Colorado Senate Bill 06-072 – “Increased Penalties for Careless Driving:
How a Good Bill Was Treated Badly…

Stats memo from the legislative council

In the recently adjourned 2006 Colorado legislative session, Senate Bill 72 was run out of time for further action; therefore an improvement to the existing statutes to reconcile penalties more congruent to the gravity of the act and conviction of Careless Driving resulting in Serious Bodily Injury or Death was not achieved. It is not because the bill was not “good” or not well-thought out and drafted. Nor is it because the legislation is not needed – it is. Approximately a year-and-a-half's worth of work went by the wayside in this 2006 effort. Yet the bill, which was introduced in the first week of session (January 2006), was one of the last General Assembly legislative actions of 2006. How can this be, and what happened?

In today's world, we have a driving population teeming with inconsiderate, distracted, and self-absorbed drivers. Accidents are rampant. From the beginning: what is an accident? Check it out in a dictionary – it's defined as an unforeseen, unpleasant, and unintentional happening that usually results in injury, damage, or property loss and can (and does) result from negligence. These days the word is commonly used as an excuse. Just because a person states “I didn't mean it” does not mean they should be absolved or not be fully personally responsible. The fact remains that 95% of the time a human causation factor is present. For purposes of this writing, we are concentrating on Careless Driving as the most common cause of accidents. The Colorado statutes that govern Careless Driving recognize that an unintentional act happened, however a penalty is also in order. In the cases where other people's (victim's) lives are tremendously and adversely affected, the sanction should be reflected proportionately. Let's review the Careless Driving penalties in Colorado, as they should apply to the act of causing Serious Bodily Injury or inflicting Death upon another (a Class 1 misdemeanor.) Title 42 C.R.S. (42-4-1402) is specific to the act of Careless Driving (a misdemeanor offense); 42-4-1701 is the penalty schedule and provides for a fine parameter from $100. to $1000., or from 10 days to one year imprisonment, or both, and 4 points against the license (if convicted on the original charge.) Because jail time is seldom imposed, and 4 points against a license means nothing, many people pay a discretionary fine and go on their way. Yet the aftermath remains on the victims' end as they attempt to put the pieces back together in the face of tragedy; they know the value of a life lost or of coping with debilitating injuries. The sanctions for Careless Driving pale in comparison.

Time to “level the field” a bit more: Because this lack of parity is recognized in Colorado (as well as the states throughout the country) and motorcyclists often end up on the short end of “justice”, leaders of the MRO's in this state gathered up to discuss what could be done. A couple of previous legislative efforts lacked the elements to be comprehensive across the board with effectiveness. An agreement was reached to address aspects of current statute, and a rough draft was put together. Specifically, the draft bill provided for 3 elements: 1) Mandatory license revocation upon conviction (6 months or one year depending on offense), 2) mandatory fine monies in addition to the provisions in existing statute of $500. or $1000., and 3) 50% of fine monies to be credited to a Highway Safety Signage Account (that the bill created) to fund signage reminding all road users of their obligations to be aware and share the road, as well as signs to warn of hazards. In other words, have the offenders pay for signs… The forthcoming bill applied to all road users. The bottom-line #1 goal in this attempt was to get offenders' drivers licenses, get them off the road for awhile, have them re-learn and pay to re-instate. In comparison, there are many laws on the books that provide for license revocation or suspension – many of them do not involve driving violations.

Senator Lois Tochtrop agreed to carry the bill; it was drafted by BIKEPAC, reviewed, and revised several times before introduction. During this time, as a courtesy and to solicit some feedback, the sponsor informed several law enforcement and District Attorneys groups with the bill particulars. Feedback did not suggest adverse postures though some questions came about. It was introduced in the Senate in the second week of January as Senate Bill 06-072. We have always felt it was a “tight” bill. It was assigned to perhaps the toughest committee in the legislature – Senate Judiciary. In between the time of introduction and prior to the committee hearing, the Colorado District Attorneys' Council requested a meeting with Senator Tochtrop and the bill's prime lobby (BIKEPAC & ABATE.) The senator could not attend and left the meeting up to us; the DA's wanted to deal. We met in their offices. Specifically, they were opposed to mandatory license revocations and instead proposed a “new” system of “points” – higher in scale, as follows: 6 points for Serious Bodily Injury, 8 points for Death with a 2-year probation. While we listened politely and the meeting was amicable, we refused to move from our position, whereupon we were told “We'll see what happens in committee.” So with that we had our first signal of outright opposition.

For a quick exercise to illustrate a lack of value, take out a blank piece of paper and with a pencil make 6 or 8 “dot” marks; you can call those “points” too because they're analogous to vehicle offense points – just intangibles on paper, and worthless.

