Archive for Friday, March 26, 2010

District attorney calls for changes to vehicular homicide law

March 26, 2010


Merle Zuel’s 23-year-old stepson was killed when a pickup truck hit his motorcycle on Sixth Street in 2004. The driver never even received a traffic ticket.

Thrown-out case spurs call for change

A district court judge threw out a case against a 23-year-old for hitting and killing a former KU professor with his car. Now, the district attorney wants the applicable law to be changed to be more specific. Enlarge video

“I can understand a person having an accident, which it was,” Zuel said. “It wasn’t intentional, but to pull out, hit someone and end a person’s life and not even get so much as a citation, that didn’t sit well with me.”

Dennis Bixby’s only child, 19-year-old Amanda Bixby, was killed by a driver who ran a stop sign in Leavenworth County on Valentine’s Day 2007.

The driver was fined $170.

What the law says

This is what the state’s vehicular homicide statute — 21-3405 — says:

• Vehicular homicide is the unintentional killing of a human being committed by the operation of an automobile, airplane, motor boat or other motor vehicle in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.

• Vehicular homicide is a class A person misdemeanor with a maximum sentence of one year in jail and a $2,500 fine.

“To see a young woman who has her whole life ahead of her, and the state of Kansas decides that her life was worth $170,” Dennis Bixby said. “That wasn’t enough. It was a real slap in the face.”

It’s stories like these and a case that was dismissed this week that have prompted Douglas County District Attorney Charles Branson to call for a thorough review of the state’s vehicular homicide statute.

“Fix it or get rid of it,” Branson said, “because it just simply is so unwieldy, so gray, that it makes it very difficult to use.”

Prosecutors’ concerns came to the forefront this week, when Douglas County District Judge Sally Pokorny threw out a case against Michael Peng, 23.

Peng was charged with vehicular homicide in the April 2009 death of 80-year-old Wally May.

The investigation showed Peng, who had not properly cleared frost from his windshield, struck and killed May as the former KU professor was on a morning walk in the 200 block of North Michigan street.

But Pokorny ruled there was not enough evidence for a jury to consider the case and dismissed it.

“It kind of came as a little bit of a shock,” Branson said, although his office in the past has had problems with both the wording of the statute and the Kansas Supreme Court’s interpretation of the law.

“What’s really upsetting to me with the state of the statute is the lack of direction that’s in it,” Branson said. “We really need a statute that’s better written to guide the prosecutors and judges. Or, quite frankly, it’s in such a state that it’s so hard to use, we should even consider getting rid of it.”

The term “material deviation” is the crux of the problem, according to Branson. The vehicular homicide statute, which has been on the books since 1969, basically states a driver must be operating a vehicle in a manner which “constitutes a material deviation from the standard of care” that another reasonable person would use.

The Kansas Supreme Court, in reviewing vehicular homicide cases, has ruled that it has to be more than a mere traffic accident that causes a death. Simply running a stop sign or speeding does not constitute vehicular homicide.

“It makes some extremely difficult cases for us to prove, because no one knows what a material deviation is,” Branson said. “It’s one of those, I-know-it-when-I-see-it type of things, but everybody differs on what it should be.”

Branson said he plans on talking to legislators in hopes of getting them to review the confusing statute.

That’s a task Dennis Bixby tackled after his daughter’s death in 2007.

“I counted, it took me 62 trips to Topeka,” Bixby said. “Being there at every single hearing, that’s what it is going to take to get a bill passed.”

The Bixbys were eventually successful in 2008 with getting Amanda’s Law passed, which requires mandatory drug testing for drivers involved in serious or fatality traffic accidents.

But the law did nothing to clarify the vehicular homicide statute.

“The law is very weak,” Bixby said. “Really what they need to do is look at other states, see what their vehicular homicide laws are and try to adopt one with the strongest language.”

When Merle Zuel looks back on all his stepson, Matt Thompson, missed out on, he agrees.

“He had his whole life ahead of him,” Zuel said. “(The driver) should have at least lost her driving privileges. Hello, you just killed someone, pay attention.”


kansasredlegs 7 years, 11 months ago

I certainly have sympathy for those injured or killed during these unfortunate incidents and understand the emotions of wanting some form of punishment for those deemed negligent in their behavior. However, the State of Kansas rightfully does not recognize "Negligent Homicide" as a felony criminal act.

