As mentioned in a previous post, Lt. Jason Long, FCPD Traffic Safety Supervisor, and Det. Rodney Posey of the Crash Reconstruction Unit joined FABB for our September meeting to answer questions about the crash reconstruction process. The following is a summary of the question-and-answer session following their presentation.
Vulnerable Road User Law (§ 46.2-816.1.): Since July 2020 a driver in Virginia who is careless or distracted and causes harm to a vulnerable road user such as a cyclist, pedestrian, or e-scooter rider can be found guilty of a Class 1 misdemeanor and can be penalized by up to 12 months in jail and/or a $2500.00 fine. As of late September in Fairfax County, only two people had been charged under the statute and both cases were pled down to lesser charges.
- In one case involving a 12-year-old biker in a crosswalk hit by a speeding driver distracted by eating, the plea reduced the charge to improper driving, which is treated as a traffic infraction and is punishable by a fine of not more than $500 (the officers did not say what the fine was in the case).
- In the case involving the death of Ray Buza in Chantilly earlier this year, the motorist was only charged with a “failure to yield” traffic infraction and its $167 fine.
- The officers commented that reckless driving is often hard to prove. The Vulnerable Road User law lowered the threshold for charges from “willful” to “careless” but does not define the latter term, which contributes to the difficulty in proving careless behavior.
Bike- or cyclist-mounted video cameras: The officers described any available video as useful in crash reconstruction. They said that they had more experience with motorcyclists, who are “big users” of these video cameras, and that the videos were helpful in crash reconstruction and in court.
Speed as a crash factor: The unit determines the speed of the motorist at the crash site and documents it in the crash report. Speed over the posted limit is considered a crash factor, especially if the unit determines that the crash could have been avoided if the motorist were traveling at a lower speed.
Most difficult crashes to reconstruct: A hit-and-run crash is the most difficult to reconstruct. Each type of crash where everyone involved remains at the scene—head-on, rear end, and “t-bone”—presents its own challenges.
Access to crash reports: Usually, only the individuals involved in the crash can get access to the full crash report. FCPD Public Affairs releases crash report information as appropriate. The public can request and receive partial reports. Participants in the meeting suggested that, based on past attempts to acquire such reports, FCPD resists making even partial reports available.
Treatment of no crosswalk at an intersection crash site: Under the Vulnerable Road User law, the road user has to be “legally present” on the roadway to trigger the motorist’s requirement to stop or yield. “Legally present” refers to legally riding in the road or being physically in a marked crosswalk or in an unmarked crosswalk/intersection of a road with a 35-mph speed limit or less. If the road user is intoxicated, they are not “legally present.”
- Differences over the involved parties’ views of presence and “right of way” in a crash are addressed within the system as the commonwealth attorneys examine the crash report.
Contributory negligence: The Vulnerable Road User law does not address contributory negligence. To date, no case law has developed that might alter Virginia’s existing and very strict legislation. Virginia law prevents recovery of compensation for damages if an individual contributed in the slightest way to the injury they suffered in a crash.
Strava and similar activity tracking applications: FCPD will look at all data available, but the crash reconstruction unit generally has not found Strava data useful or “additive” to known factors about the crash. Lawyers in civil cases may use such information to defend against claims of contributory negligence.
Bike-bike and bike-pedestrian crashes: Because such crashes rarely involve fatal or life-threatening injuries, they don’t fall under Department of Motor Vehicle criteria of damage over $1,500 or death or major injury for a crash reconstruction investigation.
You can watch the full meeting with questions and responses here.
FABB again wants to express its appreciation to Lt. Long and Det. Posey for joining us to discuss their work and its impact.
There are many potential advocacy opportunities around crash reconstruction and vulnerable road user protection.
- Abolishing Virginia’s contributory negligence law is a longstanding effort by bicycle advocates in the commonwealth and deserves more popular support.
- Virginia needs legislation to allow crash reconstruction reports and evidence to be admissible in court.
- Full crash reports with redacted names and sensitive information should be made available to the public for use in driver and rider education.
- Legislation needs to address the difficulty in defining and proving careless behavior and distracted driving.
- Penalties for traffic violations that result in a fatality or serious injury must be increased as a deterrent to reckless driving. Sadly, in Fairfax County, the fishing without a license fine is more costly than the failure to yield fine imposed in the crash that took Ray Buza’s life.
Interested in working with FABB on traffic safety issues? Contact us at [email protected].