Can we answer Senator Frosh’s Questions in Time?

Thanks to the WABA members, WABA staff, Bike Maryland,  AAA, Baltimore Spokes, Adiva, and others for all of your work on HB 363. Our initial elation of finally passing the bill in the House of Delegates quickly gave way to apprehension that getting the bill through the Senate Judicial Proceedings Committee this year is an uphill battle because there is so little time. Your efforts this week have persuaded a couple of Senators who were initially undecided. But Committee Chairman Brian Frosh (D-Bethesda) is skeptical.

Fortunately, Senator Frosh has been very open and transparent about his skepticism, making it possible for us to at least try to address his concerns. Right now, someone can only be convicted of vehicular manslaughter if they know that their driving creates a substantial risk of killing someone; under the Model Penal Code standard (which H.B 363 adopts), one could be convicted of negligent homicide if they should know the driving had a substantial risk of killing someone.  Last Wednesday’s Washington Post had the following account:

To Frosh, that new standard could be applied to the mother who fatally hits a bicyclist when she takes a glance at a crying child in the back seat of her minivan.

“When moments of inattention can kill somebody, that’s a terrible thing,” Frosh said. “You can lose your house, your job, you can lose everything you own in a civil suit, but do we want to send that mother to jail.”

I’ve read a few hundred cases on negligent homicide in 8 states that have adopted the Model Penal Code standard over the last several days, to see whether there is a basis for this concern. I am making a table (complete for 4 states so far) that shows the facts that do and do not result in a conviction for those states. That table footnotes the supporting case law. It may end up as part of written testimony we submit. I’ll keep inserting new versions of that table.

The Post also reported:

To thread the needle to Frosh’s satisfaction, the bill’s advocates need to define “precisely what their target is.”

Will that hypothetical lady in the minivan who looks back into a car seat and kills a cyclist be guilty of negligent homicide? From the case law I have read so far it depends on what else was going on. Here are a few examples. Under existing law, she would not be guilty in any of these cases.

    1. If she was driving 30 mph over the limit, or in a bike lane, or cruising down a shoulder to pass a line of cars–and then looks back at her child and hits a cyclist: probably guilty.
    2. If she sees the cyclist ahead, and then looks back at her child and hits the cyclist: probably guilty.
    3. If there is a stop sign ahead that is clearly visible, and she looks back at her child and runs the stop sign and hits a cyclist: probably guilty.
    4. If the road ahead is clear, and she looks back at her child for 2 seconds during which time a cyclist enters the road and she hits him: not guilty.
    5. If the road ahead is clear and she looks back at her child, a cyclist enters the road, she crosses the double yellow line, and hits the cyclist: not guilty.
    6. If she runs a red light just barely before it turns green and hits a cyclist in the intersection after it turns green: not guilty.
    7. If she loses control of her vehicle while driving 70 mph through a safe-turn 45 mph sign when the speed limit is 55 mph: not guilty
    8. If the road ahead is not clear, and she accidentally crosses the double yellow line and hits a cyclist who was plainly visible before she looked back at her child: not guilty in New Hampshire; guilty in Arkansas (if she is a professional minivan driver). So other states could go either way, and even Arkansas might reverse the conviction for a nonprofessional driver.

(I am assuming here that she invokes her right to remain silent and no passengers testify against her. Passengers saying that they warned her against something that she did will hurt her case–maybe the passengers should help with the child.)

A few decades of case law from the states that already have a law like H.B. 363 shows that the term “substantial risk of death” does not apply to the necessary day-to-day activities in which people engage, so those activities could not be a cause for negligent homicide.

If you know of any other possible fact patterns that concern Senator Frosh (or any other Maryland Senator) please let us know and we’ll see if we can find a case that is at least generally on point.

(Jim Titus is a member of WABA’s Board of Directors from Prince Georges County)