Many of our cycling clients must interact with the criminal justice system, usually because the driver who hits them (or a member of their family) is charged with a crime or traffic violation.
Sometimes cyclists themselves are charged with traffic violations.!
Each state’s criminal laws are different, but there is a lot of overlap. These answers are based on North Carolina but should help you understand a little about the process in any state. These explanations should clear up much of the confusion, but we are always available to answer questions.
What is the difference between civil and criminal justice system?
In the civil justice system, people (or other entities) file lawsuits against other people (or entities) who have wronged them. The person filing a civil action is usually seeking damages, but they may also seek other remedies, such as forcing a person to stop doing something or asking the court to enforce a contract.
In a criminal case, the entity prosecuting the case is always the state or federal government. A person can ask the government to bring criminal charges against another person, but ultimately it is up to the government to decide whether to file charges and what sanction to seek. The injured person is the victim of the crime and not a party to the action. Victims of crime have certain rights (usually to be informed of court dates and to have their opinions heard), but criminal charges are always brought on behalf of the people of the state (or states). United) and not the victims themselves.
In a criminal case, the government can seek compensation on behalf of the victim. Restitution would come directly from the defendant (not an insurance company) and courts generally only award restitution for direct monetary damages, such as medical expenses. Logistically, restitution is often difficult to recover.
I was hit by a car while riding my bike. Can I hire a lawyer to represent me in criminal court?
Yes and no. The lawyers of the Bike Law network are civil lawyers. However, we often advocate for clients (as victims) in the criminal justice system. Depending on the case, this may involve providing advice to the client on the process, sending information to the public prosecutor and communicating with them to assist them. they pursue the case and/or meet with the prosecutor (also harassing a prosecutor who is not doing their job). We don’t charge a separate fee for doing these things; if the case warrants it, we will do them as part of our overall representation.
My loved one was killed by a reckless driver. How is it possible that this person doesn’t go to jail??
Many states’ laws don’t keep up with the reality of dangerous driving and distracted driving.
In North Carolina, to be charged with any crime, the driver must have at least committed an infraction, such as routine speeding or failing to stop at a red light. If the state can prove that the driver committed an offense and killed someone, then the driver will be charged with misdemeanor death by motor vehicle. Unfortunately, there is very little punishment for a misdemeanor, and a person with no prior driving history is unlikely to receive any jail time, no matter how serious the offense. In certain limited aggravated situations (such as drunk driving), the state may be able to bring charges of involuntary manslaughter or even murder.
To date, we are not aware of any North Carolina district attorney who has filed a prosecution for involuntary manslaughter or more serious distracted driving charges. We believe it could be done, but only with an adequate set of facts.[1]because the first distracted driving murder prosecution will set a precedent for the rest of the state.
What if I’m seriously injured but alive?
Unfortunately, the criminal charges available in serious injury cases are even less adequate than in death cases. Some district attorney’s offices have an internal policy that if the driver has insurance and there is a civil case, they will even dismiss violations (i.e. speeding, failure to stop ) against the driver.
In all cases where criminal charges are filed, we send a letter to the District Attorney’s Office requesting that they please pursue the case, regardless of a “letter of assurance.” In many cases, insurance coverage is not even enough to financially compensate the victim, and it certainly does not give them the feeling that justice has been served. District attorneys’ offices are supposed to consider the victim’s wishes in their decision-making.
In some cases, the state may be able to bring charges for assault with a deadly weapon inflicting serious injury. The deadly weapon, of course, is the car, and the state must prove that the driver intended to use the car in a manner likely to inflict serious injury. The injury must be debilitating and permanent to be considered “serious” under the criminal law.
Why on earth would the state dismiss a speeding ticket when I was injured?
This doesn’t seem to make sense at all. You’ve been injured by a reckless driver, the driver gets put in harm’s way with a speeding ticket, or failure to stop, or some other minor infraction, and then, even the ticket is rejected?! If that seems unfair to you, you’re absolutely right. Unfortunately, many court systems are saturated and overcapacity, and prosecutors look for any reason (“letter of assurance,” for example) to move their cases.
To learn more about this, see my interview with Mecklenburg County ADA Dan McNeil: https://youtu.be/VpY5noSe5uw
What’s next??
Most, if not all, states need to improve their laws to reflect the danger and prevalence of distracted driving. Research showing that distracted driving is as bad or worse than drunk driving has been around for years. It makes sense to extend drunk driving laws to distracted drivers. The challenge is to prove distraction; it would not be possible for police to confiscate and download a driver’s phone in all cases. However, this should be a requirement in all cases of death or serious injury.
[1] We believe an opportunity has been missed here: https://www.bikelaw.com/2019/01/death-by-distracted-driving/
Ann Groninger, North Carolina attorney and founder of Bike Law, has been advocating on behalf of North Carolina cyclists at the state level for over 15 years. Ann has offices in Charlotte and Durham and has helped clients with bicycle accidents in Asheville, Raleigh, Durham, Greenville, Wilmington, Fayetteville and throughout the state. Learn more about Ann on her bio page.