How guilty do you have to be?

One of New York City’s Mayor de Blasio’s early acts was a law jailing drivers who don’t yield to pedestrians. One of the judiciary’s most recent acts was to declare that law unconstitutional.

From my vantage point in Massachusetts this seems like a silly controversy. It was long ago settled here that if you run over a pedestrian, or hit a car, or miss either by that much, you can go to jail even if it was “just an accident.”

The judge struck down the law because it criminalized conduct based on the civil standard of “negligence” without requiring criminal intent. I don’t think that decision can stand. There is precedent saying laws should not be lightly assumed to criminalize negligence, but it’s easy to see this law was meant to criminalize simple negligence.

A similar case in Georgia involved a woman who hit a child in a crosswalk. Georgia’s strict liability law goes even farther than New York’s. The court said her only hope was to convince the jury that the boy ran in front of her leaving her no chance to stop. That’s what she said, but the jury convicted anyway.

But the U.S. Supreme Court has a strange obsession that might undo New York’s law. The law makes an exception “if the failure to yield and/or physical injury was not caused by the driver’s failure to exercise due care.” A law written this way stands or falls on the mood of the judiciary.

The Supreme Court has decided it wants to be defendant-friendly by requiring the prosecution to prove each element of a crime beyond a reasonable doubt.

Let’s make an analogy. Suppose the law prohibits driving with a BAC over 0.08%. That’s mainstream. The courts love to send people to jail because a machine said so. Now suppose the law says it’s illegal to drive under the influence, and a driver with a BAC over 0.08% is under the influence unless he proves otherwise. The courts would throw out that law as violating defendants’ rights, even though it is more defendant-friendly than the present law. You can’t make the defendant prove innocence.

So what does New York City’s law mean? Does the city have to prove the driver was careless, or does the driver have to prove he was not?

If it is illegal to carelessly run over a pedestrian who has right of way, and the defendant has to prove he wasn’t careless, then it’s a violation of rights.

Or the courts might see it a different way. Another judge upheld the law against a similar challenge.

These decisions are not binding on future judges. The appeals courts will have to decide.

And the best defense is still to convince the cops that you weren’t at fault. Or be a cop.

The opinions expressed in this post belong to the author and do not necessarily represent those of the National Motorists Association or the NMA Foundation. This content is for informational purposes and is not intended as legal advice. No representations are made regarding the accuracy of this post or the included links.

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