Category Archives: Careless vs Reckless

Careless Driving Legislation

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2013 Careless Driving Accountability Bill – Senate Bill 290

The purpose of this bill is to give New Mexico Courts sentencing options that better match the range of outcomes possible when someone has committed the act of careless driving.

Existing accountability options for people found guilty of careless driving include a fine, up to $300.00 dollars, and/or the possibility of probation or jail time, up to 90 days.  While this is adequate in careless driving cases that only cause property damage or minor injury, it is inadequate in cases where the outcome is great bodily harm or death.  With Senate Bill 290, the accountability options will be increased.  Guilty careless drivers who cause the death or great bodily harm of another road user could be asked to pay a fine, up to $1,000.00 dollars and/or serve probation or jail time up to 364 days.  Accountability options for cases with property damage or minor injury would not change.
Tuesday February 12, 2013, SB 290 was given a 6-0-1 “do pass” recommendation in Senate Public Affairs Committee.  Senate Judiciary also gave SB290 a Do Pass recommendation on Wednesday February 20!  Today the bill was on a long list of items to be voted on, but today’s session adjourned before that happened.

Write to your Senator TODAY  

Urge your Senator to vote for the bill.

Ask them to lobby for the bill to be brought to a vote on the Senate floor ASAP!

The Senators talk to each other.  The more the issue is raised, the more likely they are to talk about it and vote in favor.  We need people to take action on this and let them know how important the bill is to us as cyclists and for traffic safety in general.  Remember your outrage when you hear about a careless driver killing a cyclist and then having to pay a $300 (or less) fine, etc.  Use that feeling of injustice as motivation to write an email.  If you live in the part of Valencia or Bernalillo county represented by Senator Michael Sanchez, you will note that he doesn’t have an email listed, only a phone number.  It is kind of a drag to inundate the secretary in his office with a bunch of phone calls voicing support of SB290, but there isn’t much else to do.  CALL!  I know that many letters are coming from The New Mexico Motorcycle Rights Organization members.  Add your cyclist voice to the mix today.

Below is a list of things that I feel this bill will accomplish, and things I don’t expect it to do.  Use any/all of this to help you write your email to your Senator.

Pass this information far and wide, to anyone you know who might support the bill and act.  Thanks for doing your part to help this bill pass.

Jennifer Buntz
Duke City Wheelmen

Careless Driving Legislation – SB290 – WILL:

  • Let families and survivors know that New Mexico is serious about improving traffic safety and that our legal system tries to mirror our value of human life and well-being;
  • Hold careless drivers accountable in a way that is commensurate with the outcome of their actions;
  • Give Judges sentencing options that distinguish between careless driving that causes property damage and careless driving that causes the death or great bodily harm of another road user;
  • Act as a deterrent, in that it will

a)      Reach some of New Mexico’s drivers as a reason to NOT drive carelessly,

b)      Raise awareness of the potential deadly consequences of careless driving,

c)      Reinforce the message that careless driving is not acceptable,

d)      Remind other drivers of the risks of careless driving & the benefits of attentive driving every time a careless driver is appropriately held accountable for the outcome of their actions;

  • Serve as another tool to bring down New Mexico’s fatal traffic crash incidence rate – which was 22% over the national average in 2009 (per capita);
  • Serve to address the second most frequently cited cause of crashes in New Mexico, Driver Inattention.  Alcohol was involved in 3.2% of NMs traffic crashes in 2009 (6th most frequent cause).  Driver Inattention was responsible 12.0% of the time (2009).  We need to start addressing these more frequent causes of traffic crashes in NM;
  • Enhance New Mexico’s reputation as a bicycle and pedestrian friendly place, which is important to bring both new employers and tourists, along with their dollars, to New Mexico;
  • Enable more of us to get the exercise we need to be and stay healthy because we are not scared to go out for a walk, run or bike ride;
  • Encourage the use of alternative transportation means, which in turn is good for the environment, our wallets and our health;
  • Support the many small businesses in New Mexico that cater to alternative road users, including  motorcyclists, bicyclists, pedestrians, joggers, etc.

 

SB 290 WON’T:

  • Erase the pain of victims’ families or survivors.  It will help, but as we know, nothing will make everything right again;
  • Clog-up the Courts, District Attorneys’ offices or other components of NMs Judicial System.  On average, there are only 20-25 cases per year (an average value based on NMDOT data, 2000-2009);
  • Reach all drivers as a deterrent – other tools are necessary too, like education, Public Service Announcements, increased awareness, etc.;
  • Magically fix New Mexico’s traffic safety issue;
  • Eliminate careless driving;
  • Elevate careless driving to a felony level offense.  Careless drivers who cause the death or great bodily harm of another road user will still be held accountable at the misdemeanor level;
  • Give any special privilege to bicycles, motorcycles or any other group of road users – this bill is written to apply equally to all road users.

