mconlonx

Cyclists rally to pass Aaron Cohen Act
BY KATHLEEN MCGRORY. HERALD/TIMES TALLAHASSEE BUREAU

TALLAHASSEE -- When the driver who fatally struck cyclist Aaron Cohen was sentenced to less than a year in jail, members of the South Florida cycling community were outraged.

“We needed to do something,” said Enda Walsh, who was riding with Cohen at the time of the February 2012 hit-and-run crash.

Their response: a legislative proposal known as the Aaron Cohen Act Life Protection Act. The bill seeks to create tougher penalties for drivers who leave the scene of an accident.

...

The Aaron Cohen Act proposes a mandatory minimum sentence of three years for drivers who leave the scene of an accident resulting in injuries. Fleeing drivers who seriously hurt or kill someone would face a mandatory seven or 10 years, respectively. They would also have to complete driver education courses about “vulnerable road users,” such as cyclists, pedestrians and emergency service workers.

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Anyone who posts on A&S and lives in FL active with this proposal?

PS: This is the way outrage should be expressed.

PlanoFuji

From the linked article:

And example of an unintended consequence from the passage of another law, designed to fix a non-legal problem. In other words one's fellow citizens and elected judges weren't instituting enough 'punishment' so the law was modified to do so which is a problem of people, not necessarily the law. Such modifications lead to unintended consequences like making it better to flee the site of a crash until one's blood alcohol level is legal... I wonder what unintended consequence this new law might have?

mconlonx

I am absolutely not for mandatory minimums, but what's the alternative? Dropping sentencing guidelines for DUI to somewhere below what the current guidelines are for fleeing the scene of an accident involving injury or death?

PlanoFuji

I don't know what the answer is. I just think it is important to recognize that such laws only treat symptoms, not diseases.

Personally I would suggest that such anger be put to use working to ensure that judges that hand down lenient sentences be voted off the bench. At least in addition to working to pass such laws as the OP. The problem isn't the law or the 'system'. The problem is, and always will be, the people. I am reminded of one of my favorite John Adams quotes:

We find a need for such laws because as a people we don't hold folks responsible for their actions (juries) and we have judges who choose to minimize punishment for those who even manage to get convicted.

mconlonx

I certainly don't disagree with you, but working things out at this level, advocating for and actively working to change existing state laws is a worthy stop-gap bandaid until the whole system gets overhauled... because it is entirely likely that we'll just keep limping along with the same system for a while and never get that societal change you'd prefer.

Working to change state law is something which can be done now, but smaller groups of people. I encourage A&Sers to get involved at that level, where motivated individuals matter in the political process.

Chris516

I doubt it will do any good. Because until motorists' realize cyclists' have the same rights' as motor vehicles(I know this is about a DUI death). Then equally, until law enforcement from the LEO all the way up to the judge, charges a motorist with the same charge/sentence as if a person in a motor vehicle had been, new laws n' legislation will only be a drop in the bucket. Sure there are sentencing guidelines. When a motorist kills another motorist or a pedestrian, motorists' usually will get the maximum penalty, or close to it. But when a motorist kills a cyclist who is exercising their right to be on the road, the motorist will usually receive a sentence that is the bare minimum under the sentencing guidelines. So unless the bias from not just the general public, but also from law enforcement stops. There will be no need for new laws.

Because attitudes need to change. Cyclists' are stuck in the middle.

Another thing is, the Miami Herald got it wrong. Michele Traverso would not have been sentenced for DUI Manslaughter. He was under the influence of alcohol, not drugs. So, It would have been DWI Manslaughter.

FBinNY 

Besides the fact that I'm categorically opposed to any legislation named for a victim (any kind, any time, any reason), I would support the spirit of a similar bill, but would want exclusions, and an exception, or potential for reduced sentence for someone who voluntarily turned himself in within 24 hours. OTOH, I'd double the minimum sentence if police had to track them down.

mconlonx

While it's named after a cyclist and obviously there is huge cyclist support for this, they would be smart to include as many allies as possible. Pedestrian advocacy groups, motorcycle associations, even AAA. Get all the players on board and proposals like this can become law.

I don't think naming it after a slain cyclist is smart. This needs to be a non-cyclist thing for it to have a real chance. And it sounds like the wording is: I don't see anything about it applying to cyclists only; it's poor form to market it as cycling advocacy; they need a coalition of road users on board for this to have a chance.

All fun and games, ranting about stuff online; kudos to this group for making it as far as a Legislative Proposal sponsored by state Reps.

But that statement about sentencing in cases of car crash resulting in death, got figures to back it up? Sentencing history for vehicular deaths where another motorist or pedestrian is concerned vs. those involving cyclists?

dynodonn 

Just too many motorists leaving the scene, go sober up, then turn themselves in later for a slap on the wrist. As far as I'm concerned, motorists convicted of leaving the scene that involves a death should face the same or nearly the same jail term as a DUI involving a death.

Chris516

That and, other motorists' who witness it, not caring to chase down the offending motorist to stop them. So the police can do a FBT to get the BAC. Instead, Witnesses turn a blind eye.

mconlonx

That's what this new proposal is all about.

