Zach Bauer on Driving Violations

Anyone who operates a motor vehicle is at risk of an accident. If a driver is negligent or careless behind the wheel, causing the accident, there could be criminal charges. Zach Bauer of Meshbesher & Spence recently stopped by Minneapolis’s KROC AM to discuss driving violations.

Driving Under the Influence

Explain the difference between careless driving, reckless driving, and criminal vehicular operation. Those are three parts of the same criminal statute. They specifically fall under the traffic aspect of that criminal statute. There are very small differences between each of those, but there are obviously major differences in the way in which they can impact a person when it comes to criminal charges. Starting with the most serious thing, which is criminal vehicular operation. These are high-level felony offenses typically, especially when it involves potential death of an individual or significant bodily harm.

It doesn’t have to do with the drinking? There can be two different parts to that operation. There’s part of the statute that says if you’re under the influence of alcohol or over .08, which is kind of an absolute in Minnesota, or under the influence of a controlled substance, then the state has to prove that, number 1, your driving conduct was negligent, and secondly, that it was a substantial factor in the death.

What if the person wasn’t under the influence of alcohol or drugs? There’s another part of that statute which says that you can be driving free and clear of alcohol and/or controlled substances but driving your vehicle in a grossly negligent standard. This part is interesting because nobody took the time to actually describe what gross negligence is in the statute, so we’ve kind of had to make it up as we go along, which isn’t always a good way to do it. But that’s what we’re doing. I usually tell clients it applies to a situation where you’re both through a stoplight and you’re over .08, where there’s negligent driving conduct and if not for that driving conduct, this accident wouldn’t have happened and it was a substantial factor. Or the person that’s driving blindfolded down the road at 100 miles an hour and just doesn’t seem to care about anything that may happen, that certainly is gross negligence.

Reckless and Careless Driving

Where does texting while driving apply under the law? Even though it should, texting while driving probably doesn’t get you to gross negligence. I think that it probably falls more into the line of potentially reckless driving. Which is kind of the second tier down.

Does the outcome of the accident affect what the charge is? Yes, reckless driving can be either a misdemeanor or a gross misdemeanor, depending on whether or not the harm that’s caused is either great bodily harm or death. And in a death situation or in the great bodily harm situation, the state has to be able to show that your driving conduct was such that you either should have been aware or you consciously disregarded. So even though I know that I’m aware this is problematic, or I should be aware of it, or I just say, “I’m not even going to worry about it,” you know you shouldn’t be texting, and that it is a substantial deviation from normal driving conduct by a reasonable person.

Is it a substantial deviation? As society moves forward, this is going to be one of the issues. It’s certainly something that we don’t condone. We don’t like it. We shouldn’t do it. We know all the different factors that talk about how texting is almost as bad as drunk driving, quite frankly, when it comes to your reaction time. But is it a substantial deviation from what a reasonable person would do? Right now I would say it is. Fifteen years from now, maybe not. As you think about those people who are in their teens, are they going to be looking at texting the same way that maybe our parents looked at driving around with a cell phone glued to your ear? Both can be distracting. And so I think it’s going to be interesting how that plays out.

So you think texting could be given a lesser charge? Right now I think clearly if you’re texting and driving, you cause an accident, and they can show that you were texting at the time that the accident took place, I think that clearly puts you into that reckless standard. Otherwise, we drop down further to a careless driving standard, which is, quite frankly, you’re driving in a situation where you’re maybe weaving over the line and you cause an accident. You’re distracted in a form but maybe not to the level of texting. Although from my perspective, texting could either be careless or reckless. I think it’s mostly based upon how the accident took place and what the injuries are.

Criminal Vehicular Operation

When does the more serious charge of criminal vehicular operation come into play? Have you been following this case in Byron where the guy hit the kid who was going down an embankment on a wagon, went through the ditch into the road? The speed limit was 55. He was going under the speed limit, but he had a few beers beforehand, so legally he was either over the limit or at the limit.

He was charged with gross misdemeanor reckless driving. Right. I read that his blood concentration was between .08 and .101, which would mean that he is above the legal limit of .080. The state still then in a criminal vehicular operation case would have to show that his driving conduct was negligent and that it was a substantial contributing factor to the death. I think the issue that potentially exists here is that it doesn’t appear to be on its face negligent, in the sense that none of the driving conduct in and of itself, the driving below the speed limit, the coming, I’m assuming, to a stop. This would be one of the factors I don’t know. How’d you do on your field sobriety test? How was your reaction time? Could that accident have been avoided if the person was sober? Those are some of the factors that have to be taken into consideration when making a charging decision. But the state did not feel that that was something they could reach.

So they charged him with reckless driving. Charging him with reckless driving, which is a situation where he has to consciously disregard the risk, and the risk appears to be simply drinking three beers on an empty stomach? I think that’s a tricky level to get to. I think certainly there seems to be evidence for a DUI that exists. But it’s a tragic situation, from the outside looking in. It’s an interesting legal issue, but certainly, I know that everybody kind of mourned for that whole situation. It’s easy when you’re a prosecutor to make those decisions. And it isn’t a good situation when you’re the person being charged either.

It complicates things when you have the family of a five-year-old who lost his life. In an instant, life can change for everybody, so you need to always be hyper-vigilant.

If you’ve been in a vehicular accident or need legal advice for any other reason, contact the attorneys at Meshbesher & Spence, 507-280-8090. They can walk you through the law as it applies to your case and offer guidance on how to proceed.