Charges reinstated against distracted driver
Toolbox
By Susan Smallheer
Rutland Herald - Published: August 24, 2010
MONTPELIER — The state’s highest court has reinstated criminal charges against a Massachusetts woman who struck and critically injured a bicyclist while fiddling with her car’s GPS looking for a place to eat.
Cherish A. Carlin, now 20, of Springfield, Mass., will now face trial for one felony and one misdemeanor charge stemming from the April 18, 2009, crash, said her attorney, Theodore Kramer of Brattleboro.
Kramer said that Carlin’s motion to dismiss stemmed from a belief that her momentary distraction lasting two seconds, before she hit bicyclist Bradford Greene, 71, a local college professor, did not merit the charge.
Greene received severe, life-threatening injuries and was airlifted to Baystate Medical Center after the accident. Kramer said that Greene had returned to his home and was recovering, according to his latest information. According to earlier accounts, Greene had severe head, chest, rib and rib injuries and received 13 blood transfusions in the days after the accident.
Kramer said that Carlin had no recourse from the Vermont Supreme Court decision, and she now would stand trial on charges of gross negligent operation, serious injury resulting, and careless and negligent driving.
Kramer had successfully argued that Carlin’s actions did not represent gross negligence, but a “momentary distraction” that did not rise to the level of felonious behavior.
According to court records, Carlin, who was 19 at the time of the accident, struck Greene as he rode along Route 5 in Dummerston near the Colonel’s Cabin, a local bar. The accident occurred in the afternoon.
Carlin told police that she was using her GPS in her car to find a place to eat, and that her gaze had left the road momentarily.
The high court ordered the reinstatement of the criminal charges against Carlin, overturning decisions by two local trial judges, Karen Carroll and Katherine Hayes, who both ruled there wasn’t enough evidence to bring the case to trial.
David Tartter, the assistant attorney general who handled the appeal to the Vermont Supreme Court, said he had cited two Vermont criminal cases in his argument. Tartter had handled the appeal on behalf of the office of Tracy Kelly Shriver, the Windham County state’s attorney. A deputy in Shriver’s office, Scott Willison, handled the case until he transferred to the Chittenden County prosecutor’s office, Shriver said.
Tartter said the cases the high court relied on in making its decision were “fact specific” — in which both drivers struck pedestrians, in one case killing a person by the side of the road, and the other seriously injuring someone in a crosswalk.
Carroll first heard Carlin’s motion to dismiss. When Carroll granted the motion, the state’s attorney’s office asked for reconsideration. Hayes held an evidentiary hearing on the case and ultimately agreed with Carroll’s decision. Tartter, the assistant attorney general, appealed.
The high court, in its decision issued late last week, noted that Vermont statutes define gross negligence as “conduct with involves a gross deviation from the care that a reasonable person would have exercised in that situation.”
Negligence, the court noted, is a “breach of the duty to exercise ordinary care.”
“In distinguishing the two, we have said that gross negligence ‘amounts to a failure to exercise even a slight degree of care,’ and that it requires ‘more than an error of judgment, momentary inattention or loss of presence of mind,’” the court ruled.
The state’s high court noted that the state had presented more evidence to support the charge of gross negligence that went beyond what was described as Carlin’s “two seconds of inattention.”
“Defendant here was driving on a straight stretch of road in which the bicyclist would have been clearly visible prior to the accident,” according to the decision of all five justices.
The essential question for the jury to decide, the high court ruled, was whether Carlin’s decision to take her eyes off the road “when the risk of danger was heightened because of the presence of a bicyclist amounted to ‘a gross deviation from the care that a reasonable person would have exercised in that situation.’”
“It was, therefore, error for the trial court to dismiss the charge,” the justices wrote, adding it was best for the jury, and not the trial judge, to “weigh the facts and render a decision.”
Shriver said that Greene’s wife Eva had pushed hard to have the criminal charges reinstated, citing the devastating injuries her husband experienced. Eva Greene had testified before the Vermont Legislature earlier this year, requesting a ban on all drivers from using handheld electronic devices. A bill banning texting while driving was approved.
susan.smallheer@rutland herald.com
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