- 1 Why wasn’t the driver charged with a crime? Two possible reasons
- 2 Vehicular Crimes
Why wasn’t the driver charged with a crime? Two possible reasons
- There wasn’t sufficient evidence to prove a crime was committed; or
- The driver violated a section of the NYS Vehicle & Traffic Law which is a violation but not a crime (see below).
Far too frequently, motorcyclists are killed because a driver wasn’t paying attention and we have been asked by grieving family, “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.
When a crime was or may have been committed, there may not be enough evidence for the district attorney to prove guilt. It is unethical for the district attorney to prosecute if they don’t believe there is enough evidence to obtain a conviction.
For instance, a) a driver may have been drunk but the alcohol test was taken too late so it didn’t show the driver was drunk; b) the driver was on drugs but was only given a breathalyzer; c) the police officer didn’t have probable cause; or one of many other reasons.
The Driver Committed a Violation
The driver may have made an illegal U-turn or passed a stop sign or red light but just because it’s illegal that doesn’t mean it’s a crime. A misdemeanor or felony is a crime but running a stop sign or red light is a violation which is a lesser offense. A violation is not a crime.
If a driver didn’t see the motorcycle when making a left turn, the driver “failed to yield” which is 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 some 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 such as speeding is not a crime, however, there are situations which can elevate a motorcycle accident to a criminal offense, either a misdemeanor or felony, for causing the death of a motorcyclist.
The two most common vehicular crimes in New York are vehicular assault and vehicular manslaughter.
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.
If you were a victim of a crime, you may be able to obtain compensation through a lawsuit but you can also file a claim with the New York State Office of Victim Services.
Philip L. Franckel, Esq. is a Partner at FRANCKEL & PLEVY, LLP Accident Attorneys at 1-800-HURT-911®; Rated 10 by Avvo; Avvo Client’s Choice with all 5 star reviews; Avvo Top Contributor; and a former Member of the Board of Directors of the New York State Trial Lawyers Association. Mr. Franckel is well known in New York for representing motorcyclists and created the motorcycle awareness campaign BE AWARE MOTORCYCLES ARE EVERYWHERE®. Mr. Franckel is also President of 1-800-HURT-911, Inc. and publishes LawyerAdvertisingBlog.com