In fatal crashes, often only a ticket

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In fatal crashes, often only a ticket

Article by: KATHERINE LYMN and MATT MCKINNEY
Updated: May 27, 2011 - 10:41 AM

Many careless drivers who take a life face just a misdemeanor.

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Just days before she was to start her life as a college freshman, Jacquelynn Devney, 18, was weeding near a Farmington road in July of 2006 when a car veered off the pavement, hit a road sign and slammed into her. Devney was killed instantly.

The driver, a nurse coming home from a night shift, told police she nodded off behind the wheel. She was convicted of a misdemeanor charge of careless driving and sentenced to community service and a year's probation. The punishment bewildered Devney's family.

"As far as I was concerned, the lady was charged for running over the sign -- not killing my daughter," said Eileen Devney, Jacquelynn's mother.

But the case was not unique. In Minnesota, where 412 people died in traffic accidents last year, many careless drivers who kill end up facing only a misdemeanor. That's because a tougher, felony charge requires proof that they acted in an extremely dangerous manner.

Misdemeanors carry a maximum of 90 days in jail and a $1,000 fine, though drivers rarely get jail time. Those who fall asleep behind the wheel, reach for the cellphone at the wrong time or just forget to check the side mirror before turning often simply pay a ticket, say prosecutors.

It's not known what percentage of fatal crashes caused by careless drivers end with a misdemeanor charge, but high profile examples abound: A teen in Winona recently got probation for his part in a 2010 drag-racing crash that killed three. A Lakeville teen got six weekends in jail after driving without headlights over the center line and into oncoming traffic in 2009, also killing three.

Such cases have spawned a grass-roots campaign to draw attention to the law as well as an annual and so far fruitless legislative effort to toughen it.

"It's a gray area of the law," said Dakota County Attorney James Backstrom. "It's a problem that prosecutors like myself struggle with all the time, and juries also have a difficulty addressing those cases."

He charged the driver who killed Devney with a misdemeanor after a grand jury said there wasn't enough evidence to pursue a felony.

Motivated by that experience, Backstrom started the legislative effort that would create a third option, a gross misdemeanor, with a maximum penalty of a year in jail. The bill has died in committee for five years in a row.

'Like most of us'

Efforts to change the law have met resistance from legislators who often say a version of the same thing: It could happen to anybody.

"I'm a driver, like most of us, and occasionally we'll do something dumb because it just happens," said Rep. Carlos Mariani, DFL-St. Paul, at a legislative hearing earlier this year. I "just want to be clear here that if we were to adopt this, in truly instances of an accident, will there be room ... to accommodate that instance?"

Jurors feel some of the same qualms, said McLeod County Attorney Michael Junge. "Many people on our juries are in that same position, where they have done something really stupid, like falling asleep and spilling hot coffee in their lap," he said. "Some jurors say, 'There but for the grace of God go I.'"

A potential drawback of having a gross misdemeanor is that it could make it harder to get a felony conviction because juries might compromise, opting for the gross misdemeanor, said John Kingrey, executive director of the Minnesota County Attorneys Association, which nonetheless voted to support the tougher law.

But Rep. Pat Garofalo, R-Farmington, who authored one of the failed bills, said those concerns are outweighed by the need to give prosecutors flexibility in their charging decisions.

Punishment for negligence that causes traffic deaths should be based at least in part on the amount of damage done, just like for other offenses, said Nancy Johnson, president of Minnesotans for Safe Driving and the group's lobbyist for the stronger penalty.

"If you hit someone with your fist and you cause a black-and-blue eye, or you have a fight and it causes a breakage of bone, or you have a fight and they get killed, there's a different penalty for each one of those," she said.

A misdemeanor doesn't reflect the severity of careless driving that kills, said Timothy Richards, supervising attorney in the criminal division of the Minneapolis City Attorney's Office, which supports the tougher law.

There's a fine line, Richards said, between grossly negligent driving and careless driving. "But when either results in the death of another person," he said, "there's a huge chasm between the penalties. ... Our hands are often tied."

Top of the docket

As a misdemeanor, careless driving -- even when it results in death -- often is handled with petty crimes at court hearings.

Coni Nash found that out after a young driver going 70 miles per hour slammed into a car driven by Nash's 32-year-old daughter, Sara Kaufman, killing her as she waited to merge onto the highway to go home.

The other driver was charged with careless driving. At the Anoka County courthouse last year, Nash had to sit through four hours of other misdemeanor cases before the driver was called before the judge.

Nash said the other cases included DWIs, probation violations and some "B.S. about some guy who didn't pay his fine for building a shed in his yard."

"Oh, that day was brutal," she said. "We were there at like 8:30 in the morning, and it was just a joke."

The 19-year-old driver was convicted and sentenced to community service. She lost her license for a single day -- the one-year anniversary of the crash. "They made a mockery of my daughter's death," Nash said, "and that's what I said to the judge."

Sharon Gehrman-Driscoll, a victim advocate with Minnesotans for Safe Driving, wants at least to get the careless driving deaths to the top of the misdemeanor docket.

She's sending sticky notes to all state attorneys and judges to encourage them to mark which misdemeanors resulted in death or serious injury and get those to the top of the pile, getting victims' families out of the courthouse as quickly as possible.

A first step

Eileen Devney often relives the day her daughter died.

"We said our 'good mornings' and that we hoped that she'd have a good day at work, and she left about 20 after 6," Devney said.

At weddings of Jacquelynn's friends, Devney feels a hole. At the family farm, where Jacquelynn would lay irrigation pipe and vaccinate cattle, an equipment hangar houses an ominous wooden cross that tells Jacquelynn's short life story in messages and souvenirs.

On the stretch of Pilot Knob Road where she died, there's a SuperAmerica gas station -- the last thing the driver remembered seeing before she feel asleep, she told police. A half-mile up the road is where she struck Jacquelynn. And 140 feet beyond that is where the body landed.

While Devney believes even a gross-misdemeanor conviction wouldn't have been serious enough for the driver, having that option in the law would be a good first step, she said. Nash said the same.

"It's got to start somewhere," she said. "The slaps on the wrist have to stop."

Katherine Lymn is a University of Minnesota student on assignment for the Star Tribune Matt McKinney • 612-673-7329

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