NMCycling

Letter from Jennifer:

Mark Motsko

Public Information Officer

Department of Municipal Development

City of Albuquerque

There was a Ghost Bike for cyclist Roy Sekreta, 1964-2008, located at the intersection where he was killed, at Comanche NE where the North Diversion Channel multi-user path crosses.  This bike was the second Ghost Bike put there for Roy.  And like the first, this one too has disappeared.

I have been told that it was taken down under directive of the Department of Municipal Development, thus I am writing to you.  I rode by the Ghost Bike on Tuesday evening, November 17^th and e-mails started circulating on Wednesday November 18^th that the Ghost Bike was gone.

What happened to this road side memorial?  Do employees of the Department of Municipal Development not realize that there is a state law that protects Descansos, or Road Side Memorials?  This Ghost Bike was put there to memorialize Roy.  Cyclists, friends and family want to remember what happened, who Roy was and the fact that his life ended too early.

I want to know what happened to that Ghost Bike.  There was no legal reason to take it down as I read the state law and I want it put back.

I await your comments,

Jennifer Buntz

1309 Arizona St NE

Albuquerque NM 87110

bikefunsafe@gmail.com

30-15-7. Desecration of roadside memorials; penalty.

A.    A person shall not knowingly or willfully deface or destroy, in whole or in part, a descanso, also known as a memorial, placed alongside a public road right of way to memorialize the death of one or more persons.

B.    A person who violates the provisions of Subsection A of this section is:

(1)    for a first offense, guilty of a petty misdemeanor and upon conviction shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978; and

(2)    for a second and subsequent offense, guilty of a misdemeanor and upon conviction shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.

C.    The provisions of this section shall not apply to law enforcement officials or other employees of the state or a political subdivision of the state who in the course of the lawful discharge of their duties move or remove a descanso that obstructs or damages any public road in this state or to an owner of private property upon which a descanso is located.

__________________________________________________________

Letter from Steve:

Hello Mr. Motsko,

A ghost bike memorial has been in place at the intersection of the multiple use path that runs parallel to the North Diversion Channel and Comanche to memorialize Roy Sekreta, who was killed at that location in a collision with an automobile in March 2008.  I frequently ride along that path, as do several acquaintances of mine.  Sometime between Tuesday evening and Wednesday morning this week, the ghost bike memorial for Roy Sekreta was removed.  I have some second-hand information indicating that this removal was instigated by the Dept. of Municipal Development, City of Albuquerque, for whom I believe you are the Public Information Officer.  I am thus writing to you in hopes that you will be able to help me understand and address this situation.

If, in fact, the City of Albuquerque had any role whatsoever in the removal of the memorial to Roy Sekreta mentioned above, I wish to lodge a formal complaint in regard to this action.  In my view, the Roy Sekreta ghost bike was a roadside memorial (descanso), and as such is protected by New Mexico State law.  Such memorials are sacred, and are protected by law for a reason.  To me, that memorial was there to remember Roy, and also to remind bicyclists and motorists alike to pay attention and to drive with care through that intersection.

Thank you for your attention in this matter.

-Steve

THE BICYCLING BARRISTER™

After the tragic deaths of James Quinn and Roy Sekreta, many bicyclists have questioned why motorists who kill bicyclists on New Mexico’s public roadways are not charged with, much less convicted of, homicide. For example, the young woman responsible for the James Quinn fatality that occurred on old Rt. 66 just west of Tijeras in 2007 was cited solely for failure to maintain lane, a “careless driving” citation. We know that these drivers did not intend to go out and kill a bicyclist, but kill they did. We also know that these drivers were not charged with or convicted of homicide, yet kill they did. The reason for this seeming contradiction lies in the wording of New Mexico statutes and the precedence set by case law.

First, a few definitions are in order. “Manslaughter” is the unlawful killing of a human being without malice.¹ “Involuntary manslaughter” is defined as manslaughter committed in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection. The “lawful act” portion of the involuntary manslaughter statute includes the statutory phrase “without due caution and circumspection,” which involves the concept of “criminal negligence.” Criminal negligence includes conduct which is reckless, wanton, or willful. Thus, a showing of criminal negligence is required for conviction of involuntary manslaughter, whether based on the “unlawful act” or “lawful act” portion of the statute, and irrespective of the underlying statutory basis for the conviction. Careless driving in NM is defined as “mere imprudence.”² Reckless driving requires a “willful or wanton disregard of the rights or safety of others.”³

Careless drivers who kill bicyclists or pedestrians in NM cannot be convicted of involuntary manslaughter. The general crime of involuntary manslaughter cannot be based upon violation of a careless driving statute, which requires a showing of only civil negligence. The mental state needed for a conviction of involuntary manslaughter comprehends evidence of an utter irresponsibility on the part of the defendant or of a conscious abandonment of any consideration for safety.⁴ Therefore, reckless (not careless) driving is required to convict a motorist of manslaughter.

In the case where a driver of a vehicle commits involuntary manslaughter, the NM legislature has preempted this crime with the specific crime of “homicide by vehicle,” as the predicate offence is a violation of the Motor Vehicle Code. The New Mexico homicide by vehicle statute sets forth only four predicate offenses for conviction as third degree felonies:5 (1) driving under the influence of intoxicating liquor, (2) driving under the influence of any drug, (3) reckless driving, or (4) willfully refusing to come to a stop when so directed by a uniformed officer in a marked police vehicle. As you can see from the wording of the statute, in New Mexico, careless driving cannot be used as a predicate for a homicide conviction. There is no such crime in the New Mexico Motor Vehicle Code as “homicide by vehicle by careless driving.” In NM, a conviction for the specific crime of homicide by vehicle must be based upon more than ordinary negligence: reckless behavior must be found. The conduct of a driver of a vehicle must be proven sufficient to establish, beyond a reasonable doubt, to have been so reckless, wanton, and willful as to show an utter disregard for the safety of bicyclists, in order to convict the driver who kills a bicyclist of homicide by vehicle. Currently in NM, courts have deemed that certain driving behaviors such as failure to maintain lane do not rise to “reckless” conduct, even when it leads to the death of a bicyclist: this behavior is merely “careless.” Other states have recognized there is a problem with their state statutes and are changing the law to reflect that careless vehicle operators who kill bicyclists have committed homicide and should be punished comparable to any other person who commits a homicide.

