These are the facts: On July 17th, an 18-year-old man lost control of his car while driving on Nicholson Road in Oak Creek, crossed the centerline and killed 56-year-old Sam Ferrito while he was riding his bicycle. The consequences for killing this innocent man are tickets for two moving violations: reckless driving and crossing the centerline.
While nothing can bring back Sam Feritto and no punishment will fairly compensate Mr. Feritto’s family for their loss, the scales of justice seem woefully out of balance in this case. Current laws just don’t seem to protect vulnerable road users. Careless drivers who kill innocent people can get off with little more than a fine simply by saying it was an accident.
Reacting to the lack of criminal charges, Marcia Ferrito, Sam’s wife, told Tom Held of JSOnline’s Off the Couch, “We are deeply disappointed with the outcome of the investigation and the decision to not press criminal charges,” Ferrito said. “We feel the fines and citations issued are just a slap on the hand.”
“He can pay his fines, keep his license and go off on his life. I wish it was that simple for my family. Our lives are changed forever.”
I spoke with Milwaukee Assistant District Attorney Greg Huebner to try to get a better understanding of the reasoning behind his decision not to prosecute the driver in the Oak Creek case for a more serious crime such as homicide by negligent operation of a motor.
“It is a terrible tragedy, and that was my first inclination,” Huebner began, “but I just did not believe I had the evidence to prove the case beyond a reasonable doubt. And I spent a lot of time with this case. I even ran it past a number of other attorneys and they all agreed with my decision. If he had been going 20 over or something, it would have been a whole different ball game.”
Vehicular Homicide, or more properly homicide by negligent operation of a motor vehicle as defined by Wisconsin state statute, is a felony, and is predicated on proving the driver was “criminally negligent.” Criminal negligence is a much higher standard and very difficult to prove. Sadly, the most common example of simple negligence I could find was “ordinary negligence occurs when a person fails to exercise ordinary care, such as if a person is driving a car and changing the radio station at the same time.” Criminal negligence means reasonable people would believe that a the actions that caused the crime create a substantial and unreasonable risk of death or great bodily harm to another.
I asked Huebner if his decision was because he thought juries have a bias toward drivers and are predisposed to view cases like this as terrible “accidents” that couldn’t be avoided. He was quick to say that had nothing to do with his decision.
“I don’t take a jury’s predisposition or bias into account when I consider a case. I take a complete look at all the evidence to see if I think I can prove to myself that a person is guilty. In this case I would have had to prove that the driver exhibited conduct that is likely to cause death.”
In the death of Sam Ferrito, the driver was not found to have been under the influence of alcohol or any illegal substance and his cell phone records did not show he was using his phone. ADA Huebner told me the driver claims to have “blacked out” for unknown reasons and to have no recollection of the crash. Like it or not, even if the driver who killed Mr. Feritto did “black out” or fall asleep, it would be very difficult to prove beyond any doubt that a person who gets behind the wheel of a car when he or she is tired does so with the understanding that driving while sleepy is likely to result in someone’s death.
If a prosecutor can’t prove criminal negligence, existing statutory law has does not offer any alternatively serious charges any stronger than moving violations. It is the Bike Fed’s view that existing law is far too lenient on careless drivers who through their own negligence cause the death of someone not encased in a steel cage. It is the view of the Bike Fed that when you drive a motor vehicle around people walking and riding bicycles, you should exercise a higher degree of caution because failure to do so can result in great bodily harm to an innocent person.
We at the Bike Fed believe that in certain instances, a driver of a motor vehicle who causes the death of a person on a bicycle or on foot through an act of simple negligence should be charged with a felony. Driving down a street next to a school? Slow down, keep both hands on the steering wheel and wait to roll up the window or take a bite of your burger until you are out of the school zone. Driving down a street that connects to a bike path? Slow down, keep both hands on the wheel and wait until you can safely pass the bicycles with three feet to spare. If you kill someone because you failed to take due care, you should go to jail, not just get a ticket.
The Bike Fed is currently working with members of the Wisconsin Legislature to draft a Vulnerable User law that provides a level of punishment that better fits the crime than a fine and a traffic ticket. We believe that we need a law that better protects the vulnerable users of the road and puts the scales of justice a bit more in balance. Driving offers great freedom, but should come with equal levels of responsibility. In our busy drive-thru culture, piloting a motor vehicle has become something people do almost without thinking. That needs to change.
Stay tuned here for more details as we draft the language of the legislation. The vulnerable user law will be our legislative push at the 2012 Wisconsin Bike Summit, Feb. 21 in Madison. Please plan on attending and help us with this important issue.