Misdemeanor manslaughter law sought

Friday, June 4, 2004 | 7:20 a.m.

WEEKEND EDITION

June 5 - 6, 2004

Hundreds of pedestrians lost their lives on Nevada roads before she did, but 9-year-old Alexis Kiles' death could wind up being the one that propels a new state law aimed at holding drivers more accountable when they kill pedestrians.

Alexis and her brother were walking home from a community swimming pool in Washoe County one afternoon last July when 48-year-old Debra Grant of Sparks drove off a busy throughfare, crossed a ditch and struck the children as they were walking along an adjacent dirt frontage road.

Grant pleaded no contest to charges of failure to use due care and operating a vehicle without proof of insurance, both misdemeanors. She was given a combined one-year suspended jail sentence, 100 hours of community service and ordered to pay $23,936 in restitution.

She wasn't charged with killing the child, however, and that outraged the Sun Valley community near Reno where Alexis lived.

Northern Nevada residents learned a cold, hard fact that has become all too familiar to Southern Nevadans who have followed news reports about traffic fatalities: Under state law it is possible for a legally sober driver, who is at fault for accidentally killing a pedestrian, bicyclist or someone else, to get a mere traffic citation without the fatality showing up on her driving record.

That fact spurred Sun Valley residents to organize petition drives. They also formed a citizens task force and met with the Washoe County district attorney, sheriff, commissioners and other community leaders.

"Our biggest concern was that this woman who hit and killed the little girl basically walked away," said Susan Severt, chairwoman of the Sun Valley Boulevard Safety Task Force. "No one will ever know from her record that she killed another human being."

The result is a grass-roots movement to encourage the Nevada Legislature next year to pass a misdemeanor manslaughter law.

The idea is to place blame on careless drivers who are deemed at fault for killing others through simple negligence by having the fatality on their record, even if the level of carelessness does not rise to the higher burden of criminal negligence needed to prove felony manslaughter.

If the death is determined to be the fault of the pedestrian or if no fault is assigned, there would be no misdemeanor manslaughter charge against the driver.

A misdemeanor manslaughter law is not a novel idea for Nevada. The Legislature rejected similar bills in 1995, 1997 and 1999, partly based on police agencies' fears that prosecutors would use the misdemeanor law to dispose of cases that warranted more severe penalties.

But with Alexis being just one in a string of children who have been killed by motorists in Nevada in recent years, the Sun Valley community can count on support from advocates of pedestrian and cyclist safety and from the Nevada District Attorney's Association.

One such ally is Erin Breen, director of Safe Community Partnership, an arm of the Transportation Research Center at the University of Nevada, Las Vegas.

"Trying to come up with a big stick to educate motorists is something I am passionate about," Breen said. "The laws are usually stacked against the pedestrian. There is nothing illegal about crossing a street outside of a crosswalk as long as the pedestrian is not impeding traffic. But it seems you never have a case where there is a midblock crossing, the pedestrian is hit by a driver who is speeding and it is the driver's error."

Breen argues in that case, if the driver had not been speeding, the pedestrian could have made it across the street without impeding traffic. But valley police and prosecutors don't see it that way.

Meanwhile, in Northern Nevada, Washoe County District Attorney Richard Gammick, spurred by the fed-up Sun Valley residents, is crafting the misdemeanor manslaughter legislation, and Assemblywoman Shelia Leslie, D-Reno, has vowed to be the lead sponsor. That Leslie is promising to carry the bill is telling since she was one of the 24 assemblymen who voted against similar legislation in 1999.

"In 1999 there was concern about over-penalizing somebody for an accident," Leslie said. "But since then we've had some severe accidents, and it does seem unfair to me that in certain cases the driver only gets a traffic ticket.

"We do have a problem in this state with people not paying attention to their driving," she added. "When there is a severe consequence, like a fatality, that should be on your driving record."

Existing laws

Like other states, Nevada already has a wide range of penalties for drivers who are deemed at fault for causing another person's death. Since each state has its own traffic laws there are 50 sets of penalties and legal definitions, with no two states exactly alike.

"Prosecutors have to determine whether something is a crime or an accident and what is considered criminal negligence differs from state to state," John Bobo, former director of the National Traffic Law Center in Alexandria, Va., said. "The only thing that makes something a crime is if your legislature says so."

It is possible for a motorist in Nevada who unlawfully kills someone else to face felony charges in various situations:

First-degree murder, which is premeditated, such as a motorist "lying in wait" to kill someone. Punishment ranges from a minimum sentence of 20 years in prison without parole to the death penalty.

Second-degree murder, which covers all other murders not specified by the first-degree murder law, carries a possible sentence of 10 years to life. A motorist could be charged with this offense if he uses his car to scare someone and then kills that person, even if the fatality was unintentional.

Driving under the influence of alcohol or an illicit drug, in which the punishment for a fatality or serious injury is two to 20 years in prison.

Hit and run that involves death or injury, which carries a sentence of two to 15 years.