1 N.M. Stat. Ann. § 30-2-3 (1994)

2 New Mexico’s careless driving statute states: A. Any person operating a vehicle on the highway shall give his full time and entire attention to the operation of the vehicle. B. Any person who operates a vehicle in a careless, inattentive, or imprudent manner, without due regard for the width, grade, curves, corners, traffic, weather, and road conditions and all other attendant circumstances is guilty of a misdemeanor. N.M. Stat.Ann. § 66-8-114 (1994)

3 New Mexico’s reckless driving statute states: A. Any person who drives any vehicle carelessly and heedlessly in willful or wanton disregard of the rights or safety of others and without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property is guilty of reckless driving. N.M. Stat. Ann. § 66-8-113 (1994)

4 State v. Yarborough, 122 N.M. 596 (N.M. 1996)

If you are interested in changing New Mexico’s laws, please contact me so Bike Coalition of New Mexico and BikeABQ can start planning on how to do just that. Additionally, please e-mail me at diane@bikeabq.org with questions that you’d like to see addressed in future Bicycling

Barrister columns. Important notice: The information provided in the “Bicycling Barrister” column is not legal advice. It is provided solely for the general interest of the readers of “Tailwind” and should not be relied upon or interpreted as legal advice. Reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Diane Albert. 5 N.M. Stat. Ann. § 66-8-101(C)-(F)

Considering all the recent commentary on the USA Today article “Two-wheel troublemaking: Have motorists let bicyclist ‘right’ go too far?” the conviction of the motorists in LA and comments on this list-serve, one thing keeps coming to my mind: What we think about ourselves and our ability to effect what happens to us while we are out riding.

My main point: Cyclist are not hapless road users who have no ability to influence the situations in which they find themselves.

The USA Today article said “As the deaths mount…” which to me anyway implies that the author feels that as the number of cyclists increases, the number if cyclists fatalities will also increase.  This however is not supported by several studies, the most recent of which I have seen was conducted in (of all places) New York City.  The numbers clearly show that initially the line representing an increasing number of cyclists on the road parallels the line representing fatalities.  Eventually however, if the numbers of cyclists continue to increase, the line representing fatalities levels off, even falls.  This has been shown in Australia (D. L. Robinson. “Safety in numbers in Australia: more walkers and bicyclists, safer walking and bicycling” Health Promotion Journal of Australia. 2005 : 16 (1) 47-51.) and supporting data is summarized from 68 California cities, 47 Danish towns, 14 European countries, the UK and the Netherlands in a paper by P. L. Jacobsen, Injury Prevention 2003;9:205–209.

So, what we do matters.  The more trips made by bicycle the safer cyclists are.

To further reinforce this idea that what we do matters I will just give you some excerpts from a few emails people have been kind enough to send me about their approach to cycling safely.

“I find that a friendly wave does a lot to ease the tension. I always wave to a motorist when I’m coming up on an intersection where they have to stop and I don’t, ie) a driveway or a small road that they are on.  I wave and make sure they either acknowledge me with a wave or a nod of their head in return.  This seems like a friendly gesture, but I actually do it for my own safety.  Either way, it works.”

“We have made it a point to wave at all truck drivers and many other vehicles.  We definitely feel that it makes a tremendous difference.  Trucks routinely give us the lane (we ride on the white shoulder line) and some even wait for oncoming traffic to clear before passing.  Most of the trucks are repeats – we see them several times a week, so we’re “known” to them.  I hope the goodwill they show us carries over to other cyclists as well.”

“When I started (waving), I would occasionally get a wave back from the driver.  Now, I almost always get a wave and when they come around me, they ease up and give me some room – and wave!  I think this approach could work for anyone who rides the same roads during the week.  An additional benefit has been that cars behind see the trucks giving me some space and they typically follow suit.  It’s amazing how people turn into sheep in cars.  If one car does it, everyone does it.”

“(to facilitate a safe pass by motorists) I just stick out my hand to the side with 5 fingers extended, meaning “gimme 5”  It works quite well, in general.”

“I like to direct traffic around me when I’m riding in town.  On busy streets with left turn lanes, if someone is waiting for me to pass so they can turn left across my lane, I usually hold up my hand to say “stop.”  I make eye contact to the extent possible and then when I’m clear, I give a wave of thanks.  I find that people just don’t know what to do when they encounter a cyclist.  If I take control and give directions, they obey. They’re usually not happy about it but they do it!”

These are some of the stories about how we interact with traffic that I have that are written down, but there are countless more that people have told me, or that I have experienced myself, strong evidence that we do influence what happens around us and that we can influence it for the better.  There are also many other approaches, like riding predictably as vehicles on the road, obeying traffic laws ourselves, signaling when we turn, etc

None of this is a guarantee of safety, and in no way is it something that gives motorists a bye when they choose to engage in unsafe behavior.  But I feel these stories illustrate how our own attitude and actions are also important pieces of the puzzle in creating a safe cycling environment, just like motorists education, law changes and enforcement, etc. I  wanted to make sure this approach was part of the discussion too.

Thank you,

Jennifer