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#26 2012-07-17 00:12:08

badgnome
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Registered: 2012-01-26
Posts: 50

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

Don't really care that he is 85. He took the wheel he has to be held accountable as would any other driver.

A civil suit in the state of Texas? There are so many exemptions to what can be seized and that's assuming the driver has wealth to his name.

If it does not exist there should be a charge of vehicular manslaughter and it should be a felony. I might even go so far to say that plea-bargaining not be allowed.

Yes, it would make me feel better.

The story would hit the Statesman and people would read about a criminal prosecution for negligent behavior that resulted in the death of a cyclists and take pause. They would think maybe there are worse things than getting a ticket and going to defensive driving. They might start to take seriously that they are piloting a 3,000+ lb machine that is capable of doing enormous amounts of harm to others. They might drive on that same road and think about trying the same maneuver and then think twice about it, knowing that shaving a few seconds off their commute is not worth the risk it poses to others and repercussions from the legal system on them. They might actually take seriously the responsibility they have as drivers!

Last edited by badgnome (2012-07-17 12:16:15)

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#27 2012-07-17 01:20:59

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

Badgnome took the words out of my mouth!

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#28 2012-07-17 12:15:28

badgnome
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Registered: 2012-01-26
Posts: 50

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. 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.

So what if the 85 year old driver had a BAC of over 0.08? Would you charge him then?

If so are you saying that drunk driving that results in a death should be prosecuted, but simple negligent behavior behind the wheel with the same result should only result in a citation?

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#29 2012-07-17 22:31:26

jma6610
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Registered: 2011-06-12
Posts: 13

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

What I'm saying is that it would be wonderful if a criminal prosecution would result in a major story in the Statesman that people would read and take pause. ..and then realize that there are worse things than getting a ticket. It would be wonderful if they would take seriously piloting a vehicle. ...but several decades of research about such matters has told us that this generally doesn't occur. ...and the article that Dougmc posted a while back that was published in J.Personality and Social Psych explained that people who are incompetent in a variety of areas are the ones who are least likely to learn about how incompetent they are. The implication is that the folks who are most prone to drive poorly are the least likely to learn and be deterred from reading about the consequences that have occurred to others.

What I'm saying is that the thing that will result in the most safety here is the driver's license being revoked through an administrative process that is likely already initiated. Whether or not he is charged with a traffic or other violation is secondary. It would certainly be appropriate, but I don't think that it's critical and don't think that it will do all that much to deter others from engaging in similar behavior.

I'm not suggesting that the driver shouldn't be charged, only that I'm not ready to fault the police for not doing so unless I would hear all of the facts in the matter and what exactly they have done.

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#30 2012-07-17 23:49:48

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

The bottom line is, if we trivialize tragedies like the one that just occurred, then that's the kind of culture we're going to have: one where people don't take responsible driving seriously.  Social science notwithstanding, it seems like other cultures *do* have a greater respect for their responsibility behind the wheel.  If they can learn it, so can we.  But if don't make any effort to get to that point, then there's no way we will get there.  It's not going to happen on its own.

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#31 2012-07-20 16:52:51

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

badgnome wrote:

I might even go so far to say that plea-bargaining not be allowed\

Plea-bargains aren't offered for the benefits of the defendants.  They're offered for the benefit of the *prosecution*.

When you hear that somebody plea-bargains their charges down to a lesser offense, that means that the prosecution wasn't so sure that they could get a conviction for the higher offense.  If the prosecution was sure they could get a conviction, they'd wouldn't be reducing the charges at all.  (Oh, they'd still offer a plea bargain, but it wouldn't be a bargain.  Charged with manslaughter and facing 5-10 years?  They'd give you a "bargain" of manslaughter with 7 years.)

Plea-bargains do benefit the defendants in that they remove the uncertainty of a trial and much of the cost of defending one's self in the trial, but they benefit the prosecution far more -- a plea bargain is a guaranteed victory and a bunch of time and money is saved by not having a trial -- resources that can be used to prosecute more cases (cases that will probably be resolved by plea bargain ...)

Plea-bargains hurt defendants as they often accept them because they don't understand their chances, think they have to accept the plea bargain or just can't afford to put up an effective defense (and public defenders rarely have the time or resources to do anything but handle a plea bargain.)

