By GLENN C. McGOVERN
Attorney and MSF Basic Instructor
On May 13, 2019, I was asked to testify before the Louisiana Legislature House of Representatives Transportation Committee to support House Committee Resolution 46. Before I tell you the story of what objections I heard I have to tell you how I got there that day.
I am head of Advocacy and Legislation for the Louisiana American Bikers Active Toward Education (A.B.A.T.E). Representative Polly Thomas agreed to sponsor the resolution and I was asked to speak to ask for committee approval of the 16 members. The resolution would send the Model Vulnerable All Road Users Act to be studied by the Louisiana Law Institute. The Model Vulnerable All Road Users Act is adopted by 9 stated in the U.S. It provides judges and district attorneys with multiple options to penalize automobile driver who injure and kill motorcyclists. The Act’s stiffer penalties will act as a deterrent to stem the growing number of fatal car into motorcycle crashed in Louisiana. The Act provides for penalty options for car drivers who kill motorcyclists to include community service, driver’s license suspension/revocation, stiffer fines and possible jail time.
The great thing about the Act is it gives Judges and District Attorney’s options to use on a case by case basis. I have been trying to get this passed in Louisiana since I joined La. A.B.A.T.E. in 2008 after a Pearl River motorcyclist lost a leg to a drunk driver with a suspended license who was given a no-seat belt ticket and paid a small fine. The drunk Suburban driver was no given a blood, urine nor breath drug/alcohol exam by the Pearl River Police. The drunk driver did not even have to go to St. Tammany misdemeanor court, but just sent in her fine payment of $162.50 the day after the crash that amputated the motorcyclists leg. This really upset me. I then joined with La. A.B.A.T.E. to get the law changed to protect motorcyclists in Louisiana. La. A.B.A.T.E. is the only motorcycle group that lobbies for motorcyclists rights in La. None of the other motorcycle clubs do so, but they depend on La. A.B.A.T.E. to do so. Call me a radical zealot if you want, out to protect motorcyclists from reckless car drivers, but this seems a reasonable approach to me. It seems ridiculous to me that:
1. When a car driver kills a motorcyclist, the driver’s license of the car drive is never suspended under present law.
2. A car driver who kills a motorcyclists and not be reexamined and retrained in motorcycle awareness.
3. A car driver who kills a motorcyclists will only be charged with a misdemeanor traffic violation and be made to only pay a small fine even when a car driver kills a motorcyclist.
4. A car driver who kills a motorcyclists is rarely blood and urine tested for drugs and alcohol—but the dead motorcyclist’s corpse is always tested.
5. A car driver will rarely be charged with a felony such as vehicular homicide, negligent injuring or manslaughter even when the car driver kills a motorcyclists due to a failure to yield.
6. A car driver that kills a motorcyclists will only have to pay a small fine of about $282.
7. A car driver that kills a motorcyclists does not even have to show up in court but can just pay the fine in advance.
8. The car driver who kills or seriously injures a motorcyclists does not have to pay any restitution for even medical bills of an injured motorcyclist.
However, most non-motorcyclists car drivers do not see it this way! They think the present law is adequate and other criminal laws such as negligent homicide are adequate—even though car drivers that are negligent never are charged with a felony. When presented with actual cases where the car driver just paid a small fine after killing a motorcyclist, the still do not want the law changed. Here is some of the objections I heard that day by a few of our legislators I call “negative attribution defenses”:
1. IT’S JUST AN ACCIDENT DEFENSE: When a car driver kills a motorcyclist due to a negligent act such as online shopping, texting, eating in the car while driving, putting makeup on while driving, messaging, talking on a cell phone, or using the car’s GPS or information display system with wi-fi the car driver excused killing a motorcyclist as it is still “JUST AN ACCIDENT”. So it’s okay to kill a motorcyclist anyway.
2. CROUCH ROCKET DEFENSE: The car driver always excuses the negligent act of killing a motorcyclist by mentioning the motorcyclist they have seen on a sport bike called a “crouch rocket”, “donor cycle” or “rocket bike” wheeling and weaving in and out of traffic at high speeds. So, it is okay to kill a motorcyclist anyway.
3. SOCCER MOM DEFENSE: When a car driver violates traffic laws and kills a motorcyclists, do we really want to put a soccer mom or elderly person who just made a mistake killing a motorcyclist in jail?
Not unexpectantly, I heard all the above from a minority of the House Transportation committee members. I heard all the above defenses when I am in talking with District Attorneys in criminal courts advocating for the prosecution of the reckless motorists or during the course of litigation. I have also done much jury focus group research with focus groups and the above defenses always come up in focus group discussions. You have to overcome these defenses to win. I have learned how to do this and we do so and win record judgments all time.
No matter how long I have done this fighting for motorcyclists advocacy work, I am always shocked how car drivers view the lives of motorcyclists as being worthless and not worthy of protection of the legal system. There is genuine hatred there for motorcyclists and scooter operators.
I will always believe that when a car driver violated the traffic laws or is driving distracted or driving impaired by drugs or alcohol, the criminal justice system needs to impose still penalties to deter such reckless conduct. Conduct condoned is conduct repeated. We are losing too many motorcyclists, scooter operators, bicyclists and pedestrians to distracted and drug impaired drivers. I almost had the legislature pass the All Road Users Act, then called S.B. 171 in the 2016 session passed. We missed by about 5 votes in the House after passing the bill in the Senate. I will never give up.
I need your help though. I need you to write your legislator a letter, email and call. I need people who have been injured or loved ones killed by car drivers to testify at committee hearings. Together, we can do this. Every crash costs us all in the community in higher insurance rates, hospital bills, Medicare, Medicaid and medical insurance. We are all in this together.