A 20-year-old man who fell asleep at the wheel and killed a bicyclist in Muskego in July will be issued traffic citations but not charged with a criminal offense, according to a recommendation from Waukesha County Dist. Atty. Brad Schimel.
The prosecutor shared his findings earlier this week with Antoinette Gunderson, whose husband, Robert, 62, was killed while biking on Woods Rd., near Maclen Dr.
The driver in the crash, Andrew S. Yang, of Milwaukee, told police that he began to nod off as he drove to work and planned to pull over, but awoke when he hit something about 3:40 p.m. Evidence at the crash seen showed his westbound car crossed the center line, crashed head-on into Gunderson, who was riding in the eastbound lane, then collided with a utility pole.
“He took no evasive action, he did not apply the brakes, nor did he appear to accelerate or decelerate,” Schimel noted in his letter to Gunderson. “One witness described him as appearing to be slumped in the seat.”
Records showed that Yang was not distracted by his phone while driving, and preliminary tests found no evidence of drugs or alcohol in his system.
He reported that he had slept for roughly eight hours the night before the crash and had spent time at a pool in Milwaukee and Bradford Beach before leaving for work at a bar and restaurant on Woods Rd., in Muskego.
“It does not appear from the information available that Mr. Yang engaged in any conduct that could be characterized as unusual or unreasonable in the hours prior to getting in the car to drive to work,” Schimel wrote.
He explained his decision to forego criminal charges:
“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 should have pulled over sooner. There is no question in my mind that his decisions warrant the issuance of one or more traffic citations. Violations could include failure to control his vehicle, inattentive driving, or crossing the center line. Those matters would be handled by the local municipal attorney. Of course, the reason that the matter is being reviewed by my office is to determine whether criminal charges are appropriate.
“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.”
Schimel reached the same conclusion after reviewing the traffic crashes that killed Brett Netke and Jeff Littman, both in 2010. In both fatalities, the motorists failed to provide a safe passing margin and crashed into the cyclists riding properly along the right side of the road, near or outside the fog line.
The driver who killed Littman and seriously injured Lauren Jensen paid a $400 fine. The driver who crashed into Netke paid a $140 fine.
In both of those cases, Schimel also cited the burden of proof necessary to sustain a criminal charge of negligent operation of a vehicle in declining to prosecute the motorists.
Given the inevitable outcome of such cases under current law, the Bicycle Federation of Wisconsin has lobbied the legislature to pass a vulnerable user bill that would toughen the penalties in similar cases.
Writing for the Bicycle Federation of Wisconsin, Dave Schlabowske added further detail and perspective:“It is appropriate to charge people for a crime when they violate the law and kill someone (even if they are remorseful), unfortunately current laws make it impossible to charge many people who kill someone while driving. For that reason, one of the top legislative priorities for the Wisconsin Bike Fed to get a Vulnerable User Law passed. The point of this law is to emphasize that when we are driving around more vulnerable users of the road, (people walking, biking, working, on horses, on motorcycles, and law enforcement officials) we need to take extra care, slow down, and pay full attention to our driving.”