And considering just what a high percentage of cases get resolved with a plea-bargain (I've heard it's over 90%), any law that prohibits them for certain charges would be incredibly unpopular with the prosecutors.  They are rated on their conviction percentage -- and as I said, a plea bargain is a conviction.  Remove that, and they'll just decide not to charge the weak cases at alll rather than offer the defendant a plea bargain -- they don't want to risk the chance of a loss, and would probably rather spend their resources on a charge that they don't have to take to court.

So as much as I'd like to see plea-bargains go away (they send too many innocent people to prision), I have to  say that any attempt to make an offense "more serious" by prohibiting plea bargains is likely to backfire.

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#32 2012-07-21 00:45:09

badgnome
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Registered: 2012-01-26
Posts: 50

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

dougmc wrote:
badgnome wrote:

I might even go so far to say that plea-bargaining not be allowed\

Plea-bargains aren't offered for the benefits of the defendants.  They're offered for the benefit of the *prosecution*.

When you hear that somebody plea-bargains their charges down to a lesser offense, that means that the prosecution wasn't so sure that they could get a conviction for the higher offense.  If the prosecution was sure they could get a conviction, they'd wouldn't be reducing the charges at all.  (Oh, they'd still offer a plea bargain, but it wouldn't be a bargain.  Charged with manslaughter and facing 5-10 years?  They'd give you a "bargain" of manslaughter with 7 years.)

Plea-bargains do benefit the defendants in that they remove the uncertainty of a trial and much of the cost of defending one's self in the trial, but they benefit the prosecution far more -- a plea bargain is a guaranteed victory and a bunch of time and money is saved by not having a trial -- resources that can be used to prosecute more cases (cases that will probably be resolved by plea bargain ...)

Plea-bargains hurt defendants as they often accept them because they don't understand their chances, think they have to accept the plea bargain or just can't afford to put up an effective defense (and public defenders rarely have the time or resources to do anything but handle a plea bargain.)

And considering just what a high percentage of cases get resolved with a plea-bargain (I've heard it's over 90%), any law that prohibits them for certain charges would be incredibly unpopular with the prosecutors.  They are rated on their conviction percentage -- and as I said, a plea bargain is a conviction.  Remove that, and they'll just decide not to charge the weak cases at alll rather than offer the defendant a plea bargain -- they don't want to risk the chance of a loss, and would probably rather spend their resources on a charge that they don't have to take to court.

So as much as I'd like to see plea-bargains go away (they send too many innocent people to prision), I have to  say that any attempt to make an offense "more serious" by prohibiting plea bargains is likely to backfire.

Points taken. I guess what I have issue with sometimes is the degree to which a charge can be downgraded. What could manslaughter be taken down to for instance?

Anyway I like Michael's comments and also a quote I saw - in all things - a car magazine (Automobile) today:

"If a lifetime of driving has taught me anything, it's that good driving is no more an accident that are most accidents" - Jamie Kitman

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#33 2012-07-21 17:21:59

jma6610
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Registered: 2011-06-12
Posts: 13

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

dougmc wrote:
badgnome wrote:

I might even go so far to say that plea-bargaining not be allowed\

Plea-bargains aren't offered for the benefits of the defendants.  They're offered for the benefit of the *prosecution*.

So as much as I'd like to see plea-bargains go away (they send too many innocent people to prision), I have to  say that any attempt to make an offense "more serious" by prohibiting plea bargains is likely to backfire.

Yup, well stated. ...and by the way, how certain is anyone that the driver was not eventually charged? I've heard on several occasions about cases where similar has occured where the cycling community gets outraged when they read in the paper that there were no charged filed at the time the story was written, when the charges occured a few days afterward. What people who don't work in the legal system don't often realize is that the police have essentially one chance to gather information and collect evidence and that most of this has to be done before charges are filed. If they rush into things, they will miss things, make mistakes, or otherwise mess up an otherwise good case.  The papers are unlikely to follow up about an incident that is several days old and then print an update if charges are filed later.

