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#1 2012-04-28 22:44:01

MichaelBluejay
Webmaster
From: Austin, TX
Registered: 2008-05-26
Posts: 1,255
Website

At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

Here's a story we've heard before:  An at-fault driver kills a cyclist, and no charges are filed.

In this case, it was an 85-year-old driver [Maurice Widener] who drove onto the shoulder, killing a 55-year-old cyclist [Verter Ginestra] on 360.

http://www.kvue.com/news/Cyclist-hit-ki … 93025.html

http://www.statesman.com/blogs/content/ … ision.html

Which is the bigger problem, that at-fault drivers continue to get off scot-free, or that people unable to operate a motor vehicle safely are allowed to have drivers licenses in the first place?


Let's talk about that second issue.  In most states elderly drivers aren't retested to make sure they're still able to drive safely.  As of 2007, only two states require drivers to retest in order to renew their license.  Until states stop giving out drivers licenses like candy, we're going to continue having people on the road who shouldn't be there.

http://www.usatoday.com/news/nation/200 … at1a_N.htm

http://newoldage.blogs.nytimes.com/2011 … il-a-test/

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#2 2012-04-29 10:06:17

bizikletari
Member
Registered: 2009-03-18
Posts: 223

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

I see no relation to the victim wearing a helmet with the outcome of the event as reported.
One wonders whether reporters Ashley Goudeau, Kate Alexander and Ciara O'Rourke were wearing their helmets while writing their pieces; either way, bringing up the point proves to be as ineffective to the soundness of the article as wearing his helmet was to the unfortunate victim.
I hope that, at some not so distant day, the Statesman will stop with the practice of mentioning it when reporting bicycle accidents. What the newspaper is actually doing, is helping us to keep statistics on how irrelevant the helmet use is for the cyclists safety.
When a life is, without a doubt, clearly spared or taken DUE to the presence or absence of a helmet, please mention it. That may make sense.

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#3 2012-04-29 13:38:26

Donald Lewis
Member
Registered: 2009-07-11
Posts: 182

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

There's an aspect here that doesn't get discussed nearly enough.

The driver's roadworthiness was likely compromised not only by being 85 years old but by something else.

Unless the driver smelled of alcohol it is 100/1 there was no blood draw done.

Its not 100/1, but it is very likely that had there been a blood draw it would have revealed the gross over-medication that is an almost universal practice with our senior citizens.  A little bit of zanax, some vicodin for back pain, librium, blood pressure meds, statins, and etc.  Many of these will have warnings on the prescription vial regards driving or operating machinery -- warnings that are usually ignored.  I have heard the average person at this age has 7 different prescriptions.  Put them all together and they WILL influence attention and reaction time.  In other words most senior citizens are "driving under the influence."

For all practical purposes this type of DUI is given a free pass by our law enforcement and legal systems to the enormous detriment of public safety.

Don

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#4 2012-04-29 13:54:00

Donald Lewis
Member
Registered: 2009-07-11
Posts: 182

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

I read a more recent news story and was pleased to see reference to a "blood alcohol test."  I am not too hopeful that they will screen for prescription drugs that could be relevant, but, even if they do, our system has no standards for levels of these and the prevailing attitude is mind-numbing/altering drugs are only bad if purchased on a street corner..

Don

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#5 2012-04-30 09:57:27

Augenwinkel
Member
Registered: 2010-02-05
Posts: 16

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

Wholeheartedly agreed, bizikletari.

And there should be consequences. Al Bastidas is right: drivers should face consequences if they hit a cyclist, and especially if they kill a cyclist. Not to say that this driver even had ill intentions. But as you say, MB, their license should be suspended. Drivers should be held accountable for their actions.

At any rate, it's very sad.

