Why Wasn’t The Driver Arrested?

Why Wasn’t the Driver Charged with a Crime?

Two reasons why a driver would not be arrested at a traffic accident in the New York City and Long Island area:

  1. The driver violated a section of the NYS Vehicle & Traffic Law which is a violation but did not commit a crime (see below); or
  2. There wasn’t sufficient evidence to prove a crime was committed.

Far too frequently, motorcyclists are killed because a driver wasn’t paying attention and we are asked by the grieving family, “Why wasn’t the driver arrested?”

It is usually with motorcycle accidents and pedestrian accidents involving a death when people ask “Why wasn’t the driver arrested?”

Unfortunately, family members don’t seem to get an adequate explanation from police or detectives. This article will attempt to provide an explanation for family members.

Can a Police Officer Arrest a Driver For Causing a Death?

I am a personal injury lawyer, not a criminal lawyer but it seems that within limited circumstances, a police officer can make an arrest for a violation of the New York State Vehicle & Traffic Law after an investigation has determined that probable cause exists, even though the violation was not made in the officer’s presence. See § 140.05, 140.10 1, 140.10 2. of the NY Criminal Procedure Law. But this New York criminal attorney’s blog states, otherwise, “However, for an officer to arrest a person for a non-criminal offense, the offense must be committed in the officer’s presence.”

The act itself of causing the death of a motorist or a pedestrian is not a crime. There must be some violation of the law to make an arrest. Often one or more of these NYS VTL Article 26 statutes are violated. We use these statutes, other statutes, and case law in our Summary Judgment motions to prove that a driver violated the law and was 100% at fault for causing the injuries. But we prove negligence, we don’t prosecute crimes.

When a Driver Might Be Arrested For Causing a Death

In New York City, a new law signed in June 2014 effective August 2014 made failing to yield to pedestrians and bicyclists a misdemeanor offense. But according to the Gothamist, the new law is hardly being used with only 1% of applicable accidents resulting in arrests.

It’s likely that in spite of the new law, police officers still go by the “rule of two” when deciding whether to make an arrest. In New York State, the “rule of two” is a policy (not a law) that a driver must have broken at least two traffic laws if an arrest is made for causing death or injury.

In this pedestrian death of a three-year-old child in Brooklyn, the driver of a Skittles van struck the child on a scooter when he was attempting to make a right turn. The driver was arrested and charged with 1) failure to exercise due care and 2) failure to yield to a pedestrian both of which are now misdemeanors.

Outside of New York City, the law is still undefined and confusing and police officers usually don’t make an arrest unless the “rule of two” is met.

In Nassau County and Suffolk County on Long Island, police officers will not even issue a traffic ticket at an accident unless the police officer witnessed the violation. This is because it would be almost impossible to obtain a conviction. In some upstate New York counties, police officers will issue a traffic ticket at an accident without witnessing the violation.

It would be highly unusual for a police officer to make an arrest for a traffic offense unless a crime has also been committed. If an arrest was made for a traffic infraction, it would be even more unusual to obtain a conviction or for a court to impose a sentence including time in jail or prison.

The definition of “offense” is found in Section 10 of the Penal Law and is a violation of any law for which imprisonment or a fine may be imposed including:

  • State Laws
  • Local Laws
  • Local Ordinances
  • Felonies
  • Misdemeanors; and
  • Petty offenses which include Violations and Traffic Infractions CPL § 1.20(39).

There are three levels of offenses in New York State:

  1. Felony
  2. Misdemeanor
  3. Petty Offense which includes violations and traffic infractions. A conviction for a petty offense is not considered a criminal conviction. Punishment can include incarceration for no more than15 days in jail and can also include fines, restitution, state surcharges, and/or community service.

An offense of the Penal Law is a crime, either a misdemeanor or a felony. A misdemeanor conviction is punishable by no more than one year in a county or city jail. A felony conviction is punishable by a term in NYS prison.

Insufficient Evidence

When a crime was or may have been committed, there may not be enough evidence to constitute probable cause for the police officer to make an arrest.

The police officer might feel that there could be probable cause but believe there isn’t 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

In many fatal accidents, the driver may have been speeding, 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. These are violations of NYS Vehicle and Traffic Law which is a lesser offense. It’s a traffic infraction, not a crime.

Note: In some states speeding is a misdemeanor, which is a crime, but speeding is not a crime in New York State.

The police will not arrest a driver and the court will not convict a driver only because someone died due to a driver’s negligence. A crime must have been committed.

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, in some cases, punitive damages against the people and or companies responsible for causing the motorcyclist’s death.

The failure to exercise due care is a violation of § 1146 of the NYS Vehicle and Traffic Law. This is what happens in almost all motorcycle and pedestrian accidents. The driver doesn’t see the motorcycle or the pedestrian. This is how we win most of our motorcycle accident and pedestrian accident cases. We prove that the driver didn’t see the motorcycle or pedestrian.

If a driver didn’t see the motorcycle when making a left turn, the driver also “failed to yield” which is a violation of the New York State Vehicle & Traffic Law.

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.

What Else Can Be Done?

When the driver of a car is involved in an accident causing the death of another person, the driver will be required to appear at a hearing conducted by an Administrative Law Judge at the NYS Department Of Motor Vehicles. The purpose of the hearing is to determine if the driver’s license should be suspended or revoked.

When a hearing is scheduled, we will appear at the hearing to monitor the hearing and to request permission to ask questions. An example of why this is important is a hearing we attended where the Administrative Law Judge did not ask enough questions. We questioned the driver and got the driver to admit fault. This resulted in the insurance company agreeing to pay their entire $500,000 insurance policy before a lawsuit needed to be filed.

When the Driver Will Be Arrested — Vehicular Crimes

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.

There are situations that 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.

Offenses Which Can Result in the Arrest and Prosecution of a Driver Causing a Motorcycle Accident

— Hit and Run

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.

We give out HURT911® Benefit Cards at motorcycle events which allow Members or a loved one to advertise a $5,000 cash reward (which will be paid by us) for the arrest and conviction of a driver who left the accident scene in a hit-and-run accident which injured or killed the motorcyclist.


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.

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Motorcycle Attorney Phil Franckel talks about how motorcycle accidents are different

Philip L. Franckel, Esq. is one of the Personal Injury Dream Team™ Founding Partners at 1-800-HURT-911® New York; He has a 10 Avvo rating; 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®.

Founding Partner Rob Plevy, Esq.

Long Island Motorcycle Accident Lawyer and Founding Partner Rob Plevy, Esq.

Robert Plevy, Esq. is one of the Personal Injury Dream Team™ Founding Partners at 1-800-HURT-911® New York. Robert began his legal career in 1993 as an Assistant Corporation Counsel defending The City of New York against personal injury lawsuits.

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