When should an accident be considered a crime?

Friday, Dec. 3, 2004 | 6:25 a.m.

WEEKEND EDITION

December 4 - 5, 2004

Over the last year, Las Vegas has seen a string of tragic accidents caused by inattentiveness or, in some cases, a lack of common sense:

A person tries jaywalking across one of the valley's wide boulevards and is hit by a car.

Children find a gun in the house, play with it and it goes off, the bullet striking one of them.

Parents intentionally or unintentionally leave children in parked cars, sometimes with tragic results.

A couple decides to go "car surfing," with the surfer climbing on the roof. The driver takes off but stops short, sending the surfer to the pavement, causing critical injuries.

The incidents, often seen as all-too-common accidents, have set off a debate among police, prosecutors and lawmakers who are trying to define when an "accident" becomes a crime.

The answer lies somewhere between a prosecutor's view of the law, the way the law is written and the facts of the case. The answer, however, doesn't always seem clear.

For instance, in 2003 a Las Vegas father left his infant in a van and the child died, but the father, a schoolteacher, was not prosecuted because he told authorities he forgot his son was there.

However, a father earlier this year left his sleeping child in a locked and air-conditioned car to get a cup of coffee in a Starbucks. He was charged though no harm came to the child.

"The issue and the element of the law that is involved here (children left in cars) is intent, even if one incident has a much more tragic outcome than the other," Dick Morgan, dean of UNLV's Boyd School of Law, said.

"What was the state of mind of the person? The intent in the incident where the child died was not to leave the child in the car. The intent in the incident where no harm came to the child was to leave the child in the car, even briefly."

Morgan noted that a prosecutor, who "has a great amount of discretion," also could say to the man whose child survived that he "did something stupid, but that he won't be prosecuted because there was no harm, no foul."

Clark County District Attorney David Roger, however, said even though there is "public pressure from both sides on these issues," the law is fairly clear.

And lawmakers are hesitant to change such laws simply to address the bad judgment or stupidity of the few.

Roger's interpretation of the law and whether to prosecute child endangerment cases mirrors what Morgan and other experts say about intent.

"The key here is does someone 'willfully' cause a child to suffer?" Roger said.

Roger said he prosecutes those who willingly put children at risk, even by leaving kids alone for a few minutes, because in that time a number of bad things can happen to the children.

"For one, the car could be stolen," he said. "Also, there are pedophiles who wait for such opportunities to take children. Just because it didn't happen that time does not mean it won't ever happen. The issue is that the child was left exposed to that situation."

Roger said that despite criticism that too much discretion is left to his office regarding prosecution of such cases, he has filed charges against adults leaving children in cars in all but three instances since he took office in January 2003.

In each of those exceptions, it was determined by investigators that parents unintentionally left the children in cars -- what Roger calls the defined line between a crime and a nonprosecutable incident, he said.

Morgan said that he believes Roger is "making a very strong effort to do just things within the constraints of the law. Even if the result looks strange, he has strived to take a legally correct position."

But that, Morgan said, does not mean people have to be happy with the decisions Roger makes.

"A decision may be legally defensible, but not necessarily popular with the public and thus subject to criticism," Morgan said.

Clark County Public Defender Phil Kohn said society, hungering for punishment of wrongful acts -- even unintentional ones, wants to see criminal prosecutions even though that may not be the most appropriate action.

"Everyone has rolled through a stop sign unintentionally, but few of those incidents result in someone getting killed," Kohn said. "Yet when that happens, some people want the driver to be brought up on murder charges. They don't stop to think that 'there but for the grace of God go I.' "

Others argue that accidents are not accidental.

"Every accident is preventable," Metro Police Traffic Sgt. Frank Weigand said, regarding why police submit cases to the district attorney for potential criminal prosecution. "They all involve some instance where someone did something irresponsible."

Regardless, the law restricts what can be done.

"A mistake in judgment becomes a crime when the Legislature determines it," Roger said, noting that prosecutors still interpret the law based on the facts and the statutes.

But his office has faced several incidents where the law is far from a perfect fit.

In addition to the various incidents of parents leaving children in cars this past summer, authorities have had to make decisions on whether to charge two children who shot playmates.

And they've had to deal with car surfing. In some cases, especially auto-pedestrian accidents, the prosecution appears to be handcuffed by the law.

In one instance this year, a 13-year-old bicyclist was hit by a car while the teen was riding his bike through a crosswalk.

Police determined that although the driver was not paying attention because she was fumbling for her ringing cell phone and hit the boy, the teen cyclist, who survived but suffered head injuries, was partially responsible because under the law he should have been walking the bike through the crosswalk.

The driver was charged with a misdemeanor and paid $1,220 in restitution, sparking further public outcry. But even if the boy had died, she probably would have faced no greater criminal repercussions, experts say.

"In vehicular deaths where alcohol is not involved, there are only a couple of charges we can file, and one is involuntary manslaughter," Roger said about why drivers aren't punished more harshly when their victims die.