Voluntary manslaughter, whereby the killer is provoked by injury or threatened injury but where the killing is not deliberate, which carries a sentence of one to 10 years. An example is a motorist who gets punched in the face at a bar, and in a heat of passion uses his car to kill the other person as he steps outside.

Reckless driving, whereby a fatality or substantial injury is caused by "willful or wanton" disregard of the safety of others or in the event of an illegal speed contest, which is punishable by one to six years in prison.

Involuntary manslaughter, an unintentional killing in the commission of an illegal act or in the commission of a lawful act without due caution, which carries a sentence of one to four years. In the case of a motorist, this could involve running multiple stop signs and other forms of erratic driving before accidentally killing someone else. When the killer is a motorist the felony penalties apply whether the victim is a pedestrian, bicyclist, other driver or vehicle passenger.

Nevada has been tougher than the national average when it comes to citing drivers who have killed nonmotorists, according to statistics compiled by the Fatality Analysis Reporting System, part of the National Highway Traffic Safety Administration.

From 1997 through 2002, 92 of the 378 drivers -- or 24.3 percent -- who were involved in collisions that killed nonmotorists in Nevada received at least one citation. That compares with 19.5 percent nationally. And 27 of the Nevada drivers who were cited, or 29.3 percent, were charged with homicide or manslaughter. Nationally, only 22.2 percent of the motorists who were cited in connection with the traffic death of a nonmotorist were charged with homicide or manslaughter.

Another way to look at those numbers is that more than three in four drivers in Nevada who are involved in collisions that kill nonmotorists don't receive any citations.

The rub, according to prosecutors and judges, is in the way Nevada law has been interpreted in courts. They say that a driver who kills someone would have to commit two or more infractions, such as running multiple red lights, or an egregious violation, such as going 80 miles an hour in a school zone, to rise to felony status.

"It's a higher degree than the culpability of a basic traffic offense," William Dressel, president of the National Judicial College in Reno, said. "In most states a felony has to rise to reckless or beyond. It's not just speeding 45 in a 20 mile-an-hour zone. It has got to be more than careless driving. You're talking about a willful type of action."

One difficulty of traffic law -- and a problem not confined to Nevada -- is the differentiation between an accident and a crime.

"In a lot of pedestrian accidents there is not a witness to the accident itself," criminal law professor Charles Temple of Franklin Pierce Law Center in Concord, N.H., said. "Is it an accident or is it something that takes it out of the accident field? Was the driver simply inattentive or did he commit criminal behavior?"

If a drunken pedestrian crosses a road and is struck by a speeding motorist, Breen said the benefit of doubt usually goes to the driver.

"And that's not fair," she said.

An example of a gray area in traffic law has to do with a driver who must wear prescription glasses as a condition of his driver's license. That was the case with the driver who was supposed to be wearing glasses but wasn't when his vehicle struck and killed 15-year-old Ashlee Bicknell in Las Vegas in November.

Whether a driver should be deemed a criminal if he kills someone while not wearing his glasses is not clear cut, according to Dressel, a retired Colorado judge.

If the driver knows he cannot drive properly without his glasses, that may rise to criminal "wanton and willful" conduct but it is possible that threshold would not be met if a person simply forgets to wear his glasses, he said. Ben Graham, a chief deputy Clark County district attorney, agreed.

"The fact you didn't have your glasses on, was that the cause of the accident?" Graham said. "It might not have been the cause."

If all a driver does in Nevada is run a single red light or stop sign, go somewhat over the speed limit, or lose his attention before killing someone, he'll get a simple misdemeanor traffic citation. And that means a penalty of no more than six months in jail and a $1,000 fine with no mention of the killing on his record.

But Clark County District Attorney David Roger said that drivers charged with misdemeanor traffic infractions in the unincorporated portions of the county aren't doing jail time. That's largely because of lack of jail space, he said.

"In the county we're bouncing (not seeking jail time for) all misdemeanors except for people charged with DUIs or domestic violence," Roger said.

It is possible for drivers convicted of traffic misdemeanors to get jail time in Las Vegas, Deputy City Attorney Ed Poleski said. But he said he did not know the percentage of those drivers who are placed behind bars.

"It depends on the driver's history and what the victims (or their relatives) want," Poleski said. "We will ask for jail time if we think it is appropriate."

The fact that it is possible for a driver in Nevada to be at fault for killing another individual without being charged for the fatality is what led District Judge Stewart Bell to propose a misdemeanor manslaughter law in the mid-1990s when he was the Clark County district attorney. One accident that prompted his support was a 1997 incident in which a sober truck driver, who was traveling below the speed limit, plowed into six cars on Interstate 15 near Spring Mountain Road, killing two people and injuring four.

In that case, the truck driver, Stephan Whipple, 51, of Hopkins, Mich., was charged only with two misdemeanor counts of driving without due care.

The victims, Ruth Barachman, 80, and Pamela Santalucia, 41, both of Escondido, Calif ., had attended a wedding in Las Vegas the previous day. Barachman was the grandmother of the bride, and Santalucia was the groom's aunt.

