A Queens judge ruled on Friday that the Right of Way Law, which empowers beat cops to charge reckless drivers who kill or injure pedestrians walking with the right of way, is unconstitutional.
Queens Criminal Court Judge Gia Morris released the ruling on Friday in favor of Isaac Sanson, a school bus driver who fatally struck 85-year-old Jeanine Deutsch in December 2014 as she crossed the street in Forest Hills. Sanson was one of the first NYC drivers to be charged with the Right of Way law, which made failure to yield a misdemeanor offense carrying maximum penalties of a $500 fine and 30 days in jail.
Previously, unless an NYPD officer witnessed the crash, drivers had to be intoxicated or break numerous laws in order to face consequences.
In her ruling, Morris argued that because drivers can be charged under the Right of Way law even if their intentionality or awareness of committing a violent act can't be proven, the law violates Sanson's due process.
"The very fabric of our criminal justice system is that an accused person stands before a court innocent until proven guilty, and is entitled to significant constitutional protections separate and distinct from a civil case,” Morris wrote.
It's true that the vast majority of criminal convictions hinge on a court's assessment of the perpetrator's mental state—whether he was aware of, or intentional about, the crime. Whereas in civil cases, a judge must only decide that the perpetrator failed to be "reasonably prudent."
But safe streets advocates argue that the same burden of proof applied to failure to yield also applies to drunk driving, also a criminal offense.
"There is absolutely no awareness of wrongdoing that is required in order to hold someone who strikes a pedestrian while driving drunk criminally liable," attorney Steve Vaccaro, a safe streets advocate who represents victims of traffic violence, told Streetsblog this week. "All that needs to be shown is that the person is in a state of intoxication and that the person's car hit another, period."
Responding to Judge Morris's ruling on Thursday, Transportation Alternatives director Paul Steely White pointed out that the Right of Way law was amended last fall, to explicitly define the driver's responsibility as "that care which is exercised by a reasonably prudent driver." The amendment was part of a settlement with Transportation Workers Local 100, which sued the city after six MTA bus drivers were arrested and charged with misdemeanors for failing to exercise due care and fatally striking pedestrians.
"The reference to civil negligence standards in the statute itself makes unmistakable that City Council members who adopted [the Right of Way law] intended to apply criminal penalties based on a civil negligence standard," he stated. "Judge Morris’ decision fails to acknowledge that legislators can and do apply criminal penalties based on negligence."
Mayor de Blasio's office issued a statement Tuesday indicating that the city will continue to enforce the Right Of Way Law, regardless of this ruling.
"[The law] is a vital tool to hold accountable drivers who seriously injure or kill pedestrians with the right of way while driving dangerously," said a de Blasio spokesperson. "This is an important piece of Vision Zero’s comprehensive approach to reducing death and serious injury on the streets. We disagree with the court’s non-binding decision and will continue to investigate, enforce, and charge this law."
Queens DA Richard Brown told Streetsblog that his office is considering an appeal stating, "We are studying the decision and weighing our appellate options."
Setting aside the question of its constitutionality, reports suggest that the Right of Way law has been underutilized. According to a report issued by Transportation Alternatives last December, drivers who failed to yield caused 5,966 crashes resulting in death or injury last year. In that same time period, only 24 drivers were charged.
