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New Gross Negligence Vehicular Manslaughter Law: Added Justice For Cyclists


Last spring, Andrew Jelmert was just finishing up training for a charity ride from San Francisco to Los Angeles when he was struck and killed by a driver in L.A.’s Griffith Park. The Los Angeles Times reported that the driver of the gray BMW got out of the car and ran down an embankment before police caught up with him.

The driver, who had reportedly been drinking at the time of the crash and was speeding to pass another car, was charged with vehicular manslaughter. Advocacy groups called for more changes and cyclist awareness, especially as fatal hit and run accidents involving cyclists have been on the rise. In L.A. alone, police said 39 pedestrians and two bicyclists died in bike accidents within the first three months of 2022.

This year, a new law (SB 1472) has gone into effect that attaches gross negligence to a manslaughter charge in certain instances: when the offending driver is participating in a sideshow, showing an exhibition of speed or speeding over 100 miles per hour. While we can’t know for certain whether this could have been applied in the death of 61-year-old Jelmert, who was training to raise money for AIDS patients in San Francisco and the Los Angeles LGBT Center, it may be applied to future cases when a cyclist is killed by a reckless driver.

In the existing manslaughter section, according to California legislation analysts, it expressly states that “gross negligence” does not preclude a charge of murder upon facts exhibiting recklessness and a conscious disregard for life to support a finding of implied malice.

Why Does Gross Negligence Matter?

Case law has presented a pretty clear definition of gross negligence.

“(It) involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when (1) he or she acts in a reckless way that creates a high risk of death or great bodily injury and (2) a reasonable person would have known that acting in that way would create such a risk,” a judge ruled in a 1991 California vehicular manslaughter case. “In other words, a person acts with gross negligence when the way he or she acts is so different from how an ordinary careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.”

Prior to this most recent law, some acts couldn’t be considered “gross negligence” even with a vehicular manslaughter charge, which is defined as the killing of another without malice.

The new law is an alternate felony-misdemeanor, punishable either by imprisonment in county jail for up to one year or in state prison for up to six years. By contrast, vehicular manslaughter without gross negligence is a misdemeanor, which can result in serving up to one year in county jail.

State lawmakers expect more people may be sentenced to state prison because of the law that would have previously only been sent to county jail.

Increasing Risk

The new law comes as roads have become even deadlier for cyclists and pedestrians.

“Exacerbating these fatalities and serious injuries is the growing prevalence of reckless driving and speeding,” Sen. Henry Stern, the bill’s author, said in support of the legislation. “According to the Department of the California Highway Patrol, in 2021, CHP responded to almost 6,000 street races and sideshows, issuing 2,500 citations statewide, making 87 arrests, and recovering 17 firearms.”

Just this summer four pedestrians were struck, one of them killed, when a sideshow ensued in Oakland. Police chased the motor vehicle and the driver eventually crashed and launched a parked car into a group of people. The driver was charged with vehicular manslaughter with gross negligence.

Between 2017 and 2021, more than 2,500 bicycle accidents were reported in just the city of San Francisco, according to crash accident data. 10 cyclists were killed.

The true number of accidents involving cyclists and reckless drivers is hard to know. Officials don’t even know they’ve happened most of the time. Bicycle accident lawyers will tell you that bicycle crashes are far more common than these numbers reflect, as our bicycle law at Bay Area Bicycle Law get calls almost every day.

San Francisco adopted its Vision Zero plan, which aims to virtually eliminate traffic deaths of all kinds over the course of a decade, in 2014, but it doesn’t go as far to track crashes altogether. Slowing speeds on busy streets and designing safer roadways have been among the core principles of the plan.

“Globally, we’ve seen that Vision Zero is possible, but only with a significant shift in policies, politics, and resources,” the plan says. “We need state laws to allow the City to use proven tools that can reduce crashes, prioritize additional funding, and garner political support for transformative projects and programs. And we need to achieve the transportation and housing goals that can help create a safer environment.”

Still, some drivers are putting lives in danger in San Francisco and across the state by speeding and partaking in sideshow activity.

“Reckless driving and excessive speeding offenders fail to see the potential consequences of their actions and do not believe their behavior possesses a threat to those around them, feeling instead they have everything under control, until their reckless behavior turns their vehicle into a deadly weapon ‘accidentally’ harming other motorists and pedestrians,” Stern said of the new law.

Gov. Gavin Newsom signed the bill into law in September.