The Senate Judiciary committee hearing was February 8th., Speaking first was the opposition that included both the District Attorneys Council and the Colorado Defense Bar. The hair-splitting had begun. We provided a strong contingent and presentation of commentary, statistic, and victims' testimony. The Judiciary committee generally agreed with us but also put forth four amendments that “cleaned up” some of the language and removed the license revocation aspect in favor of mandatory suspension with a probationary license. Though some things appeared distasteful at the time, after review we still had a good bill – the mandatory fines were intact, as was the signage account and driving restrictions. The bill voted out unanimously 7-0 and was referred to Appropriations. On March 3, Appropriations passed the bill out unanimously 9-0-1 because there's little-to-no state expenditure involved. Onto the Senate floor for Second Reading, but wait – the technology people in the Judicial Branch have a problem with the fine money splits as some of the language is both in dollars and percentages, and they say that it would take $80,000 appropriation to reprogram the computer system to deal with that aspect as the bill is written. A huge fiscal note like that is a sure “bill-killer.” Now we are questioning why this is coming out at this point in time, as the Judicial Branch had plenty of time to peruse the bill. So it was re-referred to the Appropriations committee with an amendment drafted to it to fully clarify the fine money splits in percentages to achieve zero expenditure. The bill waited for over a month for another turn on the committee schedule, as the session was in full throttle mode with many other bills, and also the “long bill” took precedence. On April 14, Appropriations passed the bill out again 10-0. Back to the Senate floor on April 18 & 19 and the bill passes HUGELY, 33-2. Now we are feeling pretty good about our chances in the House - we passed muster in the Senate, and very well – and that should carry over (shouldn't it?) Time now becomes a factor as only three weeks remain in the session (adjournment date of May 10.) The bill was introduced in the House on April 19, assigned to Transportation and Energy committee, and heard there on April 26- 27. Again, the District Attorneys Council and Colorado Defense Bar speak in opposition to the bill. More hair-splitting, “spin”, and deviation from the core issues. This time we had a smaller group of advocates though what they had to say should still have been powerful. However, several of our testifiers feel as if they are being “tuned out” and disrespected as legislators leave and re-enter the room, others are working their laptops, and not enough attention is being given. Rep. Mark Larson muddies the waters by bringing motorcycles and bikers into play as being exclusive to this bill (as if it was just for us and wouldn't benefit the public), then further detracts from the issue at hand by bringing up helmets and his take that non-usage contributes to the severity of injury factor in Careless Driving cases. So he is bringing the insurance industry/civil action concept of “comparative negligence” into play in a committee hearing where it has no place. That is not the issue before the committee - criminal penalties should be center-stage. The hearing continues the next day for action only, and the bill is gutted of meaning: amendments removed the Highway Safety Signage Account and shifted all fine monies to the Highway Users Tax Fund, the mandatory fines became “discretionary”, the license suspensions give way to the “point system” (like the DA's wanted so many months ago) with the exception of an offense resulting in Death, where 12 points would apply and subject the offender to a suspension hearing. The committee passed the gutted bill out 8-0-2 with one legislator not voting because he's an ABATE member – that's how far away from a “public” hearing this became convoluted. House Appropriations moved the bill on May 1 by a vote of 13-0. The House passed the bill May 5; the Senate would not concur and a conference committee was called into play on the morning of May 8 – 3 Senators, 3 House reps. (only two of each chamber attended.) The agreement reached was for the Senate version to give way except that license suspensions would be imposed for offenses resulting in Serious Bodily Injury or Death; the vote was 4-0-2. The bill was sent back to the House to concur with the agreement; in the meantime the entire legislature was looking at completing its work this very day. The bill would be back on the floor sometime this day – and we wait, and wait, and wait for House Majority Leader Alice Madden to call up the bill – she is part of the stalling process. It is now late into the evening and we are watching some sinister action taking place on the House floor in the form of Rep. Buffie McFadyen (D-Pueblo) assuming the role of “Hit Man” as she moves from legislator-to-legislator and lobbying each of them to vote against the conference committee report while lining up a few more to speak on the floor against the agreement – the same agreement that she had voted for as a member of that conference committee earlier in the day at 9:45 A.M. It is now in the 10 o'clock hour and prime sponsor Senator Lois Tochtrop walks into the House floor to see what's going on because the Senate is waiting for the bill. She walks up the right side aisle to the front and asks another legislator to motion the majority leader over; they converse and the body language says it all – this isn't good. The bill is soon called up, House sponsor Ted Harvey makes his pitch, and then the assassins take the podium and rip the Senate version of the bill. They say this is a “bad” bill yet don't offer anything substantive to back it up, just peer influence. Mark Larson blows some more smoke, then makes a motion that the House adhere to its position. The vote is taken and the bill is slayed in the House 55-8-2. The bill is then transmitted to the Senate, and as the last legislative action prior to adjournment for 2006, they vote 34-1 to adhere to their position. No agreement and it's the End of the Line…

Summary: We would like to thank the 2006 Senate for their support on the bill; also we would like to thank the following House members who “got it” by voting with us and the public: Balmer, Decker, Gardner, Harvey, May, Penry, Welker, and White.

Why did this bill not make it? The ultimate influencing opposition exists in the form of law enforcement (prosecutors), the judicial (courts), and defense attorneys. At stake is the power of the entrenched system of plea bargaining – a system created both by Prosecution and Defense so long ago – a system that they serve first and foremost to benefit expediency and simplification in case disposition at the expense of true Justice. The losers are the victims and citizens of Colorado. Stiffer penalties mean more cases potentially in the courtroom – thus more workload for prosecutors and “legal posturing” on the part of defense attorneys who seek to get their clients off the hook. This influence extended to House legislators, who trusting the input of judicial over a true understanding of the bill language, bought into their arguments that SB 72 sought an inflexible “blanket” approach. The opposition created extra time to leverage House votes, and they did. House legislators were “led by the nose” (shame on you) in comparison to their Senate counterparts.

As an informational public service, please review the following charts which are a sampling over a few years as to Careless and Reckless charges vs. convictions. The Careless conviction rates range from 19 - 25%, a dismal record of achievement (read: failure.) Who is being served? Bon Appetit…