On Tuesday, the Bicycle Federation of Wisconsin will lead more than 100 advocates in a lobbying effort to convince state Legislators to support a vulnerable user law and additional funding for bicycle and pedestrian pathways.
The fight to increase penalties for motorists who commit driving offenses that kill or injure cyclists, pedestrians and others has been going on for several years. In recent weeks, State Rep. Garey Bies (R-Sister Bay) and Sen. Luther Olsen (R-Ripon) circulated the bill seeking co-sponsors in the current legislative session. I wrote about their legislation in this story posted Friday at OnMilwaukee.com
In researching that story, I found six cases over the past three years that highlight the minimal penalties imposed on motorists who kill on Wisconsin roads. Here’s the list the Bike Fed will have in hand to make it’s case.
1. Robert Gunderson, 53 – Killed on July 7, 2012, on Woods Rd. in Muskego.
The driver, Andrew S. Yang, 22, told police he fell asleep while driving westbound to work. He then crossed the centerline and hit Gunderson head-on. Gunderson was traveling eastbound, near the shoulder. In October of last year, Waukesha County Dist. Atty. Brad Schimel wrote a letter to Roger Gunderson’s widow, Antoinette, explaining why he had declined to issue criminal charges against the driver. Schimel expressed his condolences, but said he could not prove the driver, Andrew S. Yang, had driven in a criminally negligent or reckless manner. As a result, Muskego Police cited Yang, 22, for failure to keep his vehicle under control.
He paid a $126 fine.
2. Sam Ferrito, 56 -Killed on July 17, 2011, on S. Nicholson Ave., in Oak Creek.
Ferrito was out for an early evening ride when Joshua Chomicki, then 18, drove his 2000 Pontiac Sunfire into him, from behind, after crossing the center line and the northbound traffic lane. Both Chomicki and Ferrito were traveling southbound in the 11100 block of S. Nicholson Ave.
In the Ferrito case, Oak Creek police ticketed Chomicki for driving left of the center line and speeding. The citations carry fines of $206.80.
3. Reinhold Herzog, 73 – Killed Aug. 24, 2010, on Blake Rd., in Wrightstown, in Brown County. A local vegetable farmer, Herzog was stopped at a stop sign, close to the right side of the southbound lane. The motorist, Todd Gilson, 28, made a left turn and cut the corner so short he crashed into Herzog. He not only turned into Herzog’s traffic lane, he hit him on the far right side of the road. Cited for an improper left turn, his fine was $175.30.
4. Kris Hanson, 56 – Killed Aug. 1, 2011, on County Highway EE, in Oneida, Outagamie County. Michael Gustman, a car dealer from Seymour, was issued a traffic citation for inattentive driving after he crashed into Hanson and her husband, Douglas, riding a tandem bicycle on County Highway EE. Kris Hanson died and Douglas was severely injured. Gustman told police he did not see the couple riding on the road.
His ticket carries a fine of $187.90.
5. Brett Netke, 43 – Killed June 20, 2010, on Highway 18, near Dousman, while on a training ride. The driver, Sam Weirick, 20, hit Netke from behind, after drifting right over the marked fog line. Netke was riding near the paved shoulder. Weirick was cited for improper passing and paid a $114 fine.
6. Jeff Littmann – The owner of Attitude Sports and a leader in the cycling community, was killed on Oct. 1, 2010, on a training ride with Lauren Jensen, coach and professional triathlete. The driver, Kyle Dieringer, 25, hit them from behind, unable to see them because of the sun. Dieringer, of Nashotah, was ticketed for driving too fast for condition and illegal passing. His fines totaled $614.
In an earlier blog post, Dave Schlabowske, communications director for the Bicycle Federation, explained how the current law hinders prosecutors in these cases.
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.
Schimel’s letter to Antoinette Gunderson further explains the dilemma under current law: “It was certainly wrong for Mr. Yang to operate a vehicle while he was tired and beginning to nod off. He indicated that he had intended to pull over at a park ahead. He or should have pulled over sooner. There is no question in my mind that his decisions warrant the issuance of one or more traffic citations.
“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 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.”