Far too frequently, motorcyclists are killed because a driver wasn’t paying attention and we have often been asked by grieving parents, “Why wasn’t the driver arrested?”
Unfortunately, family members don’t seem to get an adequate explanation from police detectives. This article will provide an explanation for those family members who have not called us.
If a driver just wasn’t paying attention, as usually happens when a driver is making a left turn, it is usually not a crime but a violation of the New York State Vehicle & Traffic Law.
Whether or not a crime has been committed, the family/estate of the deceased motorcyclist can bring a civil lawsuit for wrongful death seeking money damages and punitive damages against the people and or companies responsible for causing the motorcyclist’s death.
We are often successful in proving a violation of the New York State Vehicle & Traffic Law by filing a motion for summary judgment which requests an order of the court ruling that the driver is 100% responsible for causing the motorcycle accident and provides 9% interest on any amount awarded.
There are some motorcycle accidents where the police do not file charges but could have. In these situations, we can help to bring pressure upon the police and District Attorney’s Office to file charges against the driver responsible for causing the death of a motorcyclist. Please call us 7 days/nights/weekends for a free consultation at 1-800-HURT-911 | 1-800-487-8911.
A violation is not a crime, however, there are situations which can elevate the motorcycle accident to a criminal offense, either a misdemeanor or felony, for causing the death of a motorcyclist. Following are some of the situations which can result in the arrest and prosecution of the driver causing a motorcycle accident:
When a driver leaves the scene of an accident (without exchanging identification, insurance and contact information) causing only property damage, it is a misdemeanor. When a driver leaves the scene of an accident causing injury, it is a felony. Usually, an arrest is not made where a driver leaves the scene of the accident and returns to the accident scene.
DUI / DWI / DWAI —
If a driver causes the death of a motorcyclist while intoxicated with a blood alcohol concentration (BAC) of 0.08 percent or higher or impaired by drugs, the driver will likely face serious felony charges including aggravated vehicular assault, criminally negligent homicide, vehicular manslaughter, murder in the second degree and jail or prison time (jail is for sentences of up to one year while prison is for sentences over one year).
The New York Department of Motor Vehicles lists penalties for an alcohol or drug-related violation. We believe the penalties are not severe enough.
We believe it’s time to treat a death caused by an intoxicated or impaired driver the same as Assault in the First Degree which (for a person with no criminal history) has a sentence of a mandatory minimum of 5 years and a maximum of up to 25 years. If you agree, send a letter to your county legislators, New York State Senators and the governor.
Reckless Driving —
The important and difficult question to ask and answer is what conduct constitutes reckless driving and what “unreasonably” means in the statute quoted below. I will not attempt to answer that question here but as an example, speeding at 10 mph over the speed limit would not constitute reckless driving while driving at 100 mph would constitute reckless driving.
It is unlawful for a driver to drive in a manner that may endanger another person. Reckless driving in New York means driving “in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway.” Every person found to be driving recklessly shall be guilty of a misdemeanor. A misdemeanor is punishable by up to one year in jail. (Vehicle and Traffic Law §1212).
A person is guilty of aggravated vehicular homicide when he or she engages in reckless driving and commits the crime of vehicular manslaughter in the second degree as defined by NY Penal Law §1212.