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#34 2012-07-21 21:22:54

MichaelBluejay
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From: Austin, TX
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Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

jma6610, I don't know about this case, but when I used to track cases like this, it wasn't the case that there was just a slight delay before the police pressed charges:  literally *months* could go by with no charges being filed, and in at least one case, a driver who ran a red light near campus and killed a cyclist ultimately paid no fine, faced no jail time, and didn't even get a citation for running the red light in the first place.  In another case in which a drunk driver killed a cyclist, the police sat on the cases for months and months.  I kept calling them to ask if they'd sent the case to the grand jury yet, but they would just reply that the case was "still under investigation".  Six months later, KEYE-42 interviewed me about the case, and I pointed out that in a similar case the previous year where a drunk driver killed a cop, the driver was charged *immediately* without any six-month "investigation".  Well, after that story aired on TV, the police suddenly "completed their investigation" and handed the case over to the grand jury.

(And by the way, the grand jury "no-billed" the driver, meaning they decided not to press any charges.  Drunk driver got off scot-free for killing a bicyclist.)

So maybe charges were finally filed in the case that started this thread, but I kind of doubt it.  And I no longer have the heart to keep tracking cases like this like I used to.  Someone else will have to do the follow-up on cases like this one now.

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#35 2012-07-22 20:56:21

jma6610
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Registered: 2011-06-12
Posts: 13

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

MichaelBluejay wrote:

jma6610, I don't know about this case, but when I used to track cases like this, it wasn't the case that there was just a slight delay before the police pressed charges:  literally *months* could go by with no charges being filed, and in at least one case, a driver who ran a red light near campus and killed a cyclist ultimately paid no fine, faced no jail time, and didn't even get a citation for running the red light in the first place. 

So maybe charges were finally filed in the case that started this thread, but I kind of doubt it.  And I no longer have the heart to keep tracking cases like this like I used to.  Someone else will have to do the follow-up on cases like this one now.


...just to be clear, I'm for giving most police departments the benefit of the doubt about any single case in particular, because I've seen many instances where there are extenuating circumstances that justified various decisions that on the face of it looked bad. But I do agree with you that if there are clear patterns toward ignoring this type of thing, that it is problematic.

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#36 2013-05-07 21:37:48

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

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

Better late than never....

http://www.kvue.com/news/Man-indicted--206511341.html

http://www.kxan.com/dpp/news/local/aust … ycle-crash

It will cost him, but Roy Minton will probably get him off.

Don in Austin

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#37 2013-05-10 01:49:14

dougmc
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Posts: 565

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

As I see it (and to be clear, I'm no expert), criminally negligent homicide will be a difficult charge to get a conviction for here.  Grand juries tend to do what the DA wants them to do, and so I imagine the DA wanted this indictment, but actually getting a conviction (which has a much higher burden of proof) sounds difficult.

The driver wasn't drunk, drag racing, evading the police, or even texting -- the factors that usually have a chance of resulting in serious criminal charges when somebody is killed in a traffic collision.  He wasn't even driving on a suspended license, and didn't flee the scene.

If this goes in front of a jury, the jury will go into full "there but for the grace of God go I" mode -- they'll identify with him.  Normally the jury can distance themselves by going "Yes, I drive, but I don't drive drunk/drag race/flee from the police" -- but there's no such factor here, so the jury members will see what he's being charged for as being something any of them could be charged for, and they'll be reluctant to convict under such circumstances.

Also, the Texas law definition for "criminally negligent" requires quite a large deviation from what normal people do -- but normal people are quite willing to drive on the shoulder.  The police report seems to say that the factors that led to the collision are: being where he didn't belong, failure to control speed and failure to yield.

Now, people break those laws all the time, and sometimes it results in collisions or deaths.  But usually there aren't any criminal charges.  I guess that being that they all happened together, that makes this criminally negligent?  That is often how it works -- screw up one thing, and it's just a tragic accident.  Screw up more than one thing, and it's criminal.  It still strikes me as a very difficult sell to a jury, to convict somebody of a felony when most of the members of the jury have done all the things that lead to Widener being there as the defendant except having a cyclist be in the right place at the wrong time.

Personally, I ultimately expect to see a plea bargain down to a higher level misdemeanor here.

