A Misdemeanor?!!!!

[DynamicD74]

http://www.cnn.com/2005/US/11/26/textmessage.death.ap/index.html

This is outrageous! Regardless of what he was doing, or his age, "inattention to the road," is a gross understatement. I'm certainly not an attorney, but I would assume this would fall under something akin to vehicular homicide or manslaughter! (It makes me wonder what the charge would be if this person had hit another car, and this resulted in a fatality.) A person lost his life in this incident, apparently through no fault of his own, other than attempting to share the road with someone who was negligent in their duty to simply pay attention to the road, and obviously this had tragic and lethal consequences!

[georgiaboy]

It seems a misdemeanor would apply only to the moving violation. It would not address the loss of life. It seems the goverment in charge would rather allow a civil case to judge "wrongful death."

[slvoid]

I might not be the brightest person in the world, in fact, I'm not, but...

What would prevent someone from getting in a car, spilling hot coffee on their lap while following this kid, then running him over? And how is the law going to prevent said driver from getting away with murder?

[georgiaboy]

I am not well-versed in law or court proceedings. Since the victim passed away and is not able to give an account of what happened the authorities can take the road of least resistance.

Is that what is happening here?

[filtersweep]

I am not well-versed in law or court proceedings. Since the victim passed away and is not able to give an account of what happened the authorities can take the road of least resistance.

Is that what is happening here?


What is happening is that killing cyclists is decriminalized. You can bet that if someone accidentally shot some kids in a playground while cleaning a gun that was legal to carry, he'd be lynched.

[Guest]

I am not well-versed in law or court proceedings. Since the victim passed away and is not able to give an account of what happened the authorities can take the road of least resistance.

Is that what is happening here?

What, they don't take witnesses into account?

Sometimes, it's BETTER to take the witness statements than the victim's, since they may not have seen the vehicle coming that hit them, or their memory is affected by the accident, etc.

Koffee

[genec]

This action is one of my fears... that cell phones and other devices have made drivers very inattenative and that overtaking type collisions will occur more and more.

Today's cars are filled with distractions... from CD players to GPSs to Cell phones to food and conversation... add to this the fact that today's autos are typically very well sound proofed and if the AC is on, the motorist is all but cut off from their surroundings except by sight.... and any of the distractions I mentioned, takes the motorists eyes off the road.

Now put a cyclist on the road in front of a vehicle... with the cyclist "acting vehicular," and you have the potential for these types of bad situations.

Compound that situation with cracks in the pavement and rocks and debris in the road, couple it with impatience and in this case inexperience...

What more can I say.

It is amazing more cyclists don't get hurt.

[georgiaboy]

What, they don't take witnesses into account?

Sometimes, it's BETTER to take the witness statements than the victim's, since they may not have seen the vehicle coming that hit them, or their memory is affected by the accident, etc.

Koffee

Hopefully one of our bikeforum members who has some insight into these matters will clarify the issue. It seems the issue lies with formally making a charge against the driver of the automobile. In a normal proceeding the one who incurred damages lodges a complaint. In this case that person is not alive. A witness can testify to what they saw and heard but can not initiate the complaint. Law enforcment could do that based on testimony of the witnesses or evidence. However, it seems that the DA is not interested in a long, costly, litigation.

[San Rensho]

Its just pure cowardice on the part of the state attorney in only charging him with a misdemeanor. Negligent homicide in every state can be a felony, but the state attorney has discretion on whether to charge as a felony or misdemeanor.

Studies of cell-phone use while driving have shown that the driver has reaction times and driving patterns almost identical to drivers who are legally intoxicated. If this little ******* had been drunk he would have been charged with a felony, the state attorney, in righteous indignation, would have gone on about the "scourge of drunk driving" and "sending a message" to drunk drivers and the little prick would be looking at 5+ years in state prison. But since this was an "accident" caused by one of those nifty new electronic "miracles" and the victim was "only" a bicyclist, we can't "ruin the young mans life because of a youthful indiscretion." What about the cyclist? There I'm done ranting.

[KeithA]

F**k!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Sorry, but this just pisses me off. A misdemeanor???!!!
I wonder if it will carry over to a civil court. How many on a jury will be cyclists? How many will be drivers who want to rationalize their own use of cell phones while driving? How many will secretly harbor feelings that roads aren't the place for cyclists to be?

Talk about travesty.

[some_guy282]

What is happening is that killing cyclists is decriminalized. You can bet that if someone accidentally shot some kids in a playground while cleaning a gun that was legal to carry, he'd be lynched.

That's a good point. There is a social aspect to this. The law isn't blind. Just look at the "That was one lucky 14 year old" thread.

[KeithA]

One more thing: It's not just with cyclists. Too many in society are given the message that consequences just don't exist anymore. "I didn't mean to" shouldn't exonerate one from cupability. A good man lost his life for God sakes!!!

[Blue Order]

Its just pure cowardice on the part of the state attorney in only charging him with a misdemeanor. Negligent homicide in every state can be a felony, but the state attorney has discretion on whether to charge as a felony or misdemeanor.

Studies of cell-phone use while driving have shown that the driver has reaction times and driving patterns almost identical to drivers who are legally intoxicated. If this little ******* had been drunk he would have been charged with a felony, the state attorney, in righteous indignation, would have gone on about the "scourge of drunk driving" and "sending a message" to drunk drivers and the little prick would be looking at 5+ years in state prison. But since this was an "accident" caused by one of those nifty new electronic "miracles" and the victim was "only" a bicyclist, we can't "ruin the young mans life because of a youthful indiscretion." What about the cyclist? There I'm done ranting.Playing devil's advocate here (you're an attorney, I'm a law student), the D.A. probably took the easy way out. It would be a much harder case to try to get a jury to return a felony conviction on this kid. First time offender, inexperienced youthful driver, pillar of the community, youthful indiscretion...

