FABB hosted Pia Miller, Fairfax County Deputy Commonwealth’s Attorney for Community Justice, at our January meeting for a discussion of how the criminal justice system handles court cases arising out of car-bike crashes. In the aftermath of the three bicyclist fatalities in Fairfax County in 2021, FABB requested the meeting to better understand the process that resulted in plea deals in the two cases that came to the Commonwealth’s Attorney (CA) office.
Miller began by noting that she was unable to talk about specific cases, but her talk and responses to participant questions provided useful general information about the trial process. You can watch a video recording of the meeting here: https://youtu.be/Zwl0sN8v-cs
She explained her office’s scope of action and the limits on its ability to control the initial steps in bringing a case to court in Virginia’s criminal justice system. Miller pointed out that the CA office only becomes involved once a person is arraigned and decisions about the type of trial to conduct are made. She also helped the participants understand the differences between general, district, circuit, and juvenile court.
Once a case comes to the CA office, the prosecutor’s first responsibility is to meet certain legal ethical obligations. This includes determining whether the available evidence meets the burden of proof to initiate and win a prosecution. Prosecutors also have to determine if witnesses are willing or will be available to testify. They then contact the defense counsel to discuss the appropriateness of a plea deal. Based on these factors, a determination is made to either go forward with a prosecution or pursue a plea.
After this brief presentation, Miller turned to answering meeting participant questions (questions and responses have been edited for brevity and clarity).
What should bicyclists do after being involved in a crash?
Miller stated that the first action should be to call the police. The criminal track of litigation needs and starts with the initial accident report and police decision to issue a summons or take other action. In addition, the accident report is necessary for civil litigation to address damages to the bike and any medical care reimbursements.
One participant added that, based on their personal experience, it is important for riders to be persistent with the police officer on scene and the county magistrate to ensure that a summons is issued. In response to questions about officials’ knowledge of Virginia’s vulnerable road users law, Miller said that her office was familiar with the law, but she did not know why it had not been used more.
How does the CA office factor in deterrence to protect vulnerable road users in a decision to prosecute or plea? How do we use the legal system to encourage or educate people to be more responsible drivers?
Miller indicated that the office considers many factors, such as circumstances around the crash, the defendant’s criminal history, and availability of witnesses. Setting an example for others, however, is not a major factor, especially if the defendant is a first-time offender. Another factor is that in many crash cases, there usually is parallel litigation by insurance companies that affects decisions. In some instances, if a civil suit is resolved, the parties agree with the police to dismiss the charges. The CA’s office has to balance the appropriateness of seeking to jail people for mistakes versus seeking misdemeanor fines and marks on their driving record, especially for first-time offenders. Hit-and-run drivers are treated differently because of the nature of their criminal action.
How can the public access legal system information about crash cases for educational and advocacy purpose?
Miller informed the group that in most district court cases, there is no court reporter and no transcript. Only the circuit courts, as courts of record, will have a court reporter. Court hearings are open to the public. Pleas, meanwhile, are between counsels and are not part of court records.
Miller later noted that the Freedom of Information Act has a broad application and is a tool the public should try to gain access to police and crash reports. A participant added that, under Virginia law (Virginia Code § 2.2-3706.1), law-enforcement records, criminal incident information, and certain criminal investigative files related to proceedings that are not ongoing are available subject to some specific restrictions.
Does your office play any role in educating the police department about the vulnerable user statute and when to charge that versus failure to yield?
Miller said that the CA office can but has not yet conducted training on the vulnerable user statute, which would require an arrangement between the Commonwealth’s Attorney and the Fairfax County Police Department. An initial place to start would be to ensure the information is incorporated into courses at the training academy.
Could the justice system hold transportation departments responsible for bike/pedestrian crashes where infrastructure problems are at fault?
Miller answered that this would not happen in the criminal system, but it possibly could be a civil matter that would be handled at the state attorney general level.
Because harassment by drivers is a problem for bicyclists, can video of an incident help get a driver charged?
Miller agreed that providing a video to police is the first step in getting charges that can lead to a prosecution.
In a crash, if the motorist is charged with a violation of the vulnerable road use law and failure to yield, what would cause your office to agree to a plea that results in only failure to yield fine?
Miller suggested that factors vary on a case-by-case basis. She repeated that factors included the resolution of a civil trial that satisfied the victim, police officer and other witness availability for triall, and the quality of the evidence, crash report, and testimony to meet the burden of proof. She added that photos from police officer cameras are increasingly helpful in improving evidence quality.
As one participant noted, the role of the resolution of civil cases was disappointing because, regardless of the victim’s satisfaction, there was no significant penalty for a driver’s action that has broader implications for public safety and people’s willingness to rely on bicycles and walking.
In response to a closing question about her advice for advocates for bicycling safety, Miller commented that, while she didn’t want to put the onus for safety on riders, she recommended encouragement of the use of bike- or rider-mounted video cameras (for example, a GoPro camera). She explained that local police are overworked and understaffed and don’t have the resources to investigate harassment or a crash where no serious injuries or property damage occurred. She said that the video evidence helps riders to be their own advocate in the justice system. Miller added that it was important to ensure that police take the video and other information at the crash site to avoid chain of custody issues. Riders with video also can provide the information directly to magistrate’s office, which can issue citizen complaints and initiate a case. Finally, videos can help advocates in their work with county officials to address dangerous locations and infrastructure problems.
FABB is extremely grateful to Ms. Miller for meeting with us and looks forward to continued interaction with her office to ensure the safety of riders, walkers, and other vulnerable road users.