“You have penalties in society in order to create a deterrent,” he said. “But I don’t think we’re doing that with regard to how people drive in the city.”
Failing to yield to pedestrians and cyclists, a common cause of accidents, carries a penalty of up to $750. The practice of opening a door in the path of a moving cyclist or car — so-called dooring — is illegal, but carries just a $150 fine. Last month, Em Samolewicz was killed while riding her bike after a driver opened the door of his van into traffic, causing her to crash and tumble. A tractor-trailer ran over her.
To date, only one vehicle-related cyclist death has reached the trial stage. Last October, a bus driver was found guilty of killing a cyclist after a bench trial in State Supreme Court in Manhattan. The judge convicted the driver of failing to yield the right of way, a misdemeanor, and failure to exercise due care, a violation.
Part of the reason so few cases reach trial, lawyers said, is that they are difficult to prove in court. Judges use the so-called rule of two: There has to be evidence of egregious behavior or a gross deviation from normal behavior, and prosecutors must show that the driver violated at least two traffic laws.
Defense lawyers said that criminalizing drivers who fail to exercise due care — by briefly taking eyes off the road to calm a child in the back seat, for example, or being momentarily distracted by a cigarette falling on a lap — is too harsh.
“To saddle someone with a criminal record that could decimate their career, their family, their ability to provide for their family, have a future, is, on its face, not big of a price to pay when someone dies and there’s a tragic, wrongful, horrible death,” said Jeremy Saland, who represented the bus driver in the Manhattan trial.
“At the same time, it’s a high burden and a horrific standard to saddle someone with that criminal record when they weren’t criminally negligent or reckless or intentional.”