You know, I want drivers to pay more attention. I want them to put down their cell phones, put down their CDs, put down their maps, and DRIVE. But I've been there, and I know that anybody who drives has been there. Adjusting the stereo, trying to follow a map, reachin for something I've dropped. And when I get my eyes back on the road, I think about how stupid I was to get distracted like that, and how lucky I was that nobody got hurt. You get a jury of 12 people who have all had those moments, and this kid who made a stupid mistake, and it all adds up to being easier to convict on a misdemeanor charge. I'm not saying it's right, I'm just saying it would be a much tougher row to hoe to throw the book at this kid.

The real problem here, in my opinion, isn't a spineless D.A., it's the spineless legislatures in this country that refuse to criminalize driver distractions-- cell phones, applying makeup, shaving, reading. The primary business of the operator is, and must be, the fully attentive operation of the vehicle. Everything else should be put aside until the vehicle is at rest and not obstructing traffic. Now try and find a legislature that has the intestinal fortitude to pass that legislation.

[slvoid]

It's funny because with automobiles, things seem to end up on the extreme sides of the argument.
On one hand, you have people losing points and being ticketting hundreds of dollars for very minor things. On the other, you have people who literally get away with murder.

I think the problem is a) no one wants to assume any responsibility anymore and b) everyone drives.

One more thing: It's not just with cyclists. Too many in society are given the message that consequences just don't exist anymore. "I didn't mean to" shouldn't exonerate one from cupability. A good man lost his life for God sakes!!!

[jhota]

In a normal proceeding the one who incurred damages lodges a complaint.

well, in that case, i think every one of us on this board sydney has helped or entertained has incurred damages.

between four boards, there are over 400 posts in memorial threads regarding sydney. maybe we all need to write (snail mail) the DA with our concerns, as well as everyone on the other boards sydney frequented. i realize a lot of those are probably multiple posts by single individuals, but if i got 300+ letters or so (snail mail) on a case i was prosecuting, i'd maybe scrutinize my actions a little closer than normal. make it obvious that the freaking world is watching this case. heck, e-mail him a link to the Swedish news item as well.

[georgiaboy]

well, in that case, i think every one of us on this board sydney has helped or entertained has incurred damages.

between four boards, there are over 400 posts in memorial threads regarding sydney. maybe we all need to write (snail mail) the DA with our concerns, as well as everyone on the other boards sydney frequented. i realize a lot of those are probably multiple posts by single individuals, but if i got 300+ letters or so (snail mail) on a case i was prosecuting, i'd maybe scrutinize my actions a little closer than normal. make it obvious that the freaking world is watching this case. heck, e-mail him a link to the Swedish news item as well.

What the driver will be charged with will not be a matter of record until the hearing in court. There is still time to send emails to stress the seriousness and the far reaching consequences of this incident. The DA should be concerned with the well being of citizens in their district as regards the law being upheld. To charge this driver although young with a misdemeanor causes the scales of justice to become uneven with no regard for the rights for cyclist while the motorists get leniency. This will send a message to that cyclists in this district will not be protected by the law. As a post in this thread mentioned earlier the it may be hard to convict a felony charge. It seems to me if the DA does not stand up for the rights of Jim Price as a citizen of their district they have effectively resigned from office. The persons who live as neighbors to Jim Price should be the first to stand up for the fellow citizen as the rights of everyone are affected by the conduct of this DA. IMHO, of course.

Here is the link for ones who want to email the DA for Douglas County

http://www.bikeforums.net/showpost.php?p=1852574&postcount=175

[watchman]

I can tell you that in North Carolina, Death by Vehicle is only a felony when the driver is impaired and that the impairment is the proximate cause of death. All else is considered Misdemeanor Death by Vehicle when caused by a traffic/driving violation. Of course there can be additional factors to an incident that would add addtional charges i.e. hit/run, street racing, etc. So if the only crime this kid did was being inattentive (careless driving), then it would be considered Misdemeanor Death by Vehicle. I would guess that it is pretty similar in other states as well.

[N_C]

I am not advocating what he did was right, or saying what he did was not wrong. I am sad that a cyclist was killed in this manner. Of course my opinion of this is based on the facts I have seen in the news. I mean who knows what is being kept from us? I am not defending the mistakes the driver made.

Also keep in mind it is possible the cyclist made some mistakes too, like I said we do not know what the news is keeping from us or if they are telling all sides of the story. I do have some doubts about that.

So please do not get the wrong impression when I say what I'm going to say next.

This was not a murder! So people need to to saying that it was. Nor was this intentional, so folks need to stop saying that too. This was an accident, something that is not intentional or planned out in advance. A case of 2 people being in the wrong place at the wrong time, at the same time for both, circumstances were in place for the interaction between the 2 that caused what happend to happen. It was not planned out in advance or done on purpose.

Yes, the driver was distracted when he should not have been. Yes, that was a mistake on his part. A cyclist died as a result of these mistakes & maybe even some of his own. The driver was charged or will be charged based on what ever laws he violated under the law. Nothing more, nothing less. He will also pay what ever price the justice system allows under the law.

I do not feel it appropriate that we remember the cyclist by arguing over the circumstances of his death. Do you think he would really want that? I don't. I think it best that we honor him by remembering him in a positive but honest sense. That I think is what he would want. Let the law handle the legal circumstances behind his death, it is not up to us to do their job for them.

If you don't agree & you think this is something that should be considered a murder or manslaughter, voluntary or involuntary then it is up to those of you who live in the area the cyclist was killed to work to change those laws. Keep in mind that it will not retroactive back to when this cyclist was killed, but only help a cyclists killer be brought to justice going forward.

Better yet work to make it illegal for a cell phone to be used in anyway shape or form while operating a vehicle in your area. Make the law so that if one is used & the motorist is in an accident that results in the death of another because the motorist was distracted by the cell phone it is considered involuntary manslaughter with prison time as a punishment.

But for right now this in no way was a murder or manslaughter.

