On Saturday, February 10, 2018 at 5:04:39 PM UTC-5, Tim McNamara wrote:
On Thu, 8 Feb 2018 15:58:01 -0800 (PST),
I wrote:
"The police and prosecutors do not want to ruin someone's life just
for killing a cyclist, so they accept "I didn't see" him or her as a
valid defense (instead of the admission of negligence that it really
is. "

Most of us drive too. It is damned easy not to see a cyclist.

With the exception of the dark-clothed cyclist with no lights at night
(which is something I see with depressive regularity around here, as
well as dark-clothed pedestrians at night), it's not that hard to see
bicyclists. On my bike I am taller than most cars.

In most cass "I didn't see" is either a lie or an admission of
negligence.

Your opinion. I think it is wrong, but okay.

Other than a persecution complex, there is no reason to conclude "just
a cyclist" as some kind of motive, when the easier explanation is that
mere negligence is a just a civil case and there is simply
insufficient evidence to prove a crime. When every juror is going to
hear the facts and think "there but for the grace of god go I", there
is basically no way it can constitute gross negligence and therefore
isn't a crime.

The prejudice of the jury doesn't determine what laws apply to what
situations. There are conditions under which negligence is a crime in
all 50 states in the US, and should be prosecuted under criminal laws
and not in civil court. If negligence results in the death of another
person, that is IMHO not a civil matter in most cases.

Of course the ADA handling the matter has to consider the jury. [S]he looks to see if there is sufficient evidence that a jury will convict. Not enough evidence = no case.

The fact that you think death makes it a criminal, not civil, does not make it the criminal law. Negligence that causes the death of another is ALWAYS a civil matter. It is only criminal if there is a much higher level of negligence. This is from the model penal code (just because it was easy to find online) "A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation."

Commonly called gross negligence. If it is just an accident, it isn't a crime. No matter how much you might wish otherwise. And folks continually saying it is a crime on the web is misinformation.


I just don't see the point of the many internet whines (and posting of
newspaper articles) that a cyclist got hit and died, so there must
have been a crime that isn't being punished. No. That is an
unsupportable leap. You need more for it to be a crime.

And there frequently is. That is the point. Drivers are frequently
distracted on their cell phones (talking, texting, looking at maps,
etc.), eating, reading books or magazines, arguing with passengers,
looking in the back seat, picking something up from the floor,
intoxicated... I have personally seen all of those scenarios multiple
times while driving on the highways as well as riding my bike on the
roads around here. That is enough for striking a bicyclist (or a
pedestrian or another car) to be a crime.

"Gross deviation" from normal behavior is what makes it criminal (as opposed to perhaps a traffic offense.) You says it happens all the time. Thus, based on your own experience, is probably not a gross deviation. So, not a crime.


Now, if the cyclist runs a stop sign or a red light, is riding the wrong
way down a one way street, is riding erratically and unpredictably- all
of which I have witnessed as well- then I think it's likely to be a very
different story. Even if the driver was distracted or inattentive, the
cyclist has some share in the burden of responsibility.