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#38 2013-05-10 06:38:50

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

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

dougmc wrote:

As I see it (and to be clear, I'm no expert), criminally negligent homicide will be a difficult charge to get a conviction for here.  Grand juries tend to do what the DA wants them to do, and so I imagine the DA wanted this indictment, but actually getting a conviction (which has a much higher burden of proof) sounds difficult.

The driver wasn't drunk, drag racing, evading the police, or even texting -- the factors that usually have a chance of resulting in serious criminal charges when somebody is killed in a traffic collision.  He wasn't even driving on a suspended license, and didn't flee the scene.

If this goes in front of a jury, the jury will go into full "there but for the grace of God go I" mode -- they'll identify with him.  Normally the jury can distance themselves by going "Yes, I drive, but I don't drive drunk/drag race/flee from the police" -- but there's no such factor here, so the jury members will see what he's being charged for as being something any of them could be charged for, and they'll be reluctant to convict under such circumstances.

Also, the Texas law definition for "criminally negligent" requires quite a large deviation from what normal people do -- but normal people are quite willing to drive on the shoulder.  The police report seems to say that the factors that led to the collision are: being where he didn't belong, failure to control speed and failure to yield.

Now, people break those laws all the time, and sometimes it results in collisions or deaths.  But usually there aren't any criminal charges.  I guess that being that they all happened together, that makes this criminally negligent?  That is often how it works -- screw up one thing, and it's just a tragic accident.  Screw up more than one thing, and it's criminal.  It still strikes me as a very difficult sell to a jury, to convict somebody of a felony when most of the members of the jury have done all the things that lead to Widener being there as the defendant except having a cyclist be in the right place at the wrong time.

Personally, I ultimately expect to see a plea bargain down to a higher level misdemeanor here.

You prediction is likely correct IMHO.  If I was on the jury, however, or my wife -- who is not a cyclist -- we would NOT identify with the driver.  Passing on the shoulder on a road teeming with cyclists and which  even has signs alerting the presence of cyclists is pretty egregious.

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#39 2013-05-10 19:55:25

savanni
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From: Austin
Registered: 2011-04-30
Posts: 82
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Re: At-fault 85-y.o. driver kills 55-y.o. cyclist Verter Ginestra

Donald Lewis wrote:

You prediction is likely correct IMHO.  If I was on the jury, however, or my wife -- who is not a cyclist -- we would NOT identify with the driver.  Passing on the shoulder on a road teeming with cyclists and which  even has signs alerting the presence of cyclists is pretty egregious.

Passing on the shoulder or driving on the shoulder is pretty egregious.  Driving on the shoulder in that area is okay if you're making a right turn into one of the businesses, but *passing*?  No. NO NO NO.  Whether the road is "known" to have cyclists or not, NO.

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#40 2013-05-10 20:28:40

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

Have to agree.

Don in Austin

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#41 2013-05-11 09:06:20

Augenwinkel
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Registered: 2010-02-05
Posts: 16

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

Someday. Someday everyone will understand that driving a car is like operating a gun, and that the risk of someone else getting hurt is inherently very high, and that means the responsibility to watch out for all others outside the vehicle rests with the operator. (Someday everyone will understand that about guns too, for that matter.) That someday is not today, but I think it's coming slowly, especially with gen Y and their demanding ways (blush).

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#42 2013-05-13 12:56:18

dougmc
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Posts: 565

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

Donald Lewis wrote:

If I was on the jury, however, or my wife -- who is not a cyclist -- we would NOT identify with the driver.

Of course, with the way that our legal system is set up, and the fact that cyclists and even close friends of cyclists are a small minority -- the odds are extremely small that you or your wife or anybody else with similar views would end up on a jury like this.  (Unless you lied during the jury selection process, I guess.  Though I have to wonder how much research a lawyer can do on a potential juror during jury selection?  Can he enter somebody's name into google and see what they've posted online?)

In any event, the jury would be likely to be full of people who are mostly drivers and none of them have ridden a bicycle since childhood.  And what they see as being particularly egregious and even criminally negligent is likely to be different than what somebody who rides a bicycle regularly does.

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#43 2013-05-13 20:04:15

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

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

dougmc wrote:
Donald Lewis wrote:

If I was on the jury, however, or my wife -- who is not a cyclist -- we would NOT identify with the driver.