[slvoid]

This was not a murder!

It's not, what I have a problem with is the fact that there is no difference between this and a premeditated murder that can be judged by an outside party.
Granted it is 99.9999% without a doubt an accident, hypothetically speaking, if Sydney managed to piss off some kid online and the kid decided to run him over, there really isn't much to protect him from that.

I don't have a problem with accidents.
I have a problem with preventable accidents. Deaths that result as a consequence of carelessness, a callous attitude towards human life (especially cyclists), and a refusal to accept responsibility for one's own actions before someone does something careless.
I have a problem with the law allowing people to get away with being careless and taking people's lives to a point where the law is so much like an open sponge that anyone can easily premeditate a murder with an automobile and get away with it.

[N_C]

There is not law against carelessness. Nor should there be. If something happens, like running a red light & causing an accident with cross traffic, the law that was broken was failure to obey a traffic control device, not carelessness. That is all the person who ran the light will be charged for. Even if a person dies as as result. I do think however built into the fines that a person pays when they run a red light are in part due to their carelessness. In part it is meant to say, "hey idiot pay attention & stop being so careless".

Just so you know almost every accident is preventable, in fact I believe every accident is preventable.

[Daily Commute]

Its just pure cowardice on the part of the state attorney in only charging him with a misdemeanor. Negligent homicide in every state can be a felony, but the state attorney has discretion on whether to charge as a felony or misdemeanor.

Studies of cell-phone use while driving have shown that the driver has reaction times and driving patterns almost identical to drivers who are legally intoxicated. If this little ******* had been drunk he would have been charged with a felony, the state attorney, in righteous indignation, would have gone on about the "scourge of drunk driving" and "sending a message" to drunk drivers and the little prick would be looking at 5+ years in state prison. But since this was an "accident" caused by one of those nifty new electronic "miracles" and the victim was "only" a bicyclist, we can't "ruin the young mans life because of a youthful indiscretion." What about the cyclist? There I'm done ranting.
Negiligent homicide is a misdemeanor, at least in my state:


(A) No person shall negligently cause the death of another or the unlawful termination of another's pregnancy by means of a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code.
(B) Whoever violates this section is guilty of negligent homicide, a misdemeanor of the first degree.
It's not, what I have a problem with is the fact that there is no difference between this and a premeditated murder that can be judged by an outside party.
Granted it is 99.9999% without a doubt an accident, hypothetically speaking, if Sydney managed to piss off some kid online and the kid decided to run him over, there really isn't much to protect him from that.

I don't have a problem with accidents.
I have a problem with preventable accidents. Deaths that result as a consequence of carelessness, a callous attitude towards human life (especially cyclists), and a refusal to accept responsibility for one's own actions before someone does something careless.
I have a problem with the law allowing people to get away with being careless and taking people's lives to a point where the law is so much like an open sponge that anyone can easily premeditate a murder with an automobile and get away with it.
There is a huge moral difference between someone who intentionally rams a cyclist and someone who carelessly hits a cyclist. I'm glad the law makes that distinction.

[Daily Commute]

People are throwing around terms like "murder" and "negligent homicide." Here are the relevant Colorado Statutes. I'll try to find the misdemeanor statute that the prosecutor supposedly charged the kid with.

At first blush, this looks like vehicular homicide for recklessly killing someone.

Which statute do you think this case falls under?


Vehicular homicide
(1) (a) If a person operates or drives a motor vehicle in a reckless manner, and such conduct is the proximate cause of the death of another, such person commits vehicular homicide.

(b) (I) If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and such conduct is the proximate cause of the death of another, such person commits vehicular homicide. This is a strict liability crime.

(II) For the purposes of this subsection (1), one or more drugs shall mean all substances defined as a drug in section 12-22-303 (13), C.R.S., and all controlled substances defined in section 12-22-303 (7), C.R.S., and glue-sniffing, aerosol inhalation, or the inhalation of any other toxic vapor or vapors as defined in section 18-18-412.

(III) The fact that any person charged with a violation of this subsection (1) is or has been entitled to use one or more drugs under the laws of this state shall not constitute a defense against any charge of violating this subsection (1).

(IV) "Driving under the influence" means driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs affect such person to a degree that such person is substantially incapable, either mentally or physically, or both mentally and physically, of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

(c) Vehicular homicide, in violation of paragraph (a) of this subsection (1), is a class 4 felony. Vehicular homicide, in violation of paragraph (b) of this subsection (1), is a class 3 felony.

(2) In any prosecution for a violation of subsection (1) of this section, the amount of alcohol in the defendant's blood or breath at the time of the commission of the alleged offense, or within a reasonable time thereafter, as shown by analysis of the defendant's blood or breath, shall give rise to the following presumptions:

(a) If there was at such time 0.05 or less grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.05 or less grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was not under the influence of alcohol.

(b) If there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per one hundred milliliters of blood, or if there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per two hundred ten liters of breath, such fact may be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol.

(c) If there was at such time 0.08 or more grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was under the influence of alcohol.

(3) The limitations of subsection (2) of this section shall not be construed as limiting the introduction, reception, or consideration of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol.

(4) (a) If a law enforcement officer has probable cause to believe that any person was driving a motor vehicle in violation of paragraph (b) of subsection (1) of this section, such person, upon the request of the law enforcement officer, shall take, and complete, and cooperate in the completing of any test or tests of such person's blood, breath, saliva, or urine for the purpose of determining the alcoholic or drug content within his or her system. The type of test or tests shall be determined by the law enforcement officer requiring the test or tests. If such person refuses to take, or to complete, or to cooperate in the completing of any such test or tests, such test or tests may be performed at the direction of a law enforcement officer having such probable cause, without such person's authorization or consent. If any person refuses to take or complete, or cooperate in the taking or completing of any test or tests required by this paragraph (a), such person shall be subject to license revocation pursuant to the provisions of section 42-2-126 (2), C.R.S. When such test or tests show that the amount of alcohol in a person's blood was in violation of the limits provided for in section 42-2-126 (2) (a) (I), (2) (a) (I.5), (2) (a) (III), or (2) (a) (IV), C.R.S., such person shall be subject to license revocation pursuant to the provisions of section 42-2-126, C.R.S.

