As the Patrick Ytsma tragedy demonstrates, enforcing existing traffic laws isn’t enough to keep cyclists safe. We also need to change the way we think about driving.
By Bob Mionske
By all accounts, Patrick Ytsma was the epitome of safe and courteous bicycling. He made a point to follow traffic laws, and to be an ambassador for our right to the road. And he always took care—by wearing bright and reflective clothing, and equipping his bike with lighting front and rear—to make sure that he was visible. You couldn’t miss seeing him.
And yet, that’s exactly what one driver did. On December 4, 2011, Ytsma was riding on the Fahy Bridge in Bethlehem, PA, taking the lane as the sharrow markings on the bridge directed him to do, when a driver who claims she never saw him rear-ended him. Ytsma suffered life-threatening injuries, and succumbed four days later. Following a three-week investigation, the driver, Lucille W. DeMartin, 79, was charged with “careless driving-unintentional death.”
Could DeMartin have been charged with a more serious offense? It doesn’t seem likely. Let’s take a look at the range of possible law-enforcement responses to a fatal collision. On one end would be no charges filed. There are a number of reasons why no charges might be filed in a case: The driver may not have done anything wrong, or there may be insufficient evidence to bring charges. Sometimes, law enforcement may decide “it was just an accident.” At the other end of that range of responses would be filing the most serious charges available, which would be some degree of intentional homicide. To prove a charge of murder, the prosecutor would have to show that the driver intended to kill the cyclist. While not unheard of, that is obviously going to be a rare circumstance—most traffic collisions are unintentional. But if ordinary care were exercised, almost all traffic collisions would be preventable.
In between these two extremes is where the majority of driver-at-fault traffic-fatality cases would fall. The problem is, in many states, there’s a legal donut hole occupying much of this middle ground; prosecutors are often forced to choose between a minor charge, like “failure to yield” and a more serious charge, like “vehicular homicide.” The minor charge doesn’t really reflect what happened—a traffic death—but neither does the more serious charge.
In Pennsylvania, prosecutors have a somewhat wider range of available charges, including careless-driving-unintentional death, homicide by vehicle, and homicide by vehicle-DUI. To charge someone with careless driving, the prosecutor merely needs to show that the driver acted in careless disregard for the safety of persons or property. Essentially, this means that the driver acted negligently; the driver should have acted with the ordinary care expected of Pennsylvania drivers, but did not. For example, she should have seen the cyclist in front of her, and avoided the collision, but did not.
In order to get a conviction on a more serious charge, like homicide by vehicle, the prosecutor typically must prove that the driver had been driving recklessly, or with gross negligence. For example: Suppose a motorist is driving at 100mph in a school zone, and hits a cyclist. That behavior is not just careless, it is reckless. It means that the driver’s behavior was so extreme that he knew, or should have known, another person could die as a result—and chose to engage in that extreme behavior anyway.
The third charge available is homicide by vehicle-DUI, which requires proof that the driver was operating a vehicle while under the influence of alcohol or a controlled substance, in violation of the law.
This continuum offers law enforcement a sensible range of charges, based on the driver’s behavior, to choose from when a driver causes a fatal collision. And thus, unless the motorist who took Patrick Ytsma’s life was driving recklessly, or was DUI, the appropriate charge is “careless driving-unintentional death.”
But there’s another aspect to the law that we need to consider, and that is what penalties apply when a motorist unlawfully takes a life. The woman who collided with Patrick Ytsma on the Fahy Bridge was appropriately charged, but does the penalty—a $500 fine—accurately reflect the fact that a life was cut short?
In Oregon, public outrage over the $1,115 fine levied against the driver who killed cyclist Tim O’Donnell led to Oregon’s Vulnerable User Law. Under the vulnerable user law, motorists who drive carelessly, and as a result injure or kill a cyclist or other vulnerable road user, may be fined up to $12,500, and have their license suspended for one year—at least in theory. If the motorist completes a traffic-safety course and 100 to 200 hours of community service, the enhanced fine and loss of license are suspended. Still, it’s a start towards informing motorists that a traffic fatality is not “just one of those things.”
And that, I think, should be the point of the law—to improve driver awareness. We need a shift in societal attitudes about driving, and that shift should begin from the moment someone first gets behind the wheel, rather than after a collision. But how do we accomplish that attitudinal change?
One way would be through the licensing process. Consider the effect, for example, if American drivers had to meet the more stringent licensing requirements that Dutch drivers must achieve. If we took licensing—and licensing renewal—seriously here, we’d have more opportunity to apprise drivers of the traffic laws, and we’d have more opportunities to evaluate the motorist’s competence. When driving is treated as a privilege to be earned, the result is better drivers, which lead to much safer road conditions for all of us.
Here’s another Dutch innovation that has led to safer streets: In a traffic collision between a motorist and a cyclist, it is presumed that the driver is at fault. The motorist can rebut this presumption with evidence that the cyclist was at fault, but the weak excuses that drivers in the U.S. regularly offer to explain their collisions—“I didn’t see him,” for example—would be seen as an admission of fault under the Dutch system. Because Dutch drivers know they will be held accountable, they are careful drivers.
So while we need to close the donut hole in state traffic laws, I don’t think that’s enough. We need to change attitudes about driving. That is how we can make the roads safer, and that is how we will finally put an end to the carelessness underlying the “I didn’t see him” defense.
Research and assistance by Rick Bernardi, J.D.