Bell as a judge is not permitted to advocate passage of specific laws. But he said the reasoning behind a misdemeanor manslaughter law -- which would be punishable by up to six months in jail and a $1,000 fine, the same as other traffic misdemeanors -- is to find "a middle ground" that would appease relatives of the victim by attaching value to the life that was lost.

"If all you can do is charge the driver for running a stop sign, the parents of the victim look at you like you're nuts," Bell said. "They ask, 'Is that what the life of my child is worth?' "

As of 2001, there were 18 other states that also had a misdemeanor penalty for certain fatalities caused by drivers, according to a survey by the National Traffic Law Center, a part of the American Prosecutors Research Institute. Alabama calls its law "criminally negligent homicide." California simply uses "manslaughter." Georgia has "homicide by vehicle" and North Carolina uses "misdemeanor death by vehicle."

In 14 of the 18 states, the maximum misdemeanor sentence is at least a year. On the other extreme are five states -- Alaska, Arizona, Montana, North Dakota and Oregon -- that don't have any vehicle-specific homicide felonies or misdemeanors.

Nevada has gross misdemeanor penalties for other crimes that carry maximum one-year sentences. But Gammick said he didn't think the Legislature would support a misdemeanor manslaughter law that carried more than a six-month sentence.

"We are making a concerted effort to get survivor families involved in this," Gammick said. "We feel this will give families some satisfaction. Something has to happen to get the driver's attention."

Roger said he wants to reserve judgment until he sees the proposed legislation. But he said he supports the concept behind misdemeanor manslaughter and believes it is an issue the Legislature ought to consider.

Otherwise, he said, prosecutors have to be able to prove two or more traffic violations -- or an unusually high rate of speed over the posted speed limit -- to make felony charges stick.

"We have an involuntary manslaughter law but it requires criminal negligence," Roger said. "That's the judicial interpretation in Nevada. It's a difficult issue. You're driving down the street and not paying attention and you run over somebody. Should you be charged with a felony and sent to prison?"

The Nevada District Attorney's Association, which has lobbied for a misdemeanor manslaughter law in the past, is certain to do so again next year since Gammick's office belongs to the advocacy group. Graham, who doubles as the association's lobbyist when he isn't working for Roger, said he believes there is a good chance the legislation will pass next session "if something is crafted well."

"The word is that there is more appetite now than there has been for this statewide," Graham said.

The reason is the increasing numbers of victims of careless drivers in Nevada, he said.

"There are just more bodies," he said.

Assemblyman Mark Manendo, D-Las Vegas, one of 15 assemblymen who voted for the misdemeanor manslaughter legislation in 1999, still supports the idea.

"I don't have a problem with something like that being on a person's driving record if they took a life because they were responsible for the accident," Manendo said. "For insurance purposes it might make people more cautious about what they do behind the wheel of a car."

And Sen. Terry Care, D-Las Vegas, also spoke in favor of the concept.

"I don't think that's a bad idea at all," he said. "This is a case where people fall through the cracks. Even if there's no intent to kill somebody, there's really more at stake when a life is lost, and we don't have a law that addresses that."

The effect that the proposed law could have regarding a driver's automobile insurance could be major, experts said.

James Wadhams of Las Vegas, a lobbyist for Nevada's insurance industry, said having a misdemeanor manslaughter infraction on a driver's record could increase that driver's insurance rates when he renews or make it difficult to find coverage when attempting to switch insurers.

"If you've got a manslaughter on your driving record, that will be a red flag," Wadhams said.

Most automobile insurance claims are settled out of court. Although Wadhams said that in most cases the insurance claim is the responsibility of the person who gets the traffic ticket there are situations where the fault of a pedestrian-automobile mishap is a matter of dispute that can end up in court.

The significance of a misdemeanor manslaughter is that it would place fault squarely on the driver so that there would be no dispute over his responsibility to pay the victim's medical bills, Wadhams said.

The concept of misdemeanor manslaughter still has potential detractors. Lucille Lusk of Las Vegas, chairwoman of Nevada Concerned Citizens, a self-described conservative family values organization that has raised questions about the proposal in the past, said she still has concerns about it.

"In my day I have run a stop sign with no intent of breaking the law," Lusk said. "The question is whether there should be a manslaughter charge when there is no criminal intent."

AAA Nevada, which represents more than 300,000 motorists in the state, isn't yet prepared to take a position on the misdemeanor manslaughter proposal. But Sean Comey, its spokesman, said pedestrians also must do a better job of following traffic law.

By far the single most common factor that contributes to the death of Nevada pedestrians is crossing a roadway or intersection improperly, according to the federal fatality statistics. The next most common factors are walking in a roadway, playing or working in a roadway, and darting or running onto the road.

"A lot more pedestrian-vehicle accidents involve pedestrian error than people think," Comey said. Pedestrians often think nothing of crossing against traffic lights. I've seen more people in Las Vegas make risky street crossings than in other places."

"Recently I was slowing down to take a corner and someone was trying to cross the road from behind a parked car," Comey said. "If I hadn't seen him, he would have been dead. Now who would have been at fault?"

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