(b) Any person who is required to submit to testing shall cooperate with the person authorized to obtain specimens of his blood, breath, saliva, or urine, including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens. If such person does not cooperate with the person, hospital, clinic, or association authorized to obtain such specimens, including the signing of any release or consent forms, such noncooperation shall be considered a refusal to submit to testing.

(c) The tests shall be administered at the direction of a law enforcement officer having probable cause to believe that the person committed a violation of subparagraph (I) of paragraph (b) of subsection (1) of this section and in accordance with rules and regulations prescribed by the state board of health concerning the health of the person being tested and the accuracy of such testing. Strict compliance with such rules and regulations shall not be a prerequisite to the admissibility of test results at trial unless the court finds that the extent of noncompliance with a board of health rule has so impaired the validity and reliability of the testing method and the test results as to render the evidence inadmissible. In all other circumstances, failure to strictly comply with such rules and regulations shall only be considered in the weight to be given to the test results and not to the admissibility of such test results. It shall not be a prerequisite to the admissibility of test results at trial that the prosecution present testimony concerning the composition of any kit used to obtain blood, urine, saliva, or breath specimens. A sufficient evidentiary foundation concerning the compliance of such kits with the rules and regulations of the department of public health and environment shall be established by the introduction of a copy of the manufacturer's or supplier's certificate of compliance with such rules and regulations if such certificate specifies the contents, sterility, chemical makeup, and amounts of chemicals contained in such kit.

(d) No person except a physician, a registered nurse, a paramedic as certified in part 2 of article 3.5 of title 25, C.R.S., an emergency medical technician as defined in part 1 of article 3.5 of title 25, C.R.S., or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse shall be entitled to withdraw blood for the purpose of determining the alcoholic or drug content therein. In any trial for a violation of paragraph (b) of subsection (1) of this section, testimony of a law enforcement officer that he witnessed the taking of a blood specimen by a person who he reasonably believed was authorized to withdraw blood specimens shall be sufficient evidence that such person was so authorized, and testimony from the person who obtained the blood specimens concerning such person's authorization to obtain blood specimens shall not be a prerequisite to the admissibility of test results concerning the blood specimens obtained. No civil liability shall attach to any person authorized to obtain blood, breath, saliva, or urine specimens or to any hospital, clinic, or association in or for which such specimens are obtained pursuant to this subsection (4) as a result of the act of obtaining such specimens from any person if such specimens were obtained according to the rules and regulations prescribed by the state board of health; except that such provision shall not relieve any such person from liability for negligence in the obtaining of any specimen sample.

(e) Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of his blood or any drug content of his system as provided in this subsection (4). If a test cannot be administered to a person who is unconscious, hospitalized, or undergoing medical treatment because the test would endanger the person's life or health, the law enforcement agency shall be allowed to test any blood, urine, or saliva which was obtained and not utilized by a health care provider and shall have access to that portion of the analysis and results of any tests administered by such provider which shows the alcohol or drug content of the person's blood or any drug content within his system. Such test results shall not be considered privileged communications and the provisions of section 13-90-107, C.R.S., relating to the physician-patient privilege shall not apply. Any person who is dead, in addition to the tests prescribed, shall also have his blood checked for carbon monoxide content and for the presence of drugs, as prescribed by the department of public health and environment. Such information obtained shall be made a part of the accident report.

(f) If a person refuses to take, or to complete, or to cooperate in the completing of any test or tests as provided in this subsection (4) and such person subsequently stands trial for a violation of subsection (1) (b) of this section, the refusal to take or to complete, or to cooperate with the completing of any test or tests shall be admissible into evidence at the trial, and a person may not claim the privilege against self-incrimination with regard to the admission of his refusal to take, or to complete, or to cooperate with the completing of any test or tests.

(g) Notwithstanding any provision in section 42-4-1301.1, C.R.S., concerning requirements which relate to the manner in which tests are administered, the test or tests taken pursuant to the provisions of this section may be used for the purposes of driver's license revocation proceedings under section 42-2-126, C.R.S., and for the purposes of prosecutions for violations of section 42-4-1301 (1) or (2), C.R.S.

(5) In all actions, suits, and judicial proceedings in any court of this state concerning alcohol-related or drug-related traffic offenses, the court shall take judicial notice of methods of testing a person's alcohol or drug level and of the design and operation of devices, as certified by the department of public health and environment, for testing a person's blood, breath, saliva, or urine to determine his alcohol or drug level. This subsection (5) shall not prevent the necessity of establishing during a trial that the testing devices used were working properly and that such testing devices were properly operated. Nothing in this subsection (5) shall preclude a defendant from offering evidence concerning the accuracy of testing devices.


Criminally negligent homicide
Any person who causes the death of another person by conduct amounting to criminal negligence commits criminally negligent homicide which is a class 5 felony.


Manslaughter
(1) A person commits the crime of manslaughter if:

(a) Such person recklessly causes the death of another person; or

(b) Such person intentionally causes or aids another person to commit suicide.

(c) (Deleted by amendment, L. 96, p. 1844, § 13, effective July 1, 1996.)

(2) Manslaughter is a class 4 felony.

(3) This section shall not apply to a person, including a proxy decision-maker as such person is described in section 15-18.5-103, C.R.S., who complies with any advance medical directive in accordance with the provisions of title 15, C.R.S., including a medical durable power of attorney, a living will, or a cardiopulmonary resuscitation (CPR) directive.


Murder in the second degree
(1) A person commits the crime of murder in the second degree if the person knowingly causes the death of a person.

(2) Diminished responsibility due to self-induced intoxication is not a defense to murder in the second degree.

