With the tragic deaths of two bicyclists in Fairfax County this year, FABB has redoubled its contacts with the Fairfax County Police Department (FCDP) in an effort to improve communications and relations between the police and the bicycling community. We were particularly interested in how the FCPD investigated the two fatal crashes and asked for representatives from the Crash Reconstruction Unit to join us at our September meeting.
We were pleased to host Lt. Jason Long, FCPD Traffic Safety Supervisor, and Det. Rodney Posey of the Crash Reconstruction Unit on September 21 to answer questions provided before the meeting about the reconstruction process. The officers were very candid, and their answers, summarized below, greatly improved our understanding of crash reconstruction’s role in legal proceedings on crashes between motorists and bicyclists.
Watch the zoom recording of the entire meeting.
The Traffic Safety Section’s Crash Reconstruction Unit has five full-time detectives plus a part-time supplemental team that augments the main unit and provides training for future unit members. In addition to spending multiple years on the supplemental team, unit members undergo specialized training to become crash reconstruction investigators. They then attend regular continuing education courses to update and gain skills.
The unit investigates all fatal crashes, crashes that result in life-threating injuries, and other serious crashes as directed. An EMS response to an FCPD patrol report on such fatal crashes triggers a reconstruction investigation. A crash involving a bicyclist that did not result in a fatality or life-threating injury would not trigger an investigation.
The investigation results in a crash analysis and report that is presented to the commonwealth attorney. The attorney uses this information to determine whether to acquire warrants as needed for additional investigation and whether to bring charges given the likelihood of a successful prosecution.
The FCPD Public Affairs Office’s initial press release, which usually occurs before the reconstruction investigation is complete, is the department’s first statement of facts. It is often limited to addressing whether speed and alcohol were factors in the crash. This information is available because speed and alcohol use usually can be determined at the scene and are the primary subjects of media questions. The names of crash victims will not be released until the next of kin is notified. Driver’s names are not released unless and until they are charged with a violation or crime.
The officers acknowledged that in motorist-bicyclist crashes, the rider is often not available or able to provide a statement while the driver usually is able to present their version of events. The unit tries to assess the motorist’s credibility and corroborate their statement with witnesses, cameras, and other available sources of information. Cameras, for example, can help determine speeds and careless driver behavior. Roadway evidence, such as tire marks/skid marks and measurement of the distance a bicyclist was thrown from the site of the impact, are parts of the analysis.
The officers explained that proving distracted driving was difficult. The FCPD needs probable cause to search cell phone records. This requires evidence that the phone was in use at the time of the crash. Even when cell phone records are acquired, proving that recorded times align from multiple sources, e.g., the motorist’s phone, traffic cameras, cyclist’s electronics, other witnesses, is nearly impossible. This adds to the difficulty in proving the motorist was texting/distracted when the crash occurred. If distraction is determined to be a factor in the crash, it will be included in the charges.
Another source of information that sometimes is used in crash reconstruction analysis is the event data recorder located in a vehicle’s airbag control module. Information varies by vehicle model and modules lack standardized connections for downloading the information. The Crash Reconstruction Unit, however, has the means to gather the available speed, throttle (accelerating or decelerating), and braking information.
The officers summarized their work by informing the meeting participants that while the crash reconstructions are used in determining whether charges are brought, the analysis and the unit members’ expert testimony is rarely admissible in Virginia criminal trials. The general rule has been that an expert witness may describe the physical evidence at an accident scene but may not synthesize that evidence to explain how the accident occurred. This is a result of Virginia’s laws and Virginia Supreme Court precedent. (If interested, see a detailed discussion in the Journal of Civil Litigation.) The Virginia General Assembly has tried but failed to pass bills to allow accident reconstruction evidence to become more readily accepted.
The officers then answered questions from the meeting participants. These and potential advocacy opportunities will be discussed in a future FABB blog post. You can watch this discussion now at our zoom recording of the meeting.
FABB greatly appreciates Lt. Long’s and Det. Posey’s participation in our meeting as well as their frankness in discussing their work and its impact.
Interested in working with FABB on traffic safety issues. Contact us at [email protected].