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When one reads the NM statute that defines careless driving it is such a good, common sense statement that should be in mind whenever we are on the road.

NM Stat § 66-8-114. Careless driving:
A. Any person operating a vehicle on the highway shall give his full time and entire attention to the operation of the vehicle.
B. Any person who operates a vehicle in a careless, inattentive or imprudent manner, without due regard for the width, grade, curves, corners, traffic, weather and road conditions and all other attendant circumstances is guilty of a misdemeanor.

We feel that by adding language that holds those found guilty of careless driving accountable in a way that is commensurate with the outcome of their actions, more New Mexico drivers will adopt behaviors that prevent them from being careless.

There are many other points you can use to express your support for this legislation.  These include:

  • Survivors, victim’s families and friends are shocked and horrified to learn how little consequence the careless driver faces when their actions have cause someone to die.
  • As part of the larger effort to improve the driving habits of New Mexicans’ and make our streets and highways safer for all, New Mexico law needs to send the clear message that careless driving is not acceptable.
  • The change is small but goes a long way towards making the consequences of careless driving fit the outcome.
  • By adopting SB290 into law, New Mexico could be a state leading the way to better driver accountability.  We could join Colorado, Oregon and Delaware who have changed their careless driving laws in the past three years.  Don’t let us be last on this list too!
  • Although many feel this change is very important, it will have a relatively small impact on the New Mexico Judicial system, only an average of 17 cases per year.  More details can be seen in this NMDOT Analysis – Careless Driving Incident Rate. 

Here is a Senator Sample Letter you are welcome to use, all or in part.

Whatever you say, end by thanking the Senator and urging them to support SB290.

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Continue reading and following the links below to learn more about the impact of the current NM law on individual cases involving cyclists.

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The 2012 efforts of support for identical legislation got a lot of press coverage.

KRQE-TV story

KOAT-TV story

Op-Ed in Santa Fe New Mexican 12/27/2011

The crash that claimed Heather Reu‘s life in 2009 was caused by a distracted driver.

It is heartbreaking that there is a 2012 story to add to this page with almost the same script.  Scott Duane Lane was killed January 10, 2012 by a driver so distracted she didn’t even know she had run a red light.  This case wrapped up October 26, 2012 when the No Contest plea that Carol Svinarich entered resulted in her being sentenced to 90 days of “house arrest”, paying a $300.00 dollar fine and almost $18,000 dollars in restitution to the family.

KOAT-TV and KOB-TV have covered the 2009 Reu case and the ongoing efforts to increase the penalty options when crashes like this happen.

KOAT-TV reports on two crashes in Albuquerque last week and this legislative initiative on January 14, 2012.

Also in 2012, we have seen two other instances where the death of a cyclist has been punished by the same sentence a “careless driver” in a fender-bender crash would face.  Bruce Wickensburg, the driver who killed Dan Montoya was sentenced to 90 days suspended license and a $300.00 dollar fine.  Miranda Pacheco, found guilty of “careless driving”  by a jury in the death of David Anderson was sentenced to 90 days in jail and paying the $300.00 dollar fine.

 Basics about this legislation:

  •  This legislation (formerly HB12)  will increase the penalty options for a very distinct type of crash.  The crash must be due to careless driving that causes the great bodily harm or death of another road user.
  • Careless driving encompasses distracted and inattentive driving, including texting, cell phone use or any other activity that diverts a driver’s full attention from their duty to drive safely.

NMSA 66-8-114. Careless driving.
A.     Any person operating a vehicle on the highway shall give his full time and entire attention to the operation of the vehicle.

