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.
“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.”