The election of numerous safe streets candidates earlier this month, followed by the exoneration of road-raging cabbie Faysal Himon and the gut-wrenching parade of daily traffic deaths since, create the best opportunity in years to impose meaningful consequences for sober reckless driving.
I have been told by numerous lawyers with state legislative experience that only Albany can tinker with criminal penalties for reckless driving. But I’m not sure that’s true. Outlined below is the case for legislative reform, the authority of the City Council to enact reform, and a proposed bill reflecting what reform should look like.
Why New Laws Instead of Better Enforcement of Existing Laws? Before putting new laws on the books, better to first ask whether existing laws are adequate to punish and deter sober reckless driving. New York State Vehicle and Traffic Law (VTL) Section 1212 — entitled “Reckless Driving” — would seem to fit the bill. It reads:
Reckless driving shall mean driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor.
Pretty good, huh? The statutory text requires only that a driver “unreasonably interfere with” or “endanger” another person to be guilty. The offense is classified as a misdemeanor, creating criminal penalties for reckless driving.
Isn’t the answer simply to vigorously enforce this law? No, for three reasons:
- Despite the clear “causing unreasonable danger/interference” standard spelled out in the statutory text, courts applying it have seized on the word “reckless” in the title of the statute and used it as a reason to smuggle in the entirely foreign penal law concept of recklessness, which requires a finding that the driver “grossly deviated” from “reasonable” conduct. This is a much harder thing to prove, as the Court of Appeals held in People v. Cabrera.
- Even if a “gross deviation” demonstrating recklessness is found, VTL 1212 does not specify a penalty, and so the default penalty for unclassified misdemeanors applies — a maximum of 30 days in prison and $300 fine.
- In practice, it is commonplace for judges hearing reckless driving charges to offer the driver an “adjournment in contemplation of dismissal” (ACD) which allows the driver to avoid prison time and a criminal record.
If you have the pleasure of receiving a summons to criminal court for cycling on a bike path or talking back to a cop, you will watch a handful of drivers who received reckless driving charges get off with an ACD and a fine of $100 to $200 (sidewalk cyclists are usually offered, and often take, the same ACD deal with a $50 fine). For a driver who injures or kills a vulnerable street user, an ACD plus a $200 fine is not meaningful punishment or deterrence.
Accepting as true that it is extremely difficult to win legislative reform of traffic laws in Albany, what can city government do?