  1. Any person who operates a vehicle in a careless, inattentive or imprudent manner, without due regard for the width, grade, curves, corners, traffic, weather and road conditions and all other attendant circumstances is guilty of a misdemeanor.
  • Currently the maximum penalty for this misdemeanor is $300.00 and/or 90 days jail/probation no matter how minor or severe the consequences of the crash are.  That is why we see fender-bender crashes punished in the same way as a crash that kills or severely injures someone
  • This legislation seeks to make the punishment better fit the crime by increasing the maximum penalty for careless driving that causes the death or great bodily harm of another road user to $1000.00 and/or 364 days jail/probation.
  • This legislation (formerly HB12)  will have no effect on existing laws or penalties for homicide by vehicle cases.
  • This legislation (formerly HB12)  applies equally to all road users, regardless of vehicle type used.
  • Since 1979, when the mother of a teen age girl killed by a drunk driver started MADD, drivers across the country have become more aware of the risks of driving under the influence.  The alcohol related crash and fatality rates have come down in the last 33 years because of two things: (1) the increased awareness of the risks and (2) the increased cost of the behavior.  HB12 is following this successful model to raise awareness of the risks of careless driving and to put penalties on the books that will actually function as a deterrent.
  • It is currently against the law to drive carelessly.  We have to raise the cost of careless driving for NMSA 66-8-114 to be significant to drivers.  This legislation (formerly HB12) will do just that.
  • The New Mexico Motorcycle Rights Organization and Duke City Wheelmen Foundation, representing thousands of New Mexico road users, feel strongly that increasing the penalty options is an important component to achieving our goal of improving road safety.
  • Both organizations engage in numerous other activities equally important in reaching this goal, including educating motorcyclists, bicyclists and motorists on how to share the road, raising awareness through rides, rallies, media outreach of all types and the distribution of safety equipment.
  • We are asking for your support of This legislation (formerly HB12) in order to put this vital piece of the road safety puzzle into place.

Scott Dwane Lane

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Dwane Lane was riding his bicycle home from work on January 10, 2012 when Carol Svinarich ran a red light, killing Lane. He is survived by his wife Sheryl Kearby and four children. Lane was a family man, Scout leader, business man and well respected community member.

After nearly a month of investigation, Svinarich was charged with the maximum charge under curent New Mexico law, which is the misdemeanor charge of careless driving. This charge can result in a penalty of up to $300 dollars in fines and/or 90 days probation or jail time.

“It’s probably a good day for her. You know, 90 days is nothing, I’d be happy,” Sheryl Kearby, Lane’s widow, told KRQE News 13.

Duke City Wheelmen Foundation was able to assist the Lane family by placing a ghost bike at the site of the crash on March 23, 2012.

Another man riding a bicycle was also hit in Albuquerque on January 13, 2012. This man, later identified as Michael Ryan, died a few days later from his injuries. Ryan was thought to be a homeless individual. Unlike Lane, Ryan was riding improperly, crossing Lomas on a red light when hit. All cyclists’ are well served by riding with traffic and following all traffic rules, just as we expect from any vehicle on the road.

Everyone is safer when we all follow the rules.

David Anderson

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A set of “reckless driving” circumstances were documented sufficiently for the case against Miranda Pacheco, 25, in the death of cyclist David Anderson, 56, on March 22, 2010. Bernalillo County investigators were able to obtain statements from witnesses to Pacheco’s reckless driving prior to her swerving out-of-control, cutting across three lanes of traffic, traveling up the embankment, through a fence and crashing into Anderson on the Paseo del Norte multi-use path killing him instantly. Without this documentation of poor driving behavior before the crash she would NOT have been charged with “Homicide by Vehicle (reckless)”. The first trial began October 11, 2011, but resulted in a hung jury. The case will be retried starting October 1, 2012.

Roy Sekreta

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Roy Sekreta, 43, was headed home from work, commuting by bicycle as he did most days. One of the reasons he had come to Albuquerque was because it was possible to commute by bike most of the year. Northbound on the North Diversion Channel multi-use path he was attempting to cross Comanche Blvd on March 3, 2008. Nathaniel Martin, 25, traveling east bound on Comanche, hit Sekreta sending him flying through the air across the median into the westbound traffic lane and his bicycle all the way into the diversion channel. Sekreta was pronounced dead at the scene by an investigator from the Office of the Medical Examiner.

Meanwhile, Martin fled the scene. He returned about 30 minutes later. Martin told the investigating APD officer in a taped interview that “he made a lane change to the left lane so he could pass that vehicle in the right lane when all of a sudden a bicyclist came out of nowhere in front of him. Nathanial said that he estimated his speed to be about 50 M.P.H.” Comanche Blvd. has a posted speed limit of 40 mph in that area.

Examination of New Mexico court records reveals that Martin paid a $15.00 fine for speeding “up to 10 mph over limit” and $79.00 in court costs for his actions on March 3, 2008.