The definition, "in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances" is statutory language for negligence. One must remember that in negligence cases, the simple violation of a law, ordinance or regulation could be deemed to be a "per se" breach of the standard of care required. Thus, a person simply driving 1 mph over the posted speed limit could arguably be found to have breached his or her standard of care. If so, then society must be prepared to accept that accidents no longer exist and that all conduct, with no concern for a person's intentions, would be essentially a criminal act if someone is seriously injured or killed.

If you want to recognize such negligence as criminal, then it begs the question of where do you draw the line? Just in traffic cases? Do we charge an individual when: Speeding less than 5 mph over the limit? 10 mph over posted limit? Too fast for conditions? Failure to use turn signal? Didn't have wipers on when misting? Had wipers on interval when should have been on? Headlight burned out? Brake lights failed to illuminate?

If the State opens the criminalization of negligence, it then must apply to doctors, nurses, paramedics, police officers, troopers, etc. who cause harm in the performance of their duties? Do we want surgeons who are "negligent" and cause great harm (cut off wrong leg) and/or death as a result of such negligence, but no criminal intent, prosecuted for negligence. I would hope not.

rbwaa 7 years, 11 months ago

this is what legislators should be doing with our time instead of passing a stupid bill naming little bluestem the state grass!! are we paying those idiots to sit around on their thumbs pretending they are doing something or even worth anything??

[i'm not even mentioning the other idiotic crap they have been spending time on]

Food_for_Thought 7 years, 11 months ago


Something to think about-

One could say that "negligent" behavior is synonymous with "reckless" behavior. Choosing to drive your car knowingly without clearing off your windshield to ensure you have a clear and visible view of the road and your surroundings is careless, and I would confidently argue that it can also be construed as "reckless". Peng was "careless" enough not to clear off his windshield, and as a result, he was not able to see the person in the roadway whom he eventually struck and killed.

Try looking up Kansas' battery and aggravated battery statutes. One need only be acting "recklessly" to be guilty of battery...and aggravated battery IS a felony. Douglas County courts do not seem likely to pursue such a charge, but I don't see any reason why something like this could not easily fall under the "aggravated battery" statute...

Liberty275 7 years, 11 months ago

Regarding windshields. On a recent trip to the north, at night, I was driving along with what appeared to be a clear windshield, meaning I could see pretty well for 65MPH. As we crested an overpass though a group of cars coming from the other direction also crested the overpass and the glare from their headlights took my visibility from hundreds of feet literally to nothing but the hood of my car. I hit the breaks and slowed to almost nothing until thise cars passed and I could see again. A similar thing happens twice a year for a week or so. You can be driving north to south and see very well, but the moment you turn to the east or west (depending on if its morning or evening) you windshield can go opaque from sunlight on the slightest bit of frost or condensation. It's possible a condition like this may have caused the accident, where the driver could see perfectly one moment and then the next be blinded by an oncoming car or a streetlight.

The thought of a person going to prison because something like that led to a horrible accident is chilling to say the least. This is a very slippery slope.

cowboy 7 years, 11 months ago

The city needs an awareness campaign targeted at both drivers , pedestrians , and yes those dreaded cyclists. I have run across the pedestrians that think they are invincible and don't even look around for traffic , today the bicyclist that just blew thru the stop sign at 31st and Louisiana , the motorcyclist today on the crotch rocket on 23rd weaving between cars , and the plethora of rude and hurried up drivers. All of these dangerous behaviors coincidentally meet up in these tragic accidents. Some are clear cut , many are not at all.

I hit a kid on 27th last year. I putt along and saw this kid ahead and slowed down , he was not on a crosswalk , wasn't looking my direction at all , turned and stepped right out into the road. I hit the brakes immediately and he heard the screech and turned to face me. I hit him going maybe a couple miles an hour and knocked him down. Scared the crap out of both me and him. We were blessed that day , me with the good lord having me watch him , and he with the luck of the stupid saving him from a serious injury.