(2.5) (Deleted by amendment, L. 96, p. 1844, § 12, effective July 1, 1996.)

(3) (a) Except as otherwise provided in paragraph (b) of this subsection (3), murder in the second degree is a class 2 felony.

(b) Notwithstanding the provisions of paragraph (a) of this subsection (3), murder in the second degree is a class 3 felony where the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person; but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the killing is a class 2 felony.

(4) A defendant convicted pursuant to subsection (1) of this section shall be sentenced by the court in accordance with the provisions of section 18-1.3-406.



Murder in the first degree
(1) A person commits the crime of murder in the first degree if:

(a) After deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person; or

(b) Acting either alone or with one or more persons, he or she commits or attempts to commit arson, robbery, burglary, kidnapping, sexual assault as prohibited by section 18-3-402, sexual assault in the first or second degree as prohibited by section 18-3-402 or 18-3-403 as those sections existed prior to July 1, 2000, or a class 3 felony for sexual assault on a child as provided in section 18-3-405 (2), or the crime of escape as provided in section 18-8-208, and, in the course of or in furtherance of the crime that he or she is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by anyone; or

(c) By perjury or subornation of perjury he procures the conviction and execution of any innocent person; or

(d) Under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another; or

(e) He or she commits unlawful distribution, dispensation, or sale of a controlled substance to a person under the age of eighteen years on school grounds as provided in section 18-18-407 (2), and the death of such person is caused by the use of such controlled substance; or

(f) The person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the victim.

(2) It is an affirmative defense to a charge of violating subsection (1) (b) of this section that the defendant:

(a) Was not the only participant in the underlying crime; and

(b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and

(c) Was not armed with a deadly weapon; and

(d) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article, or substance; and

(e) Did not engage himself in or intend to engage in and had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury; and

(f) Endeavored to disengage himself from the commission of the underlying crime or flight therefrom immediately upon having reasonable grounds to believe that another participant is armed with a deadly weapon, instrument, article, or substance, or intended to engage in conduct likely to result in death or serious bodily injury.

(3) Murder in the first degree is a class 1 felony.

(4) The statutory privilege between patient and physician and between husband and wife shall not be available for excluding or refusing testimony in any prosecution for the crime of murder in the first degree as described in paragraph (f) of subsection (1) of this section.

Source: Colorado General Assembly (http://www.leg.state.co.us/)

[supcom]

People are throwing around terms like "murder" and "negligent homicide." Here are the relevant Colorado Statutes. I'll try to find the misdemeanor statute that the prosecutor supposedly charged the kid with.

At first blush, this looks like vehicular homicide for recklessly killing someone.

Which statute do you think this case falls under?


Colorado statutes should have a definition for 'reckless' and 'criminally negligent'. What are they?

Often these terms rely on a 'reasonable person' criteria to judge what is reckless or criminally negligent. Note that criminally negligent does not mean any negligence even if somebody dies as a result. There should be some standards (probably case law) that would guide a district attorney and/or jury to determine whether the actor violated these standards.

I suspect that in Colorado, absent a statute specifically addressing it, using a cellphone in a moving vehicle does not, in itself constitute reckless or criminally negligent behaviour. It would probably be hard to get a jury willing to make such a determination. After all, most of the jury members almost certainly use cell phones while driving. Whether a jury could be persuaded to convict on the issue of text messaging while driving may be easier, but still difficult unless there is a precedent.

[cerewa]

In a normal proceeding the one who incurred damages lodges a complaint. In this case that person is not alive.

I doubt bikeforums members can file a suit for wrongful death here, but Sydney's closest relatives probably can.

[Walter]

Reckless driving usually refers to something like street racing, blowing thru lights, etc. Like the poster a few posts up you probably won't get a reckless verdict out of cell phone use.

As someone else said maybe it's time to change the law. There's no reason that cell phone use while moving cannot be defined as reckless driving. That makes the ticket for getting caught serious (insurance companies will bump rates out the yazoo on this charge) and in tragic cases like this you have the ability to press more serious charges.


:beer:

[Daily Commute]

I found the careless driving section:

Careless driving
(1) Any person who drives any motor vehicle, bicycle, or motorized bicycle in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances, is guilty of careless driving. A person convicted of careless driving of a bicycle or motorized bicycle shall not be subject to the provisions of section 42-2-127.

(2) Any person who violates any provision of this section commits a class 2 misdemeanor traffic offense, but, if the person's actions are the proximate cause of bodily injury or death to another, such person commits a class 1 misdemeanor traffic offense.

Here are definitions for criminal negligence and recklessness (I couldn't find one for carelessness):

Definitions
The following definitions are applicable to the determination of culpability requirements for offenses defined in this code:
* * *
(3) "Criminal negligence". A person acts with criminal negligence when, through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists.

(4) "Culpable mental state" means intentionally, or with intent, or knowingly, or willfully, or recklessly, or with criminal negligence, as these terms are defined in this section.

(5) "Intentionally" or "with intent". All offenses defined in this code in which the mental culpability requirement is expressed as "intentionally" or "with intent" are declared to be specific intent offenses. A person acts "intentionally" or "with intent" when his conscious objective is to cause the specific result proscribed by the statute defining the offense. It is immaterial to the issue of specific intent whether or not the result actually occurred.

(6) "Knowingly" or "willfully". All offenses defined in this code in which the mental culpability requirement is expressed as "knowingly" or "willfully" are declared to be general intent crimes. A person acts "knowingly" or "willfully" with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts "knowingly" or "willfully", with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.
* * *
(8) "Recklessly". A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists.
* * *
Anyone who wants to browse through the statutes should go to the Colorado Legislature's web site (http://www.leg.state.co.us/) and click on the Colorado Revised Code link (http://www.michie.com/colorado.html).

[Blue Order]

If I was the prosecuting attorney, I could make a SOLID argument before a jury on a felony charge. And if I was the kid's attorney, I could make a solid argument for minimal punishment.