John Anczarski

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John Anczarski, 19, had ridden his bicycle, along with three friends, all the way from Ringtown PA to NM Highway 124, about 40 miles west of Albuquerque. This group, called Pink Pedal, was riding to raise money for breast cancer research. On June 21, 2010 Gilbert Waconda was driving this stretch of road at the same time, but looking for off to the opposite side of the road, when he crashed into Anczarski.

John’s parents, after flying to Albuquerque from Pennsylvania, took him off life support the next day, holding him as he succumbed to his injuries.

In a letter dated September 29, 2011, describing why Waconda would not be charged in the case, U. S. Attorney Kenneth Gonzales told Anczarski’s parents:

Under applicable federal criminal law, sustain a conviction for involuntary manslaughter, prosecutors must establish, beyond a reasonable doubt that a subject was reckless. Under controlling law, mere negligence or carelessness is insufficient to meet this burden of proof. Applying these legal standards to the facts established by the investigation, my Assistants and I have concluded that, although the evidence indicates that Mr. Waconda may have been inattentive of may have failed to keep a proper lookout, it was insufficient to prove beyond a reasonable doubt that Mr. Waconda’s conduct rose to the level of recklessness.

The handling of this case has raised concerns not just here in New Mexico.

John’s Aunt and Uncle visited the bike in 2011

Matt Trujillo

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Matthew Trujillo died on May 26, 2011 from injuries sustained on May 12, 2011. The motor vehicle driver in this case, Memori Hardwick, 20, crashed into Trujillo, 36, while running a red light, but more importantly was found to be under the influence of drugs. This combination of circumstances has led to a Grand Jury indictment on the charge of “Homicide by Vehicle (DUI).”

Due to Memori’s history with drugs, including outstanding charges, she chose to plead guilty to the charges of vehicluar homicide and leaving the scene.  She was sentenced on September 7, 2012 before District Judge Ross Sanchez.  She received a sentence of six years for the vehicluar homicide which will be served concurently with an 18 month sentence for posession of a controlled substance.  An additional three year sentence was imposed for leaving the scene of an accident that resulted in great bodily harm or death.  Hopefully a period of inpatient treatment at Delancey Street (a rehabilitation center) during the subsquent parole period will allow Memori to improve her life and avoid further drug use.

Santa Fe New Mexican Op-Ed

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Santa Fe New Mexican

LOOKING IN:
MAKE DRIVERS MORE ACCOUNTABLE FOR BIKE-CAR ACCIDENTS
Jennifer Buntz
Published: December 27, 2011


 Sept. 7, 2007, saw James Quinn and his wife, Ashley, out for a bicycle ride from Albuquerque toward Tijeras on old Route 66. They were on the shoulder, well out of the traffic lane, another group of cyclists just behind them. Angela Browning, 19, was driving in the same direction when she struck the couple, killing James, 28, and injuring Ashley.

Apparently Browning saw the group behind the Quinns, moving left to pass them, but did not see James and Ashley. In her written statement to Bernalillo County sheriff’s officers, Browning said, “I was going about 60 mph and swerved off the road. I didn’t even see him.” Browning was found guilty of careless driving and failure to maintain the lane, paying $310 in fines and $213 in court costs.

As participants in the Sept. 26, 2009, Tour de Ruidoso bicycle ride, John and Liz Mazzola, 59 and 56 at the time of this crash, were lawfully riding their tandem northbound on N.M. 48, part of the tour route. Phillip Berryhill, 56, was southbound on N.M. 48, getting ready to make a left, when he collided with the tandem riders. The Mazzolas were both severely injured in this crash with John spending 17 days fighting for his life in intensive care at University Hospital. John and Liz will struggle every day just to accomplish normal tasks because of the injuries they sustained.

Berryhill was cited with “failure to yield,” but the $71 in fines was deferred, so that by not being cited for any additional traffic violations in the next 90 days, Berryhill paid nothing.

Think about it for a moment. What is the life of a wife or husband, child or parent worth? What value do we place on our own lives?

On Sept. 22, 2011, David Chavez, 43, was riding a motorcycle westbound on Candelaria Road NE in Albuquerque. Isaac Wright, 69, wanted to make a left turn onto Candelaria from Stanford. For reasons unknown, he pulled out directly in front of Chavez, who, although he braked hard, hit the side of Wright’s Hyundai, flew through the air and crashed to his death.

A similar crash claimed the life of bicyclist Dan Montoya, 53, on May 12. In this instance, Montoya, riding lawfully on the shoulder of eastbound Tramway Boulevard, was struck by a westbound car. Bruce Wickensburg, 78, also for unknown reasons, crossed the center line, veered onto the shoulder and killed Montoya.