The point is pedestrians should always be wary of the 5000lb vehicles coming their way and not play the " I have the right of way game". you will lose that game more often than not. For those who leave the scene I say hammer them ! Thats the law that really needs to be stiffened up. I think most of us can understand an accident but leaving the scene of an injury accident is unexcusable and should be punished with equal penalties as obvious crimes of negligence would be.

Kontum1972 7 years, 11 months ago

driving is a priv,,go to pris,,or the the death pen

Kontum1972 7 years, 11 months ago

when i came home today i was on 6th street...i counted 14 drivers on cell phones

Evan Ridenour 7 years, 11 months ago

Kansasredlegs, there are plenty of criminal statutes where criminal negligence is a standard of mens rea. Intent is not a requirement for all criminal culpability. Almost every "fact" in your post is wrong on its face. I suggest you educate yourself with a simple google search of the subject. The analogy you draw is asinine. Speeding by 5 miles per hour is hardly comparable to not bothering to defrost your windshield so you can see and then proceeding to drive your several thousand pound vehicle at high speed through a crosswalk that may or may not contain a person (which you of course can't see because you didn't clear your windshield). I mean seriously, that is possibly the most lame analogy I have heard in my life.

The issue here is that an element of this statute is so poorly defined that the statute can't be applied... not that the state can't criminalize a negligence standard of mens rea or that there is a danger of overapplication of the statute.

Richard Heckler 7 years, 11 months ago

Branson is doing the right thing asking for clarification if enforcement and prosecution are desired.

Cell phone talking and texting should be restricted - pull over and park otherwise traffic citations should be issued - mandatory $200 the first time

Running Stop signs and red lights - a zero forgiveness mandatory $200 fine the first time no matter what type of vehicle. If real teeth were written into an ordinance enforcement might step up a bit.

I support many more "marked crosswalks" in Lawrence than the city cares to mark. However these marked crosswalks cannot guarantee safe travel if drivers are not willing to realize that pedestrians do have some rights to cross. Slow down drivers in the neighborhoods despite the speed limit. 6th,9th,11th,13th,15th,19th,Connecticut,Barker,Mass,Tenn,Kentucky etc etc etc are neighborhood streets.

Pedestrians no matter what look all ways before crossing. That's our job as pedestrians. Stepping out in front of a car will never be any fun.

Drivers do not legitimately have the right of way always simply because they are bigger and deadlier. Knowing they are bigger and deadlier should always demand they assume a bit more responsibility. To assume any other position might indeed be reckless.

somebodynew 7 years, 11 months ago

I understand some of the arguments presented here, BUT, I think you all are forgetting one little fact.

If I remember correctly, this pedestrian was on the SIDEWALK when struck, by a guy who couldn't take the time to clear his windshield. To me, that adds a whole lot to the deviation from standard behavior. It might be different if the guy was walking on the street, but to drive onto a sidewalk because you can't see . . . . . .???

Richard Heckler 7 years, 11 months ago

There are plenty of built in blind spots so not cleaning off the windshield seems a tad bit irresponsible....

Then again we do not have all of the facts.....

kanshawk 7 years, 11 months ago

id assume if he was driving on the sidewalk its not because he couldn't see but because he lost control of the vehicle. possibly due to poor road conditions? snow and or ice maybe? but who knows.

jhokfan 7 years, 11 months ago

As a juror I would be a lot more sympathetic to a driver involved in a fatal accident who was driving in a responsible manner even if he/she made a mistake. It has to do with the drivers intent.

However, there are people who drive so aggressively and recklessly it is the equivalent of randomly firing a gun in a crowd. They may not hit anyone but their intent is clearly not protecting the safety of others. It never ceases to amaze me how many people are willing to drive in a manner that compromises the safety of their fellow drivers. Short of automakers installing airline type black boxes I don’t know how to get these people off the road.

verity 7 years, 11 months ago

I thought the sidewalk crossed the drive, not that Peng was driving on the sidewalk, but over it.

I'm for making the laws tougher---especially when it comes to drunk driving, but excessive speed and talking on the phone or texting should also be taken into account.

I'm with cowboy and Merrill on this one. We all need to watch out and be more careful. It may be someone else's fault, but you'll still be just as dead. When someone is walking it is easy to think that you are more visible than you are. I won't step into a crosswalk unless I see that the driver is slowing down or has stopped. Too many times drivers are watching for other traffic and not expecting a person in a crosswalk---or will try to beat you to it. Most so-called accidents would not happen if people were paying attention.

