In addition to the vulnerable user law, we should encourage prosecutors to file and try these cases (especially where a fellow cyclist is gone forever), rather than just allow the prosecutor to claim they don’t think they can win if it goes to trial. One side loses every single jury trial that goes to verdict. I would expect that a surviving family member would rather a prosecutor lose a jury trial than agree to a $200 fine and claim the driver didn’t violate any criminal law.
Further, the prosecutors in Wisconsin usually don’t even file a criminal case against drivers who kill bicyclists, much less try them. If they merely filed a criminal case, it is likely there would be a plea to a criminal charge and the survivors would be able to give their thoughts to the sentencing judge. Of the 110,241 criminal cases filed in Wisconsin last year, 82,076 settled before trial with 25,398 getting dismissed before trial. According to Wisconsin Circuit Court Statistics, in 2015, there were 36,426 felony cases filed and 49,298 misdemeanors filed, along with 24,517 criminal traffic cases. There were a total of 1,429 jury trials and 137 court trials. It’s not too much to ask a prosecutor to file or try a case where someone was killed by a person. >From Peter’s link below where driver fell asleep behind the wheel, crossed the >center line and killed a fellow cyclist: “Winnebago County Asst. Dist. Atty. Anthony Prekop reviewed the case and determined he would not be able to prove Noskowiak committed criminal negligence, under current state law. That law would require Prekop to convince a jury that Noskowiak knew or should have known that her actions were likely to hurt or kill someone. She worked a night shift, felt tired and fell asleep at the wheel. “How do you convince a jury of her peers that this is criminal behavior?” Prekop said. “We are bound by what the legislature dictates.” If A.D.A. Prekop would have filed and tried this case as homicide by negligent operation of a vehicle contrary to Wis. Stat. 940.10, he would have needed to prove: 1. Defendant operated vehicle (this would be stipulated to); 2. Defendant operated vehicle in manner constituting criminal negligence which means: A. defendant’s operation of vehicle created risk of death or great bodily harm (don’t think any juror would disagree that if you are asleep while moving behind the wheel there is a risk of death) And B. risk of great bodily harm was unreasonable and substantial (don’t think any juror would disagree that the risk of great bodily harm from sleeping behind the wheel is unreasonable and substantial) AND C. the defendant should have been aware that his or her operation of a vehicle created the unreasonable and substantial risk of death or great bodily harm. (I have never fallen asleep behind the wheel, I have never hit something or someone with a vehicle, I do not know any friends or family who have fallen asleep behind the wheel. Before I fall asleep, I start to feel tired. In my entire adult life I have never fallen asleep standing up, using the bathroom, playing a game, talking to someone, riding a bike, driving a car, or doing any other volitional act. **Unless someone suffers from a medical condition where they fall asleep without any warning, the person should be aware that they are about to fall asleep, and at that point, they need to immediately stop driving.*** 3. Defendant’s criminal negligence caused the death of victim. (non-issue. Driver crossed center line and struck and killed bicyclist while sleeping behind the wheel. The lack of even charging or trying these cases infuriates me. Several years ago, a Dane County A.D.A. filed a felony forgery case against a person for signing the person’s name and also signing the person’s spouse’s name to a check in the amount of $19.66 made out to both of them. According to testimony in court, the person had signed the spouse’s name many times before with permission, but during the time in question, the bank new the couple was separating, so they refused to cash the check. This case went to jury trial (a case involving a $19.66 check that was never even cashed!). There was no victim! We won, the A.D.A. lost/jury found the person not guilty. If a case like this can go to felony jury trial, A.D.A.’s should at a minimum file criminal charges when someone falls asleep while moving, crosses the centerline, and takes someone off of this earth for ever and ever. Peace, Clay From: Bikies [mailto:[email protected]] On Behalf Of Peter Gray via Bikies Sent: Thursday, September 15, 2016 9:43 AM To: [email protected] Cc: Bikies ListServe <[email protected]> Subject: Re: [Bikies] crash @ Mdvale/Mineral Pt "What's the penalty for carelessly not-quite-killing someone?" Often nothing. (also true if you remove the "not-quite" from your question) Here's a recent Wisconsin Bike Fed blog post about this issue: Fines Total $248 for Falling Asleep, Killing Father of Three <http://www.wisconsinbikefed.org/2016/03/30/fines-total-248-for-falling-asleep-killing-father-of-three/> http://www.wisconsinbikefed.org/2016/03/30/fines-total-248-for-falling-asleep-killing-father-of-three/ The Bike Fed has been working for years to change this. (just google wisconsin bike fed vulnerable user) If you want this to change, please join <http://www.wisconsinbikefed.org/join/individual-members/> and support <http://www.wisconsinbikefed.org/join/supportdonate/> the Bike Fed. http://www.wisconsinbikefed.org/join/individual-members/ http://www.wisconsinbikefed.org/join/supportdonate/ Peter On Thu, Sep 15, 2016 at 7:51 AM, via Bikies <[email protected] <mailto:[email protected]> > wrote: I saw this yesterday on my way to work: http://www.channel3000.com/news/Bicyclist-hit-at-intersection-when-driver-runs-red-light-officials-say/41667212 The article says they were "non-life threatening" injuries. It also says: The driver of the truck, a 36-year-old man, was cited for a red signal violation. So, what's the penalty for carelessly not-quite-killing someone? -- -- darin burleigh _______________________________________________ Bikies mailing list [email protected] <mailto:[email protected]> http://lists.danenet.org/listinfo.cgi/bikies-danenet.org
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