Thursday, November 19, 2020

Illinois's Vulnerable Road User Law Is Broken - Let's Fix It

Courtesy Ride Illinois

Illinois's vulnerable road user law is in need of repair.

The purpose of the statute is to provide extra legal protection to people who legally use roadways without the protection of a rolling cage made of metal and glass.  Vulnerable road users generally include people on bicycles, motorcycles, animal-drawn vehicles and farm tractors, to name a few.  "VRU laws operate on the principal of general deterrence - by providing an increased penalty for certain road behaviors that lead to the serious injury or death of certain road users people will be deterred from doing those behaviors around those users," according to The League of American Bicyclists.  

Our state's VRU law went into effect in 2011, and provided that:

A person driving a motor vehicle shall not, in a reckless manner, drive the motor vehicle unnecessarily close to, toward, or near a bicyclist, pedestrian, or a person riding a horse or driving an animal drawn vehicle.

625 ILCS 5/11-703(e).

A driver who violates this law is guilty of a felony should they cause serious injury or death, and a misdemeanor if no great harm is caused. 625 ILCS 5/11-703(f).

Section 11-703 of the Illinois Vehicle Code already contained an important safety rule requiring that:

The operator of a motor vehicle overtaking a bicycle or individual proceeding in the same direction on a highway shall leave a safe distance, but not less than 3 feet, when passing the bicycle or individual and shall maintain that distance until safely past the overtaken bicycle or individual.

625 ILCS 5/11-703(d).

A significant problem with this statute has been revealed by recent decisions not to prosecute drivers whose conduct seemingly violated Illinois's VRU statute by the state's attorney in Champaign County.  Those decisions and the context in which they were made were described by long time bicycle advocate and former Urbana city clerk, Charlie Smyth, in a recent post.  He described a number of serious injuries and deaths to bicyclists and pedestrians in Champaign County over the past 18 months in which criminal charges were not brought by the state's attorney despite apparently reckless behavior.  Charlie reached out to me as he was putting his piece together to discuss the circumstances surrounding the death of bicyclist, David Powell, who was struck and killed by a semi-truck driver in Mahomet, Illinois.  Drivers often strike and injure, or kill, bicyclists due to a failure to see and notice them.  Not so here.  Allegedly, the driver told police that he saw Mr. Powell on his bike when he was nearly 800 feet away.  He also allegedly saw Mr. Powell signaling his intent to make a left turn in an intersection. Rather than slowing or stopping until the cyclist could execute his turn, the driver made the conscious decision to execute a close pass of Mr. Powell in the intersection.  He ended up striking and killing the 46 year old.  The driver's conduct here seems a clear violation of, and a perfect opportunity to engage, Illinois's VRU law to obtain a prosecution.  The truck driver had allegedly failed to leave a safe distance of at least 3 feet in attempting to pass a bicyclist he in fact saw, resulting in a tragic death.  Nevertheless, the Champaign County State's Attorney, in an email to Charlie explaining her decision, stated:

The law says that a person driving a motor vehicle shall not, in a reckless manner, drive the vehicle unnecessarily close to the bicyclist. . .  The question of whether a person can be held criminally liable starts with that person’s mental state. Criminal liability requires recklessness, a very specifically defined mental state in the criminal law of a willful and wanton disregard of the safety of others, or intent, meaning acting with a conscious objective or purpose to accomplish a result or engage in conduct.

The Powell case highlights a problem with the way the statute was drafted that may have caused the state's attorney's hesitancy.  As the state's attorney stated, successful prosecution requires showing that the driver acted recklessly.  "Recklessness" has a legal definition that may not comport with common usage of that term. "Negligence" is a failure to act as an ordinarily reasonable person would under the same or similar circumstances. On the other hand, "recklessness" is a willful and wanton disregard for the safety of others. Illinois Pattern Jury Instruction 5.01 states that, "A person is reckless when he consciously disregards a substantial and unjustifiable risk . . ., and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation."  The classic law school example is firing a gun into a crowd of people without the intent to actually harm anyone. In this hypothetical, the shooter may not desire or wish to hurt anyone but should know that their conduct will likely cause great harm. Did the driver's conduct in Powell rise to the level of recklessness? The driver was apparently trying to pass not hit Mr. Powell. He did not just drive straight into him. However, 11-703 mandates what is required to pass a bicyclist safely; that is, leaving at least 3 feet of space. What is "reckless" under 11-703(e) is set forth in 11-703(d). If a driver passes a cyclist inside of 3 feet then they acted recklessly. 

In fairness to the state's attorney, the statute does not explicitly state that this was the legislature's intent when the statute was drafted. The statute's failure in this regard may have contributed to the state's attorney's reluctance. This should be fixed in the Illinois legislature.  For example, I propose the following revision either as a supplement to or replacement for subsections (e) and (f) of Section 11-703:

Every operator of a motor vehicle who causes great bodily harm or permanent disability or disfigurement or death to another resulting from a failure to leave a safe distance when passing a bicycle or individual as set forth in 11-703(d) shall be guilty of a Class 3 felony.

This proposed language would provide clarity to state's attorneys throughout Illinois when making the decision about whether to prosecute a driver under the VRU law.  No longer would individual state's attorneys need to wring their hands over evidence (or lack thereof) of a driver's state of mind.  The analysis would become much simpler:  Was there great harm or death?  If so, was it caused by a pass inside of 3 feet?  A "yes" to both questions should lead to at least an attempt at prosecution, and messaging to the general public that vulnerable road users are vigorously protected by our criminal justice system.


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