I think the D.A. is overly concerned about his/her conviction rate, because a lower conviction rate would mean a tougher election next time, so the D.A. is thus going for the lesser charge. It's political, and it sucks. The bottom line is, we've got to keep on the D.A.s to prosecute these types of cases, and we've got to get the state legislatures to outlaw cell phone use (and other driving distractions, like applying makeup, or shaving), with penalties similar to drunken driving, because they have the same effect as drunken driving, and to enforce the laws vigorously.

[supcom]

If I was the prosecuting attorney, I could make a SOLID argument before a jury on a felony charge. And if I was the kid's attorney, I could make a solid argument for minimal punishment.

I think the D.A. is overly concerned about his/her conviction rate, because a lower conviction rate would mean a tougher election next time, so the D.A. is thus going for the lesser charge. It's political, and it sucks. The bottom line is, we've got to keep on the D.A.s to prosecute these types of cases, and we've got to get the state legislatures to outlaw cell phone use (and other driving distractions, like applying makeup, or shaving), with penalties similar to drunken driving, because they have the same effect as drunken driving, and to enforce the laws vigorously.

Assuming no precedent already exists one way or the other, a District Attorney is unlikely to take on the task of trying to establish this case as an example of criminally negligent behaviour. Consider that the cellular phone industry has a BIG investment in cellular service - much of which is oriented along major highways. If the District Attorney were to get an indictment for a felony, the defendant would almost certainly receive the services of a very good legal team as well as provide study reports, expert witnesses, etc. all at no cost to him. Coupled with my earlier comment that it would be hard to find a jury of twelve individuals who would be likely to convict and you have a situation that few DAs would want to devote their limited budgets to try - especially if the motorist would be likely to receive a probated sentence when it's all said and done.

A case establishing criminal negligence will probably have to wait for an accident where a bunch of schoolkids are run down by a cellphone using motorist. Not that sydney's life is worth any less, but there are certain realities that a DA has to accept.

If it's any consolation, consider that the motorist will hardly get off lightly in any event. Unless the kid is pretty calloused, he will have to deal with some pretty heavy guilt for having caused the death of another person.

[TysonB]

Fellow riders,

Sorry to hear of the death here.

I am lurking from the Vintage and Antique Bike forum.

I am an Assistant District Attorney in Oklahoma. I have prosecuted at least six 'negligent homocide' cases in the last two years. (It's equivalent to Colorado's law with which this driver is being charged.) Fortunately, no bicyclists, but one motorcyclist (I ride both frequently).

In Oklahoma, the only way you get to a felony in one of these is to show either actual intent so you can get to all the intentional crimes in which a vehicle is actually a weapon, or you get there by DUI. The legislature has drafted no middle way. The max for negligent homocide is 1 year in the county jail and $1,000.00 fine (plus restitution for actuals). The DA in Colorado is not necessarily cowardly, he is following the law as he is bound to do.

It is our experience that in the majority of cases, we have taken more criticism for actually filing the cases than in being to lenient. Our policy is that if a person is killed in an automobile accident and a ticket is written for ANY infraction to the driver, we file. We are seen as the most aggressive DA's office in the State. Other DA's and judges have told us they admire our stance, but find themselves moderating their own.

An interesting aside is that in the cases I have seen, the driver each and every time has NOT been a problem driver. Only one defendant had a prior criminal record (bad checks) and none had many points on their license.

Tyson

[Ebbtide]

A felony speaks to intent. Yes, its that simple.

[supcom]

Fellow riders,

Sorry to hear of the death here.

I am lurking from the Vintage and Antique Bike forum.

I am an Assistant District Attorney in Oklahoma. I have prosecuted at least six 'negligent homocide' cases in the last two years. (It's equivalent to Colorado's law with which this driver is being charged.) Fortunately, no bicyclists, but one motorcyclist (I ride both frequently).

In Oklahoma, the only way you get to a felony in one of these is to show either actual intent so you can get to all the intentional crimes in which a vehicle is actually a weapon, or you get there by DUI. The legislature has drafted no middle way. The max for negligent homocide is 1 year in the county jail and $1,000.00 fine (plus restitution for actuals). The DA in Colorado is not necessarily cowardly, he is following the law as he is bound to do.

It is our experience that in the majority of cases, we have taken more criticism for actually filing the cases than in being to lenient. Our policy is that if a person is killed in an automobile accident and a ticket is written for ANY infraction to the driver, we file. We are seen as the most aggressive DA's office in the State. Other DA's and judges have told us they admire our stance, but find themselves moderating their own.

An interesting aside is that in the cases I have seen, the driver each and every time has NOT been a problem driver. Only one defendant had a prior criminal record (bad checks) and none had many points on their license.

Tyson

So, negligent homicide is a midemeanor in OK? Have you prosecuted any cases of negligent homicide resulting from cellphone usage?

[Ebbtide]

So, negligent homicide is a midemeanor in OK? Have you prosecuted any cases of negligent homicide resulting from cellphone usage?


If the act was criminal, say carrying a gun into a bar and it went off, that would be homicide. Some States may vary....and are likely governed by civil (not criminal) code.

[supcom]

If the act was criminal, say carrying a gun into a bar and it went off, that would be homicide. Some States may vary....and are likely governed by civil (not criminal) code.

Civil and criminal law are two separate things. 'Homicide' is simply the killing of a person by another. Not all homicides are criminal (self defense being an obvious example). For a civil case, the actor does not neccessarily have to be criminally responsible for a death in order to be held liable for restitution. An example of this would be if you you left the gate open to your backyard and a child wandered in and drowned in your pool.

[TysonB]

"Have you prosecuted any cases for cell phone useage?"