"The Nevada Supreme Court has interpreted that there has to be more than negligence involved. There has to be 'willful and wanton disregard' " to levy the more serious charge of reckless driving, he said.

Erin Breen, director of Safe Community Partnership, a transportation safety outreach program at UNLV, says the law needs to be reviewed to see if something can be done to better protect pedestrians and bicyclists.

"My intent is not to put people who make mistakes in jail, but this incident (the teen cyclist in the crosswalk) demonstrates that more needs to be done for the sake of victims," Breen said.

Roger says he plans to submit a bill to the 2005 Legislature to create a misdemeanor manslaughter crime to further punish errant motorists.

During the last legislative session, Roger supported a similar bill that would not have increased the penalty but would have placed on the offender's record a manslaughter conviction for killing someone. It failed.

State Senate Minority Leader Dina Titus, D-Las Vegas, said she is not so sure she will support such a measure because she says that for all the complaints that are made about pedestrians not getting justice when hit by cars, she does not see a clear-cut message from constituents that they want the motorist/pedestrian laws changed.

Titus says if there are so many people who want to change traffic laws, why has there been so much opposition to putting cameras on traffic lights to catch people who speed through them and harm pedestrians?

"I don't want to create a nanny state," she said.

Titus, a Senate Judiciary Committee member since 1989, refers to government, in effect, treating the public like helpless children in need of constant supervision and protection by passing laws to address nearly every possibility -- especially in cases where stupidity plays a significant role.

"We do not want to tie the hands of district attorneys or judges," she said. "We want to leave some discretion because individual cases vary."

But some argue that the law doesn't allow for that discretion because it doesn't take into account the variety of possibilities.

For example, the issue of children finding guns hidden in homes and accidentally shooting other children launched debate this year over youth arrest procedures, how the cases should be tried, whether gun locks should be mandatory and whether parents should be charged for negligence.

A 15-year-old boy accidentally shot his 14-year-old sister in the head after finding a gun in the family's home. Weeks later, a 15-year-old boy shot a 14-year-old boy while the two were imitating cops and robbers with a gun they found in the home of the shooter. Both 14-year-olds died.

"I was not outraged that they were prosecuted -- I was opposed to them being charged with murder and kept (for a while) in the adult court system," Public Defender Kohn said. The cases eventually went to juvenile court.

"There was no intent (to kill the other child). From the start, involuntary manslaughter should have been the charges filed in those cases."

In both instances, the teens pleaded guilty to involuntary manslaughter.

Roger maintains that both should have been charged with second-degree murder. However, he said he backed off on that more serious charge so they could be punished through the juvenile system on the lesser charge. "Time will tell if it was a fair resolution," Roger said. "Whether you intend to do an unlawful act or not, sticking a gun to someone's head is a crime and, according to the statute, second-degree murder was the appropriate charge in these cases."

The law, in Roger's view, gave little leeway.

In another case, prosecutors had a difficult time figuring out how -- and if -- they should charge someone with a crime.

Earlier this year, a 29-year-old Las Vegas man was hospitalized in serious condition after being thrown from the hood of a car driven by his wife.

Authorities charged the wife with misdemeanor reckless driving instead of a gross misdemeanor or felony because her blood-alcohol level was below the 0.8 legal limit, North Las Vegas Police spokesman Tim Bedwell said.

The victim was charged with misdemeanor unlawful riding, Bedwell said, noting that North Las Vegas police "have a zero tolerance policy" for car surfing, even for victims.

The North Las Vegas city attorney's office will prosecute the case because it's a misdemeanor.

Earlier this year, Roger's office declined to prosecute a similar car surfing incident that resulted in a death, in part because there is no gross misdemeanor or felony law for car surfing.

In Nevada, gross misdemeanors are punishable by maximum $2,000 fines and a year imprisonment -- double those of misdemeanors.

When 16-year-old Adasha Edison died on Feb. 7 after falling off the roof of a Chevrolet Blazer driven by a 16-year-old girl in the parking lot of Shadow Hills High School, police and prosecutors found that the only law that applied to prosecuting a sober driver was misdemeanor unlawful riding, Roger said.

That law was not designed for car surfing but rather to discourage people from riding in the beds of pickup trucks for reasons other than farming, ranching or riding on a parade float. A conviction carries a fine of just $35 to $100.

Weigand, who supervised the crew that investigated the Edison incident and sent the case to the district attorney for consideration, says he is not so sure a tougher car surfing law will help.

"You can't fix dumb, and there is no cure for stupidity," he said. "We do presentations on safe driving but it is up to people who drive to prevent accidents. You still have to drive safely and properly."

Titus said the Legislature may not address a tougher car surfing law for that reason.

The Legislature would have to listen to all of the arguments, including how widespread a problem this is and what the public pays for people who get injured, she said.

And, she noted, it raises a familiar question.

"I have a little libertarian in me that questions whether the government should step in to try to stop someone from acting like an idiot when he is doing harm only to himself," she said.

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