According to a story published in the Sheboygan Press, Roger V. Petersen, 69, will accept a plea deal for allegedly driving his car into the tail end of a Sheboygan group bicycle ride, killing Troy Tousey and hitting two other people on the ride on June 16, 2012. Peterson told police he might have momentarily fallen asleep before he ran into the cycling group, despite the fact that it was on a straight road, in daylight. Peterson’s defense attorney Kirk Obear argued Peterson suffers from sleep apnea.
Under the proposed plea agreement, District Attorney Joe DeCecco will recommend that Petersen serve 30 days in jail and performs 100 hours of community service focused on raising awareness of the hazards of driving with a medical condition, if Peterson pleads guilty to two misdemeanor counts of negligent driving for his role in the crash that left Tousey dead. Together, the two misdemeanor charges could put Peterson behind bars for seven years, but If the plea agreement goes through, DeCecco will drop the felony charge of homicide by negligent operation of a vehicle.
DeCecco told me while Petersen knew he had sleep issues, it was not until after the crash that a doctor diagnosed him with sleep apnea. As a result of that diagnosis, Petersen has voluntarily surrendered his drivers license and agreed never to drive a car again. This was not part of the plea agreement.
The plea deal was presented this morning before Judge Angela Sutkiewicz in Sheboygan County Court. While the plea was discussed, Judge Sutkiewicz held over the formal plea entry until November 21 so Tousey’s family and friends would be able to attend the hearing. The original sentencing hearing on the homicide charge remains set for Dec. 13. At this time Petersen remains free on a $10,000 signature bond. According to a criminal complaint, Petersen told investigators that he may have fallen asleep.
To put this plea deal in perspective, when we reported back in November that District Attorney DeCecco would seek felony charges of homicide by negligent use of a motor vehicle, he was breaking ranks with many of his fellow DAs in other Wisconsin Counties. While each case is unique, in two similar cases where the driver of the car fell asleep and killed a person riding a bicycle , neither driver was charged with more than moving violations carrying fines from $126 to $614. The felony charge originally sought by DeCecco in Tousey’s case could have put Petersen in prison for 10 years. No matter what happens going forward, in our opinion, DeCecco deserves credit for taking the most aggressive stance against inattentive driving of any Wisconsin DA to date.
For instance in July of 2011, an 18-year-old driver claimed to have “blacked out” when he crossed the centerline of the road in Oak Creek and hit Sam Ferrito, 56, head on while he was riding his bicycle. After that case, 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 for a more serious crime.
“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.”
Waukesha County District Attorney Brad Schimel gave a similar response in the 2012 case when Roger Gunderson was killed by 20-year-old Andrew S. Yang, 20, when he fell asleep and drifted across the centerline on Woods Rd. in Waukesha County. Schimel told me he did not have the evidence to prove to a jury that the driver’s actions met the test of criminal negligence. Schimel explained his reasoning: “In order to sustain a criminal charge for causing the death with the motor vehicle, I would need to demonstrate that Mr. Yang engaged in some criminally negligent or reckless conduct. This requires more than just ordinary negligence, but rather an awareness that his conduct was practically certain to result in great bodily harm or death to another. Under the circumstances here, given that Mr. Yang had adequate sleep the night before, did not engage in unreasonably exhausting activities during the day and had not been awake for an unreasonable period of time prior to driving, it would not be possible to obtain a conviction for criminally negligent or reckless conduct. Thus, it is not possible to proceed with criminal charges.”
So while DeCecco did seek criminal charges in the Tousey case, when I spoke with him after the hearing today, he told me he does think there is a gap in our current laws. “In cases where inattentive driving results in a crash with these serious results, I wish there was something in between the negligent felony homicide and a non-criminal traffic citation. I think we need that gap filled.”
I have asked Schimel to review our proposed Vulnerable User legislation and he echoed DeCecco’s thoughts about the need to fill the gap in the law. Schimel seemed to agree with the majority of the draft legislation, but he told me he had a few specific concerns and would get back to me with some suggested changes to the language of the bill. DeCecco has also agreed to look over our legislation and said in principle he is supportive of our efforts to fill this gap in the law.
We will continue to follow the Tousey case until the sentencing hearing or trail of Roger V. Petersen. We will also continue to work on getting out Vulnerable User legislation passed this session.
Read more about our proposed Vulnerable User Law here.