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#6 2012-04-30 11:44:28

Adriel
Member
Registered: 2008-05-27
Posts: 91

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

The only way the roads will ever get safer is if people think about driving correctly.  Driving a car is a dangerous act, more dangerous than shooting a gun.  People who cannot shoot guns responsibly are not allowed to shoot them anymore, people who drive cars irresponsibly should not be allowed to drive them anymore.  The implementation of this is up for debate, but the underlying principle must be applied, or people will continue to use these weapons to kill people.  I am a firm believer that 80% of collisions (Not accidents, because most collisions are actually preventable) are caused by 20% of the drivers.  Get those 20% off the road and you will reduce the death toll both for pedestrians and cyclists, but also motorists by 80 people per day at least.  And maybe with 20% of the drivers unable to drive, society will finally take public transportation seriously and create ways for these people to get around safely and quickly.

Last edited by Adriel (2012-04-30 11:44:40)

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#7 2012-04-30 13:55:23

megan
Member
Registered: 2008-09-04
Posts: 7

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

timely article.

The Invention of Jaywalking

http://www.theatlanticcities.com/commut … king/1837/

<snip>

It wasn't always like this. Browse through New York Times accounts of pedestrians dying after being struck by automobiles prior to 1930, and you'll see that in nearly every case, the driver is charged with something like "technical manslaughter." And it wasn't just New York. Across the country, drivers were held criminally responsible when they killed or injured people with their vehicles.

So what happened? And when?

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#8 2012-05-10 08:05:11

Donald Lewis
Member
Registered: 2009-07-11
Posts: 182

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

http://www.kvue.com/news/local/Driver-w … 28575.html

Let us hope charges WILL be filed.

Don

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#9 2012-05-10 17:47:01

MichaelBluejay
Webmaster
From: Austin, TX
Registered: 2008-05-26
Posts: 1,255
Website

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

"Investigators say an 85-year-old driver veered onto the shoulder of the highway near Westbank Drive because he was trying to pass other cars. Police also say he was speeding.... So far the driver does not face any charges."

Who volunteers to call APD or the DA to ask why charges haven't been filed?

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#10 2012-05-10 20:28:17

eileenstx
Member
Registered: 2010-09-30
Posts: 13

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

I have a request in.

Eileen Schaubert

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#11 2012-05-10 21:36:41

Chuck_McNeil
Member
Registered: 2008-06-05
Posts: 33

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

Al Bastidas with Please Be Kind to Cyclists is working hard to get justice on this one, as well as all the other cyclist fatalities and injuries.
Perhaps contacting PBKC would help get your voice heard and affect more change.

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#12 2012-05-11 21:19:40

dougmc
Administrator
Registered: 2008-06-01
Posts: 565

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

megan wrote:

And it wasn't just New York. Across the country, drivers were held criminally responsible when they killed or injured people with their vehicles.

So what happened? And when?

I'm not sure, but I can guess ...

Back around the turn of the last century, cars were luxury items -- only a few people had them.  Their owners were in the minority, so it was more palatable for those who didn't have cars to punish those who did when they did wrong.

Today, most everybody is a driver.  So if a "technical manslaughter" case came before a jury, the jury would put themselves in the shoes of the defendant and consider if that could be them out there.  If the guy was drunk, high on drugs, going 120 mph in a 40 mph zone -- they can distance themselves mentally from the defendant pretty easily.  But if it's just some guy who got distracted for a bit ... the jury sees that could be themselves on the defendant's chair, and don't want to convict.  And the DA doesn't want to bring charges that he's not very likely to get a conviction for.

Now, the jury could see this another way ... "That guy screwed up, and somebody died because of it.  I should make sure I never screw up!" -- but that's not really the way people seem to think.  Instead, they think it could never happen to them, because they're better drivers than that.  (Everybody is above average, you see ...).

As for how to fix this for real, I don't see how -- not without a fundamental change in how people think.  But if we could make auto drivers the minority again, then people (mostly not drivers at that point) would stop identifying with them so much when they kill somebody and instead would identify more with the person killed.

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#13 2012-05-23 10:32:10

owlman
Member
Registered: 2011-12-16
Posts: 142

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

Looks like the ghost bike is gone this week, or else I missed it.  Was that meant to be a very temporary (< 1 mo) memorial?

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#14 2012-05-30 11:29:24

Donald Lewis
Member
Registered: 2009-07-11
Posts: 182

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

Is there any word on this?  Not the ghost bike, but charges.