Of course, with the way that our legal system is set up, and the fact that cyclists and even close friends of cyclists are a small minority -- the odds are extremely small that you or your wife or anybody else with similar views would end up on a jury like this.  (Unless you lied during the jury selection process, I guess.  Though I have to wonder how much research a lawyer can do on a potential juror during jury selection?  Can he enter somebody's name into google and see what they've posted online?)

In any event, the jury would be likely to be full of people who are mostly drivers and none of them have ridden a bicycle since childhood.  And what they see as being particularly egregious and even criminally negligent is likely to be different than what somebody who rides a bicycle regularly does.

Doug, I am afraid you are probably right.

Don

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#44 2013-05-15 14:31:12

rich00
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Registered: 2010-01-18
Posts: 166

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

The thing is, Widener's speed must have been quite high, right? Driving on the shoulder with under 2 seconds range of view in front of you, is very dangerous. Driving on the shoulder at 20-30mph and passing stopped traffic is what I see, and it's not horrendous. You would have plenty of time to stop if you see a bicyclist or other object in front of you. But in this situation, he must have been doing at least 50mph, and that is the difference.

Driving 50mph - essentially blind to what is ahead - is criminal IMO.

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#45 2013-05-15 16:11:50

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

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

rich00 wrote:

The thing is, Widener's speed must have been quite high, right? Driving on the shoulder with under 2 seconds range of view in front of you, is very dangerous. Driving on the shoulder at 20-30mph and passing stopped traffic is what I see, and it's not horrendous. You would have plenty of time to stop if you see a bicyclist or other object in front of you. But in this situation, he must have been doing at least 50mph, and that is the difference.

Driving 50mph - essentially blind to what is ahead - is criminal IMO.

There is a question how well does he see at age 86?  Also, its a sad fact of modern American medicine that the overwhelming majority of people in that age bracket are full of pharmaceuticals that don't exactly enhance enhance reaction time or judgment.

Unfortunately, driving while impaired by prescriptions drugs although technically illegal, is almost never prosecuted except in the most extreme cases.  Two reasons for this being:  the common notion that if prescribed by a doctor "medication" must be benign,  and the lack of defined standards such as we have for blood alcohol content.

Don in Austin

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#46 2014-05-12 17:05:29

dougmc
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Posts: 565

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

Verter Ginestra's killer takes a plea

http://www.statesman.com/news/news/crim … ill/nftjt/

So, they tell us the age of Widener -- 87 years -- three times, but Ginestra's age -- 54 years old -- only once.  I guess we know which one was more relevant.

In any event, this is five years of deferred adjudication more than most get, so there is that.  That said, deferred adjudication is even less serious than probation -- I think after the five years are up, he'll even be allowed to have a gun and vote again.

I guess the prosecutor didn't want him to die in prison or even on probation.   Which is very nice of him, but Ginestra didn't get any such consideration, and even a small amount of jail time here could have served as a wake-up call to others who might drive without care.

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#47 2014-05-13 11:22:59

owlman
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Registered: 2011-12-16
Posts: 142

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

On the other hand, when was the last time someone causing a traffic death--unrelated to DWI or racing--was found guilty or plead guilty to felony manslaughter, much less criminally negligent homicide?

Despite the weak sentence, hopefully the DA counts this as a "win" and continues to pursue cases like this that deserve serious charges. They'll likely bring jail time for offenders under the age of 87 (or people who can't afford Perry Minton).

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#48 2014-05-13 11:55:45

dougmc
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Posts: 565

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

The Travis county DA is Rosemary Lehmberg, so I guess she's the one that would have offered thsi deal.

Her own personal history aside, the fact that there was any prosecution here is indeed quite unusual.  Personally, I thought the way this case would end up would be with a low level moving violation at most and some sort of civil judgement after that.

Still, deferred adjudication sends the wrong message ... a standard conviction with only probation or a token jail sentence would have been better.  Still, as I said ... this is better than I expected.

Any plea bargain accepted is considered a "win" by a prosecutor.

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#49 2014-06-13 14:09:43

owlman
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Registered: 2011-12-16
Posts: 142

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

Judge accepts plea deal

5 years deferred adjudication.  They don't say what the conditions are besides surrendering his driver's license.

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