FBinNY 

That's definitely true, but in many areas drivers involved in an accident leave out of a legitimate fear for their own safety. Mandatory sentence laws don't make for greater justice. I agree that if there's evidence to support a presumption that alcohol may be involved, then a driver who leaves and doesn't drive directly to a police station should be presumed to be DUI. But I don't that should apply without a basis in evidence.

In any case, I'm opposed to overly harsh laws or mandatory sentences, it gives DAs disproportionate power to overcharge then plea bargain from there.

mconlonx

I agree with you about naming this after a victim, as in your previous post. On my end, because it focuses way too much on the fact that he was a cyclist and hurts chances of passage. Although maybe you're more miffed about clawing for political gain using the name of a victim as a cheap emotional shot to do it?

I'm also generally against mandatory minimums, but in this case the mandatory minimum is three years, probably equal to or just over what the minimum is for the applicable drunk driving offense. That's the whole point of this legislation -- what good would it do if there was no minimum? If judges can (and would, based on what usually happens) degrade a sentence down below what might have been applied in the case of a DWI related death, it pulls the teeth out of this legislation, might as well not even have proposed it.

What's the politically feasible alternative to this proposed law? (Note: changing society, human nature, or structure of gov't is not "politically feasible"; I'm talking wording for a law which would make it a graver offense for leaving someone dead or dying on the side of the road in a hit and run situation, than calling it in and waiting at the scene even if under the influence of drugs or alcohol.)

PlanoFuji

As I said, unintended consequences. One such possible consequence is a reluctance on the part of jurors to convict for what they believe to be an 'excusable offence'... Juries can and will ignore the law--jury nullification.

The problem is that you can't fix such problems by writing new laws. Which would you rather have a criminal conviction even with a minimal sentence or a finding of not guilty. The former certainly bolsters the case for any civil damages, which is where our society intended such concerns to be handled.

mconlonx

...and the politically feasible alternative to the proposed law is what?

You're advocating for doing nothing or for change to happen at a scale much larger, more involved, and time consuming than pushing for a state law.

The people behind this law -- those who brought it as an issue to their representatives -- would have better spent their time doing what about this issue?

FBinNY 

There's no easy answer, but I don't believe justice is served with overly specific laws and mandatory sentences.

However, leaving the scene is a separate offense to whatever was involved in the accident, so one step would be to mandate that the offenses are sentenced independently and that must be consecutive. This would preserve judicial latitude, but provide for more severe punishment.

As I said earlier, there should also be a presumption of guilt for DUI if there's evidence to support it. In other words, leaving the scene and not driving directly to a police station would strip someone who can be shown to have been drinking (in any amount) of the defense that a blood test might have provided. But note, that there would still need to be some form of evidence to support the inference.

PlanoFuji

Nothing is certainly preferable to making things worse, which is one possible unintended (but foreseeable) consequence of this law.

However, putting effort into education, removal of judges who give lenient sentences, and even publicly shaming jurors are all actions that can be done and can potentially improve the situation. But yes, real change often does take much longer than simply changing a law or creating yet another new law that will be ignored.

Such a fundamental change, such as the presumption of innocence to a presumption of guilt, could have even more (and potentially more far reaching), unintended consequences. Our legal system was designed to make it difficult for the government to get a conviction for very legitimate reasons. That so many have either forgotten those reasons or simply don't believe they are needed anymore is strong evidence that the reason it was implemented as it was was done for a good purpose. In short we have forgot how governments can rail road individuals into criminal convictions for unsavory reasons.

However, in an age where we have been multiplying the ways in which our governments can strip people of those same protections, we should be even more cautious before advocating even more ways that it can be done...

FBinNY 

You're close to it about my objection which has 2 main reasons.

The first is that Americans have developed a hard time saying no. To anything or anybody. Putting a name and face to a bill, with the grieving families and friends there makes it too hard to legislators to vote no. Remember they don't have a secret ballot. So they can vote based on calm, calculated reasoning on the implications and be seen as unfeeling jerks, or they can go with the flow.

My other reason, is that we're starting to develop a cult of victimhood. Too much emphasis is placed on victims based on their victim status, not for how they lived. We used to build statues and name things for heroes, now we name them for folks based on the single achievement of being in the wrong place at the wrong time. I'm not saying that they're unworthy of remembrance and memorialization, but it should be about who they are, how they lived, and what they did, not about how and why they died.

FBinNY 

I agree that a presumption of DUI is a serious shift from the general presumption of innocence, which is why I want a burden of supporting evidence to support the inference. In reality, the best legal proof of DUI guilt or innocence is the blood test, since the law is based on that (not on how well or poorly one is driving). However, when leaving the scene and delaying capture, the defendant is willfully destroying that evidence. This should score against him, if there is good evidence to support the inference that he was DUI. Good evidence being witness testimony that he was drinking heavily, or a bar tab, or witness testimony that he was driving erratically, or something of that order.

I don't infer that everyone that leaves a scene was drinking, nor would I expect anyone to have to prove they weren't, but would allow the inference if there was enough unchallenged evidence to support it.