Don

Last edited by Donald Lewis (2012-05-30 11:29:46)

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#15 2012-06-14 08:02:45

badgnome
Member
Registered: 2012-01-26
Posts: 50

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

eileenstx wrote:

I have a request in.

Eileen Schaubert

Did you get the APD report on this one?

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#16 2012-06-14 15:26:16

owlman
Member
Registered: 2011-12-16
Posts: 142

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

It was DPS, wasn't it?  I'm not sure if APD was involved.

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#17 2012-06-15 08:25:45

eileenstx
Member
Registered: 2010-09-30
Posts: 13

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

It is DPS not APD. I haven't gotten a call back from the investigating officer.

Robbie Barrera is the Public Information Officer, Tim Johnson is the investigating detective.

I haven't had time to follow-up. Anyone else want to take this on?

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#18 2012-06-15 14:25:36

tomwald
Moderator
From: 78722
Registered: 2008-05-27
Posts: 288

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

eileenstx wrote:

I haven't had time to follow-up. Anyone else want to take this on?

I or a Bike Austin volunteer would be happy to take it on.  I'll give you a call.

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#19 2012-07-12 20:23:21

badgnome
Member
Registered: 2012-01-26
Posts: 50

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

I got a letter last week from the State Attorney General, PIR #12-1974.

It says "we have determined your request does not present a novel or complex issue."......Something about "submitted information may be withheld from the requester pursuant to section 552.108(a)(1) of the government code." That I may withhold the submitted information, but also that I must release information related to section 552.108(c).

Anyone know what this means?

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#20 2012-07-14 12:06:14

jma6610
Member
Registered: 2011-06-12
Posts: 13

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

If you type the first phrase into Google, you will get a number of examples of form letters written by the AG's office to various law-enforcement or other local governmental agencies. If I understand correctly, you asked a local agency (or the DPS) to release to you some type of document under the state's open record laws. Someone from that agency sent your request to the AG's office for a ruling/opinion because that local office didn't want to release the document, suggesting that their refusal to release is an authorized exception to open records matters. The AG's office agreed with them, but stated that they must release some very basic information like the name of anyone arrested. I believe they are stating that your request is the type that such agencies receive all of the time from folks who might not understand what the open records laws actually are and that such requests are very routine and not novel or complex. Therefore, rather than spending a great amount of time on the details, they will simply issue a form letter stating that the agency doesn't have to comply with the records request.

Again, however, this is just my guess, I'm not an attorney, and I haven't been following the thread.

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#21 2012-07-14 12:42:23

jma6610
Member
Registered: 2011-06-12
Posts: 13

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

Let me play devil's advocate here. As much as I hate bad drivers on the road, especially when I'm riding, I'm unsure I see any real advantage to criminally charging an 85 year old man in this situation. There are other avenues to obtain "justice." If the police officer was doing his job, he should have filled out paperwork to send to the drivers license folks to start a process to get the driver's license revoked. That generally involves a medical exam by the driver's physician (at least in most states, I don't know about TX). Since these matters involve health issues, they are generally considered confidential, and therefore, this is one reason why the police are not going to want to release their reports about these types of things. The family of the cyclist can also sue.
Now think about what's going to occur in a criminal or traffic court. First, what's the actual charge ? Perhaps speeding and/or reckless driving. Perhaps there are other charges. Perhaps the actions were serious enough to potentially warrant a charge of vehicular manslaughter (or whatever TX calls it). That's still a misdemeanor offense, meaning the possibly of jail time is near zero (do you want to start to think about which rapist or murderer should be left out of the crowded jail system to make room for the 85 year old?) ...and guess who pays his medical bills if he is locked up ? If the violations were only traffic violations and not something more serious, you're speaking about fines that might total $1,000 or less even if multiple citations were issued. ...and in terms of deterring other drivers (especially other elderly drivers?) do you really think that more than a handful of folks would ever know what would happen to the man if he was criminally charged? At best it would be a back story in the paper that few would ever see. ...and if no one knows the outcome, how could anyone be deterred from similar action?
Would seeing the man face punishment through the criminal justice system make the victim's family feel better? Would it make us feel better? Perhaps. Would it really make us safer on the road? Frankly, I doubt it.  What is going to do the most good on a practical level is the police starting action to get the license revoked and the victims family suing for compensatory and punitive damages.

