Sunday, May 17, 2009

A Meeting with Commonwealth Attorney Harvey Bryant

Jeff Lawson (yes, that Jeff Lawson), met with the Virginia Beach Commonwealth Attorney, Harvey Bryant, and posted the following report to the Virginia Cycling Association listserv:

Today [May 15, 2009], VCA president Bill Collins, avid cyclist Dr. Dan Darby, and I met with Va. Beach Commonwealth's Attorney Harvey Bryant about the death of Daniel Hersh. We also addressed the issue of overall cycling safety and ways to address the concerns that we have as cyclists who frequently feel that we don't get a fair shake by authorities.

After spending 2 hours meeting with Mr. Bryant I can safely say that none of us like what we heard but we are all in agreement with his assessment that no charges could be brought against the driver that killed Mr. Hersh. Both reckless driving and involuntary manslaughter charges require "willful intent". Bryant showed us case law and explained what constitutes willful intent. For example, someone that tries to run a red light and kills someone DOES meet the definition of willful intent while someone who runs a red light that they didn't see does NOT meet the definition. If someone falls asleep at the wheel and causes a death they cannot be charged with involuntary manslaughter or reckless driving unless it can be proven they knew they were tired and willfully intended to drive anyway (eg pulling over and taking a nap then later hitting someone, or taking a caffeine pill).

In a lot of the emails and letters to the editor over the past few weeks a lot of people have been angered by Mr. Bryant's statement that the driver who killed Dan wasn't drinking, texting, smoking, doing her nails etc when she hit him and wondered why that would matter. Unfortunately those are indeed required in cases where the driver claims they didn't see the person, whether the victim was a cyclist, pedestrian, or whomever.

If a driver does see a person and hits them then everything changes and they can more easily be charged. That is why in a case like this where there is no proof of distracted driving it becomes vital to have either an eyewitness or have some sort of proof that the driver saw the person that they hit. In this case there was only one witness and their statement actually corroborated the driver's statement that she didn't see Dan. She said that she didn't see him and didn't even know she had hit anyone until she saw him on the ground. The witness said that they came upon the scene as the driver was getting out of the car and that she was looking around perplexed and looking under the car trying to see what is was she had hit and that they had to point to the other side of the car to let her know that Dan was lying there.

We then asked about lesser charges like the obvious fact that she didn't give him the necessary 2 foot clearance but, again, the law requires that you have to see something to give it a clearance.

So, the bottom line is that without evidence of willful intent or distracted driving there was no way to charge the driver with anything, especially since she claimed she didn't see him. I would also add that in the re-enactment that the police reconstruction team did there was a significant glare from the rising sun at the spot where she hit Dan although I thought from the news reports that the accident happened just before sunrise.

One final thought about this case before I get into some other issues that we discussed: Mr. Bryant's only son is a triathlete and rountinely trains out on the roads like we do. Bryant also says he spent hours explaining to his wife why he couldn't charge the driver because as the mother of a cyclist she was upset.

On the subject of general cycling safety a number of issues were raised and I think some headway was made on possible solutions. Instead of writing them in this email I think it would be better to address them in a separate email since there might be a significant number of people that missed reading this missive because they weren't from VB, didn't care about the case, or didn't know what the meeting with the VB CA was about.

So look for another email soon.

Jeff Lawson
VP Va. Cycling Association

Yep, I'm disappointed and frustrated, too, but after reading Jeff's email, I can at least understand a little bit better why no charges were filed.

As a friend said in response, "It looks like we need to change the law."

So please, folks, consider joining an advocacy group, such as the Tidewater Bicycle Association, Virginia Bicycle Federation or BikeWalk Virginia. All of them do an excellent job of lobbying for cycling infrastructure and educating the public.

And ride safe: whenever we're on our bikes, we are ambassadors of cycling: be courteous, be friendly, be seen.


Casey A said...

I understand why the driver was not charged with manslaughter, but I still don't get why she was not charged with a traffic violation based on the failure to overtake safely. A driver who is exercising due care should see a cyclist riding directly in front of them -- the fact that the driver did not see the cyclist demonstrates negligence (a concept applicable to civil cases, but also relevant to whether the driver should be ticketed). Am I missing something?

Anonymous said...

I Agree with Casey A. I cannot understand why the driver was not ticketed. Had the driver struck another auto while overtaking she certainly would have recieved a citation.

Whitaker said...

The explanation for the absence of charges in this incident is completely unsatisfactory.

If we accept for the moment that "willful intent" is required, the fundamental question is why didn't the driver see the cyclist? Clearly the cyclist didn't drop down from the sky and there is no suggestion or reason to believe that he flung himself at the vehicle from a right angle. The best explanation provided is that the police reconstruction team found "a significant glare from the rising sun at the spot where she hit Dan."


Driving into a significant glare that prevents one from seeing what's in the road ahead clearly meets the test of "willful intent." Commonwealth Attorney Bryant is wrong, and don't let him tell you different.

Anonymous said...

As an avid cyclist, competitive triathlete, former prosecutor and lawyer who helps injured cyclists and other athletes, I understand the wilfullness & intent necessary to charge the Defendant with crimes commensurate with the taking of a life. But why not "Improper Driving" or "Failure to Pay Full Time and Attention" or other similar, lesser included offenses ? With no charges whatsoever, the Defendant's official DMV record may not reflect this tragic accident, and driving blindly into the sun near where they live (and perhaps travel regularly) posts an unreasonable risk of harm to other cyclists, pedestrians, joggers, skate boarders, rollerbladers and others who may be out at that hour. Do motorists now get a "one free bite" as is the case when dogs attack cyclists, runners and pedestrians ? Doug Landau, ABRAMS LANDAU, Ltd., Herndon, VA (at the 20 mile marker for the W&OD Trail)

Anonymous said...

I also agree with Casey. Someone is being protected. What's new in VB?

The real guilty party, is the City and road planners. We need and deserve safe walking and biking paths throughout the City. Biker's shouldn't share a road designed for auto Mobiles, and auto Mobiles, shouldn't share their limited space, with bikers. Water & Oil don't mix, and neither do bikers and autos.

It's all about M O N E Y. Motor Vehicles are INSURED. Bikes don't have the same monetary value.

Join Tea Parties. Join Taxpayer Alliances. Stand up for your rights, while you still have a few left. Take you kids to Council Meetings. Find out what's really happening with your money.

Nate said...

The family of Dan Hersh should pursue a civil suit for wrongful death. Sometimes that is the only way any justice is served.