No. Oklahoma does not have a specific prohibition. All distracted driving that ends in a death in Oklahoma will be either negligent homicide or manslaughter (read as DUI death). Cell phones, nose pickin', and head-up-in the-clouds are all treated the same. There's some logic in that legislative scheme as the result (an innocent person's death) is the same in each case. And in each case, the guilty driver thought that whatever he or she was doing at the time was more important than taking care not to injure someone else with their care.

Some causes I recall: 1) falling asleep (7:30 am after driver worked a midnight shift in a factory), 2) speeding 85 in a 65, 4-lane divided highway light traffic, changed lanes and clipped a car's bumper spinning it out of control, 3) Head in . . er . . .'CLouds' driver rear-ended car stopped to turn left on 2-lane highway and pushed the victims' into the path of an 18-wheeler, 4) driver changing cassette tape and hit highway worker, 5) driver pulled out in front of motorcycle (who may have been speeding), 6) driver ran stop sign from dirt road onto 2-lane highway and hit two elderly people who lingered for about 2 weeks before each died (younger victims may well have survived). There are others. But when you look at them, most of the incidents seem very unremarkable . . . right up to the point where someone gets killed.

Tyson

[San Rensho]

Fellow riders,

Sorry to hear of the death here.

I am lurking from the Vintage and Antique Bike forum.

I am an Assistant District Attorney in Oklahoma. I have prosecuted at least six 'negligent homocide' cases in the last two years. (It's equivalent to Colorado's law with which this driver is being charged.) Fortunately, no bicyclists, but one motorcyclist (I ride both frequently).

In Oklahoma, the only way you get to a felony in one of these is to show either actual intent so you can get to all the intentional crimes in which a vehicle is actually a weapon, or you get there by DUI. The legislature has drafted no middle way. The max for negligent homocide is 1 year in the county jail and $1,000.00 fine (plus restitution for actuals). The DA in Colorado is not necessarily cowardly, he is following the law as he is bound to do.

It is our experience that in the majority of cases, we have taken more criticism for actually filing the cases than in being to lenient. Our policy is that if a person is killed in an automobile accident and a ticket is written for ANY infraction to the driver, we file. We are seen as the most aggressive DA's office in the State. Other DA's and judges have told us they admire our stance, but find themselves moderating their own.

An interesting aside is that in the cases I have seen, the driver each and every time has NOT been a problem driver. Only one defendant had a prior criminal record (bad checks) and none had many points on their license.

Tyson


The way I read the definition of criminal negligence "A person acts with criminal negligence when, through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists." there is no intent requirement, no specific intent or general intent. It is simply gross negligence, and in this case, intentionally taking your eyes off the road to pay attention to writing a message on a cell phone when you are driving a vehicle that weighs over a ton is well within the definition of criminal negligence.

An analogous case would be this. Here in Miami, we have a tradition of firing guns in the air on New Years. There are warnings to stay inside because so many people fire guns. Thousands do it, almost always, nothing happens.

So if I shoot my gun in the air, and I have absolutely no intent to hurt anybody, but I do kill someone, do you think I would be charged with a misdemeanor or a felony? What would you charge me with?

Based on what this kid did, and on a literal reading of the statute, a DA could easily get this case to survive a motion to acquit and have the case go to a jury. If its not cowardice, then its a complete insensitivity to bicyclists that he did not charge a felony.

[supcom]

It is simply gross negligence, and in this case, intentionally taking your eyes off the road to pay attention to writing a message on a cell phone when you are driving a vehicle that weighs over a ton is well within the definition of criminal negligence.

If there is neither a statute nor precedent, that would be the question that twelve 'reasonable' jurors would have to decide based on whatever guidance provided to them by a judge.

By the same token, would it be criminal negligence to look down briefly while tuning the radio? To grab a spilled soft drink? To read a map? To find the hazard flasher switch? To check your blind spot? All of these require diverting your eyes from the road ahead of you. When does the activity cross the line between reasonable and criminally negligent? Have you ever read a map while driving? How about while riding a bike?

I feel that text messaging while driving (or cycling!) crosses the line between reasonable and unreasonable, but it's not a simple call. It is certainly possible to enter a character or two at a time so you don't have to look at the phone constantly. With practice, most of a message could be entered without even looking at the phone. But since it has nothing to do with operating the car, it would seem to divert one's mental attention away from the road even if not the eyes.

[billh]

I'd like to see the rest of his text message . . . "Dude, sorry didn't reply, got delayed by police awhile cuz I killed someone, so where's the party tonight?"

[dynaryder]

Now put a cyclist on the road in front of a vehicle... with the cyclist "acting vehicular," and you have the potential for these types of bad situations.

I almost got clipped in Sept by a dude who drifted into my lane while yakking on a cell phone...on my motorcycle. Despite my larger size,my keeping up with traffic,my noise(I'm not running drag pipes,but they still bark),the extra lights on the back,and my BRIGHT ORANGE full-face helmet,he still didn't notice me until I laid onto my horn. A small,quiet,dull-colored cyclist would've been completely invisible.

As I posted in another thread,we need better driver education. Start with Driver's Ed in schools,make people take refresher courses periodicly,maybe do extra enforcement like they do for DUI's. We really need to change the mindset that cars are appliances or fashion statements and get people to realise the amount of responsibility that goes with piloting tons of steel around at speed.

[genec]

I almost got clipped in Sept by a dude who drifted into my lane while yakking on a cell phone...on my motorcycle. Despite my larger size,my keeping up with traffic,my noise(I'm not running drag pipes,but they still bark),the extra lights on the back,and my BRIGHT ORANGE full-face helmet,he still didn't notice me until I laid onto my horn. A small,quiet,dull-colored cyclist would've been completely invisible.

As I posted in another thread,we need better driver education. Start with Driver's Ed in schools,make people take refresher courses periodicly,maybe do extra enforcement like they do for DUI's. We really need to change the mindset that cars are appliances or fashion statements and get people to realise the amount of responsibility that goes with piloting tons of steel around at speed.


Fully agree with your proposal... I think Public Service Announcements are also key to educating motorists... reminders to share the road and drive friendly.