Also there are many blind intersections in this town. The city needs to deal with that. Install stop signs and cut back trees and shrubs that block the view. I know people on these boards would complain bitterly about having to trim back their landscaping, but Lawrence has a lot less restrictive laws on many things than a lot of towns and they deal with it. Too bad these kind of laws have to be made. Wouldn't happen if people would try to be more careful and considerate.

verity 7 years, 11 months ago

jhokfan, I just saw your comment after I posted mine. I agree completely.

Food_for_Thought 7 years, 11 months ago


Do you really consider someone who is too lazy to clear the frost off their windshield before driving their vehicle down the road to be demonstrating "responsible driving"? It did result in the unnecessary death of a pedestrian, remember...

And you speak of driver's does that mean you're alright with someone pointing a gun outside and pulling the trigger with his eyes closed? If he hit someone, the shooter did not "intend" to hit the victim; however, it is inarguable that the shooter would be doing so carelessly, and therefore "recklessly".

blahhhh 7 years, 11 months ago

I saw Matt Thompsen wreck back in 2004. Shortly before his accident, he was in and out of traffic, passing cars, and also passed my friend and I going at a pretty fast speed. Yes, it was awful that he lost his life, but from the driving I saw him doing, I don't think the driver of the other car should take all the blame.

evilwickedsire 7 years, 11 months ago

Matt was one of my best friends, and when he was lost he was in his lane following traffic laws, even had his helmet on! I applaud the District attorney for what he is doing facts are facts the driver came out too far and should have gotten a ticket and also agree with Merl! That horrible day we lost a brother, a son, just an all around good guy! gone but never forgotten. Big J

jhokfan 7 years, 11 months ago

Food for thought:

Answer to first question, no. My comments were made regarding driving in general and not to the point of the incident described in this story.

Answer to second question, no. It may not have been the shooters intent to hit someone but his intent was clearly not in the interest of the safety of those people in your hypothetical situation.

Jock Navels 7 years, 11 months ago

while dealing with this question, maybe we should all sit back and realize we can't live in a risk free world, and we shouldn't get whacked all out of shape when random tragedies occur...there is a lot of risk involved in riding a motorcycle. there is some risk involved in walking in a roadway. there is risk involved in everything we do...we can't legislate risk away, nor can we eliminate it by making the participants in a risk event criminals...we are all ultimately responsible for our own situations...

kansasredlegs 7 years, 11 months ago

Eride: You miss the point. Violation of a statute, ordinance or regulation in "negligence" cases is a "per se" breach of duty of care. "Per se" mean any violation, not just the ones you don't think matter or don't fit your logic or reasoning. You can Gogle that all you want, but I suggest you try looking at Kansas Supreme Court rulings. You just might find them interesting reading.

Evan Ridenour 7 years, 11 months ago

Kansasredlegs... umm... wow. Read what I said again and maybe take my suggestion to read up on criminal negligence and mens rea to heart.

jmhroofer 7 years, 11 months ago

In all aspects of life, keep your head up and look twice. (maybe more if you are entering two lanes or crossing up to four) Blahhhh, this is not a paticular incident issue as this would effect a entire city law. Little J

jmhroofer 7 years, 11 months ago

My apologies, STATE not just city law.

Bruce Liddel 7 years, 11 months ago

jocknavals is exactly right.

Yes, the law is vague, perhaps even unconstitutionally so, as the myriad of varying public interpretations here on this discussion amply prove.

I empathize with those who have lost a friend or loved one, but neither imprisoning a driver for life, nor applying capital punishment to a surviving driver, is going to bring the loved one or friend back to life.

No legislative body has ever successfully legislated human behavior.

I think the point we should all take from this tragedy is to do our level best to do everything we can ourselves to prevent accidents, not by obeying arbitrary or capricious regulations, but by employing common sense and paying proper attention to the task at hand. This boils down to driving defensively, as though nobody else knows you are there, and driving as though your life depends on it, which it does.

How do we get the dangerous drivers off the road? Start by not being one of them!

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