Although both of these cases are being pursued by the Bernalillo County District Attorney’s Office, the greatest possible penalty these two drivers face for taking a life is up to a $300 fine, 90 days of probation or jail time, or both, pending a “careless driving” conviction. Why? Under current New Mexico law, the charge of “homicide by vehicle” doesn’t apply. If a victim suffers severe bodily injury or death and the driver who caused the crash was driving in a “reckless” manner or intoxicated, then the charge applies. “Homicide by vehicle” is not applicable under current New Mexico law when the circumstances of the crash are “careless” rather than “reckless.”

There are examples of states where the laws have been amended to address crashes that result in death or great bodily harm, but were not the result of “reckless” driving. Colorado legislation enacted in 2010, Careless Driving Resulting in Death, increased the number of points added to a driver’s license from four to 12 upon conviction, which is enough for drivers’ license revocation. Traffic code in Montana also has a special provision for enhanced punishment options when careless driving results in death or serious bodily injury, upping the maximum fine from $100 to $5,000 and possible jail time not to exceed six months, or both.

Add to this the release on Dec. 13, a recommendation from the National Traffic Safety Board to ban all cellphone use, even hands-free, by drivers across the country, and you start to get a picture of the national trend toward holding drivers more accountable. We invite all road users to join us in challenging New Mexico to step-up and protect all of us now, on the forefront of this movement rather than ignoring the issue and again coming up at the bottom of yet another list.

Consult dukecitywheelmen.org to see what you can do to move this careless driving penalty initiative forward.

Jennifer Buntz is president, Duke City Wheelmen Foundation in Albuquerque.

Heather Reu

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Heather Reu, 42, together with her husband Phil, parented four beautiful adopted children, ages three through seven. She was an active member of her church, supporter of many charitable endeavors and a ready volunteer worker for many causes. She was also a triathlete and frequently did her bicycle training near their house on Albuquerque’s west side. On June 23, 2009 she was out for just such a training ride, proceeding lawfully, northbound on Paseo del Volcan. A vehicle driven by Daniel Gomez-Rubio, 40, struck her from behind. Heather died at the scene.
Gomez-Rubio attempted to flee the scene, but witnesses stopped him from leaving and he was arrested. Bernalillo County Sheriff’s Sgt. Brian Lindley said, “The tire of the vehicle Gomez was driving briefly left the roadway moments before he struck Reu.

Gomez-Rubio told investigators he “looked down to pick up his cell phone, which had fallen to the seat.”
Because Gomez-Rubio was not found to be under the influence of drugs or alcohol (DUI), the only other charge available under current New Mexico law that would have addressed Heather Reu’s death was Vehicular Homicide (Reckless). However the Grand Jury did not find that Gomez-Rubio’s actions met the definition of “reckless driving.” The most severe charge against Gomez-Rubio was for leaving the scene of a crash that caused great bodily harm or death. There were three additional misdemeanor charges, careless driving, possession of drug paraphernalia and driving with a suspended or revoked license.
Gomez-Rubio was eventually found guilty of leaving the scene of a crash that caused great bodily harm or death while the other charges were suspended in an agreement. The three year jail term of his sentence was reduced to 18 months, with another 18 months of supervised probation

Gomez-Rubio was not penalized for the actions that led to the death of Heather Reu.

If he had not fled the scene, his penalties would probably not have included jail time.

This is exactly the type of case for which we want better legal redress; cases where a road user is left dead or suffers great bodily harm at the hand of another road user who’s actions reflect “careless driving” (66-8-114) rather than “reckless driving” (66-8-113).

James Quinn

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September 7, 2007 was a very nice fall day in the Albuquerque area. James Quinn and his wife Ashley were riding their bicycles from Albuquerque east towards Tijeras on old Route 66. The couple had recently moved to Albuquerque for James, 28, to start classes at UNM’s School of Law. They were on the shoulder, well out of the traffic lane, with another group of cyclists just behind them.

Angela Browning, 19, driving a 2001 Mitsubishi passenger car was headed in the same direction when she struck the couple, killing James and injuring Ashley. Apparently Browning saw the group behind the Quinns, moving left to pass them, but in a statement to police she indicated she had not seen James and Ashley. In her written statement to Bernalillo County Sheriff’s officers Browning said “I was going about 60 mph and swerved off the road. I didn’t even see him.”

Browning was found guilty of careless driving and failing to maintain the lane, paying $310 dollars in fines and $213 in other court costs.