ask you as I don’t want to get into any trouble riding. I don’t have a motorcycle license and don’t have motorcycle insurance. I have zero experience riding a motorcycle or scooter. I also weigh 265 lbs. What happens if I rent one of these things and get into an accident or if it gets knocked over by someone? What are my rights/responsibilities?”

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