PlanoFuji

Destroying 'evidence' of your own alleged crime is perfectly legal (in this scenario) and should be. With your scenario, you could be convicted of drunk driving simply if someone lied and claimed they saw you in an accident you were never in and that they saw you drinking as well...

It already does 'score' against them. The judge/jury get to hear and weigh that evidence they just don't get assume they were in fact legally intoxicated based upon the fact they left the scene. It appears your problem is mainly that you don't like the how they decide in such cases.

FBinNY 

You could be convicted or **** and murder on comparable evidence, so I don't have a problem with credible witness testimony that someone was drinking prior to an accident. I'm not changing the rules, not am I charging anyone with destroying evidence. What I am saying is that BAC is not the sole determinant of whether someone was DUI, though it could prove either guilt or innocence. I'm just saying that a conviction for DUI should be attainable without a blood test if there's evidence to support it. In the scenario where someone who is not in fact drunk leaves the scene and therefore never has a timely blood test, the evidence he destroys could very well be that which proved his innocence.

There's a lynch mob mentality against drivers on this forum, with folks demanding long mandatory terms for accidents, leaving the scene, or DUI. I'm not a believer in that, and accept that accidents are usually just that - accidents, and don't rise to criminality. I was and am against constantly lowering the BAC limits for drivers. OTOH, I am in favor of tougher enforcement against chronic DUI offenders, those who leave the scene and have to be hunted down, and others whose actions would elevate a simple accident to criminality.

Just as you don't need a murder weapon, or even a body to convict someone of murder, you should be able to convict of DUI without a blood test result, IF other evidence supports the charge adequately. Contrary to your belief and argumentative reading of my posts, I'm more on your side than against. I don't ask anyone to assume anything, and insist on evidence to support any charge, nor do I want mandatory sentences which remove discretion from judges and overly empower prosecutors.



It already does 'score' against them. The judge/jury get to hear and weigh that evidence they just don't get assume they were in fact legally intoxicated based upon the fact they left the scene. It appears your problem is mainly that you don't like the how they decide in such cases.[/QUOTE]

genec

There is another issue at hand with regard to mandatory laws... by not having such we are at the mercy of lenient judges... we've all heard of situations where someone has been charged with DUI for the 4th or 5th time or more and while they may not retain a driver's license, they get scant jail time and then continue down the same path previously followed, and eventually someone is killed.

What do we do about these repeat offenders that are typically given a slap on the wrist?

PlanoFuji

Ah, and there is the difference. By changing the presumption of innocence to a presumption of guilt, you would essentially be guaranteeing the government would obtain a conviction (if the jury followed the law) in such cases. BAC has never been the sole determinant of someone driving under the influence, many convictions have been obtained upon witness testimony of slurred speech, weaving, etc... The problem is precisely the one I have been talking about in this thread; the increase in the penalty has resulted in juries that are unwilling to convict of the crime perhaps because they don't feel it is fundamentally that serious and warrants the mandated punishment. The standard for conviction has never changed; the juries requirements have. And that is solely a result of the population not really agreeing with the law.

I have no real problem with tougher enforcements, though as I said they do create unintended consequences such as juries who prefer to not-convict. I objected to your proposed change of the presumption of innocence in the case of DUI.

This is fundamentally why I am disagreeing with you. The law does not require a blood test to convict of DUI now. It is simply a matter of juries not being willing to convict without something more than proof with a 'reasonable doubt'. I object to your proposal to create any crime where there is a presumption of guilt.

Yes, folks tend to object to the fact that our system will release without conviction many who are in fact guilty. That is the price of a system that is designed to prevent government from using it criminal justice system to persecute citizens for its own whims. Folks need to realize that isn't some theoretical fear, we already have many modern examples of prosecutors 'cooking the books' illegally to get convictions.

In the case of DUI, the folks who get off, are the same folks who tend to get off of any crime they are charged with; the wealthy and the politically connected. Most normal folks will simply plea bargain. Perhaps we should assume that if one is wealthy or a politician, then one should be presumed to be guilty? I will admit I would be sorely tempted to change the law to say a politician is presumed to be guilty...

PlanoFuji

Work to get the judges who pass such judgements off the bench. They are after all ELECTED officials.

FBinNY 

You're right on this point, which was a poor choice of words. You'll note that I kept insisting on adequate supporting evidence (unlike the post I responded to who felt that leaving the scene should be punished as severely as a fatal DUI on general principles. In later posts, I tried to make it clear that I considered leaving the scene a separate and distinct crime than the accident, possible DUI, or whatever preceded it.

I'm not looking to change laws, or presume guilt of any kind, not even for cops or politicians, but looking to encourage charging with leaving the scene as an added crime to the prior crime of DUI (if evidence supports it), and sentencing consecutively. The goal is to remove (possibly and hopefully) motivation to flee if drunk.

IMO, someone who has an accident while DUI and flees should face a decent likelihood of more severe punishment than if he stays. Like you, I still want to preserve the rules of law that serve reasonably well.