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.
Wes

Ride of Silence: Virginia Beach

Join your fellow cyclist as we honor those who have been killed or injured while cycling on public roads. On May 20, 2008, at 7:00 PM, the Ride of Silence will begin in North America and roll across the globe. We are going to ride from Landstown Commons down Dam Neck Road to General Booth Blvd and back. Our ride pace will be between 10 and 12 mph and we will remain silent while riding. Contact Jeff Hathaway at 757-572-1486 or editor_at_tbarides.org for more information. We will gather by the Bank of America ATM in front of Kohl’s.
3344 Princess Anne Road
Virginia Beach, Virginia 23456

MAP:http://maps.google.com/maps?f=d&source=s_d&saddr=&daddr=36.77661,-76.088347&hl=en&geocode=&mra=dme&mrcr=0&mrsp=1&sz=17&sll=36.776112,-76.087511&sspn=0.00385,0.006909&ie=UTF8&z=17

Cyclist Supposedly Had a "Blinkie"

From the PilotOnline:

Cyclist Had Lights

Submitted by ShareRoad on Fri, 05/08/2009 at 7:57 pm.

Dan did have lights as seen by friends of mine who came upon the scene afterwards an noticed the bike on ground from the blinking red light.

It will be interesting to see the VBPD report. As of now, the assertion that Dan had a tail light is both anonymous and unconfirmed. I'd like to see it substantiated...it will certainly change the discourse, as there would be no reason for the driver not to have seen Dan.

Cyclist for Commonwealth Attorney

Oh, no way...I never thought I'd see a Commonwealth Attorney candidate actually post on his campaign bio:

Athletics Mark lead the University of Virginia Cycling Team to back-to-back national championships. Mark excelled in professional stage races from California to Virginia. His successes in America allowed Mark the opportunity to compete in Europe, where he again showed himself to be a rising star in American cycling.

Reckless Driving

From Wikipedia

Virginia § 46.2-852.
Reckless driving; general rule. - Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.

Vote No Confidence, November 3rd

Harvey Bryant is up for reelection in a little less than six months.

After his refusal to attempt even a minimal prosecution of Dan Hersh's killer, I have little confidence in his ability to lead a staff of 92, and oversee 16,000 cases per year.

No Charges Filed

No charges for the unnamed killer of Dan Hersh.

Somehow I'm not surprised.
Harvey Bryant is a politician.
There are far more drivers than cyclists in Virginia Beach.
He knows better than to infuriate the voters who gave him his job .

Even though Harvey Bryant leads a team of "94 dedicated men and women who help prepare and prosecute approximately 16,000 cases per year," he can't find sufficient evidence “that would substantiate a criminal prosecution.” Apparently there are SIXTEEN THOUSAND crimes more important than the a citizen being killed on the roads of Virginia Beach.

I'm not asking for a charge of Second Degree Murder, or even Vehicular Manslaughter. I'd settle for Reckless Endangerment. So there isn't enough evidence for a felony? Well, Dan Hersh is dead, and I'd think that would be enough evidence for a misdemeanor.

If Dan's killer claims she didn't see him, then maybe she should take the driver's license exam again. After a 12 month wait.