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#22 2012-07-14 23:09:42

savanni
Member
From: Austin
Registered: 2011-04-30
Posts: 82
Website

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

How else would he lose his license except by way of being convicted of manslaughter while driving recklessly?  It WOULD make us feel better if he actually faced any punishment.

As it stands, APD is sending a clear message through their inaction that it is acceptable to use a car to murder a cyclist.

"You were speeding and driving on the shoulder.  Normally, we'd ticket you, but you killed a cyclist.  Good job!"

Yes, I said murder.  I used the strongest term.  That is what *I* call every hit-and-run death.  That is what I call killing someone while simultaneously breaking other laws.

Revoking this man's license would actually make us feel better.  *Frequently* revoking the licenses of reckless drivers would go a long way to changing Austin culture into some place where we believe there is actual justice.  Until then, it will just remain a haven for everyone who turns into a zombie the moment they touch a gas pedal.

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#23 2012-07-15 07:24:49

jma6610
Member
Registered: 2011-06-12
Posts: 13

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

Re-read my prior post about losing the license. In most states, and I'm sure TX is one, there are a few ways in which an elderly driver can lose his or her license. One way is for the police to send paperwork to the licensing people that they suspect there is a medical/health issue after the police have had contact with the driver in some way. Then, depending on the state law, the driver has to either get medical clearance, get a new driver's exam, or otherwise prove he or she is still capable of driving. This just occurred with my 82 year old step father. Another way is for family members to request this, often through the person's physician. ...but health issues are considered more confidential than many other matters and the police are certainly going to resist efforts to release copies of reports that specify that they have filed such paperwork. Picture the publicity the police would have if their paperwork stated that they spoke with the driver's family members who mentioned prior bad driving on the part of the driver. If such paperwork was routinely released to the public, how many family members would want to openly speak to the police about such matters?

The courts can only suspend the license for a short period of time based upon the specific law pertaining to the offense. The medical community can start the process to revoke it completely.

...and unfortunately, it really doesn't matter what you call it. The law calls every death at the hands of another (even justifiable ones) homicide. Murder is generally used when the homicide is done illegally in some way, and generally only when done intentionally. Negligent or vehicular homicide is used when the homicide is accidential but done while committing another offense. I really think that we need different penalties depending on the intent of the actor. This is a major foundation of the US legal system.

There are many things I can fault the police for. Perhaps they didn't do their jobs here and failed to file any paperwork to start the process of license revocation. But right now, I see no evidence that this is the case.

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#24 2012-07-15 11:21:29

MichaelBluejay
Webmaster
From: Austin, TX
Registered: 2008-05-26
Posts: 1,255
Website

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

I've said repeatedly that I believe any person at-fault for killing another road user should lose their license permanently.  That ought to happen on the criminal side, not the administrative side, if for no other reason that the process is visible and everyone can know about it (both so the public can know that at least some justice was served, and so they realize that such a result could happen to them.  I wouldn't be surprised if most Americans fear lifetime revocation of their license more than they fear going to jail for a few months to a couple of years.)

But in this case, there should also be a traffic citation at a bare minimum.  In another thread you can read about cops treating cyclists who don't stop completely at Stop signs like they're the scourge of society and are far from the lofty level of drivers.  If cyclists deserve that kind of scrutiny when they break a law that was unlikely to hurt anyone but themselves, then a driver deserves some scrutiny when he breaks a law and actually kills someone.

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#25 2012-07-16 23:05:01

dougmc
Administrator
Registered: 2008-06-01
Posts: 565

Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

jma6610 wrote:

Let me play devil's advocate here. As much as I hate bad drivers on the road, especially when I'm riding, I'm unsure I see any real advantage to criminally charging an 85 year old man in this situation.

OK.  Then let's at least give him a moving violation of some sort.

Yes, the penalty is a pittance compared to somebody's life.  But at least it shows some sort of legal disapproval of what happened.

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