[Ebbtide]

Civil and criminal law are two separate things. 'Homicide' is simply the killing of a person by another. Not all homicides are criminal (self defense being an obvious example). For a civil case, the actor does not neccessarily have to be criminally responsible for a death in order to be held liable for restitution. An example of this would be if you you left the gate open to your backyard and a child wandered in and drowned in your pool.

A "felony homicide" is what I meant. I was not speaking to negligence, but my typo nonetheless. :o In the absence of criminal intent (which speaks to the felony vs. misdemeanor) and a felony conviction it is up to the civil courts to determine "negligence." and punish the offender.


most of the incidents seem very unremarkable . . . right up to the point where someone gets killed.

Life is a risk, and I'll hold back on the lawyer jokes. Nice posts.

[Ebbtide]

So if I shoot my gun in the air, and I have absolutely no intent to hurt anybody, but I do kill someone, do you think I would be charged with a misdemeanor or a felony?

If shooting a gun in the air is a felony then you get a felony. If littering is a misdemeanor and someone dies after slipping on your bananna peel, do you think you should you get a felony?

[San Rensho]

If shooting a gun in the air is a felony then you get a felony. If littering is a misdemeanor and someone dies after slipping on your bananna peel, do you think you should you get a felony?


I don't think you get my point. In Fla. I believe discharging a firearm within city limits is an infraction, just like getting a parking ticket. The point is not what type of law you break, its whether looking at the totallity of the circumstances, you did something that you know has a high probability of injuring or killing someone and that result occurs. That is the essence of negligent homicide.

I argue that taking your eyes completely off the road while driving to text message, like shooting a gun in the air, can have horrible consequences and if kill someone while doing either one of those things, you should be criminally liable.

By your argument if your actions are not a crime at all, then there should be no penalty, no matter what the result. Then the kid should not be charged with anything, because text messaging while driving is completely legal.

[San Rensho]

If there is neither a statute nor precedent, that would be the question that twelve 'reasonable' jurors would have to decide based on whatever guidance provided to them by a judge.

By the same token, would it be criminal negligence to look down briefly while tuning the radio? To grab a spilled soft drink? To read a map? To find the hazard flasher switch? To check your blind spot? All of these require diverting your eyes from the road ahead of you. When does the activity cross the line between reasonable and criminally negligent? Have you ever read a map while driving? How about while riding a bike?

I feel that text messaging while driving (or cycling!) crosses the line between reasonable and unreasonable, but it's not a simple call. It is certainly possible to enter a character or two at a time so you don't have to look at the phone constantly. With practice, most of a message could be entered without even looking at the phone. But since it has nothing to do with operating the car, it would seem to divert one's mental attention away from the road even if not the eyes.

I guess we are both playing the role of the jury in this case and judging the kids actions, which without having all the facts is a little risky. I believe his actions constitute felony negligent homicide, I guess you don't don't think the kid committed a crime. Each of us is entitled to our opinion. But I still believe the state attorney should have charged a felony and let the jury decide.

[slvoid]

You know those road side alert signs that broadcast holiday messages like, "don't drive drunk" and such? They should start randomly displaying traffic violations and their maximum sentences from running a red light up to running someone over. Then they should actually start enforcing those rules.

Fully agree with your proposal... I think Public Service Announcements are also key to educating motorists... reminders to share the road and drive friendly.

[genec]

You know those road side alert signs that broadcast holiday messages like, "don't drive drunk" and such? They should start randomly displaying traffic violations and their maximum sentences from running a red light up to running someone over. Then they should actually start enforcing those rules.

Cute... I like it.

[slagjumper]

Seems like we will need a movement similar to MADD but for cell phones.

Too bad being right is not enough. Looks like you have to fight the cell phone industry, elected officials and force the police to actually enforce the law. Even after all of that you can't really make people follow the law, so a degree of education and PR is needed.

Conneticuit just added a cell phone law in October. It states that new drivers, 16-17 may not use any type of cell phone or mobile electronic device while driving, even with hands free hardware. The link has no discussion of penalties, and appears to be somewhat weak. Sorry the PDF didn't allow text pasting.

http://www.ct.gov/dmv/lib/dmv/20/29/cellphon.pdf


Also found the following that breaks down state laws on cell phones while driving.
http://www.highwaysafety.org/laws/state_laws/cell_phones.htm

Seven states (Florida, Kentucky, Louisiana, Mississippi, Nevada, Oklahoma and Oregon) prohibit localities from banning cell phone use.

[supcom]

Seems like we will need a movement similar to MADD but for cell phones.

Eventually it will probably happen.

[Ebbtide]

The point is not what type of law you break, its whether looking at the totallity of the circumstances, you did something that you know has a high probability of injuring or killing someone and that result occurs. That is the essence of negligent homicide.


Exactly:

Thousands do it, almost always, nothing happens.

AKA: No criminal intent, no felony, and no negligence.

I'm not defending the perp, just the law and our Rights.

[Dchiefransom]

You know those road side alert signs that broadcast holiday messages like, "don't drive drunk" and such? They should start randomly displaying traffic violations and their maximum sentences from running a red light up to running someone over. Then they should actually start enforcing those rules.


HaHaHaHaHaHaHaHaHa !!!! A "State" sponsored act of taking driver's eyes off the road?????????

[DannoXYZ]

Seems like we will need a movement similar to MADD but for cell phones.Eventually it will probably happen.I hope it's soon. Many states have passed laws against cell-phone usage while driving. But it appears they're a minority. Many others allow hands-free usage. What I find strange is that headphone usage is pretty much universally forbidden, yet you can talk on your cellphone with a headset? Certainly you'd be more distracted trying to carry on a two-way conversation than just listening to music?

Apparently, some people can still function while using a cell-phone: Woman robs 4 banks while using cell phone (http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2005/11/11/MNGVEFMO0Q1.DTL&feed=rss.news)