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Old 05-31-2009, 03:34 PM   #1
fatlazyless
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Default ...crossing the center line

Apparently, crossing the center lane with your car and killing three motorcyclists and badly injuring a forth does not meet the NH standard for criminal negligence. On Friday, May 29, the 5-member NH Supreme Court by a decision of three to one overturned a twelve year sentence of three counts of criminal negligence against a 20-something year old Thornton man who struck two Harley Davidsons carrying two married couples on the now infamous Route 49 S-curve in Thornton. Three small white crosses situated on the grass by the side of the road continue to memorialize the event to this day.

"At most, the evidence shows that his car inexplicably drifted over the double yellow line and into oncoming traffic for no more than two seconds;" Justice Linda Dalianis explaining the majority's position.

I'm no attorney myself, just an interested NH driver who is always very carefull to keep my car within its lane, between the lines, yellow or white, where it is supposed to be. Everyone has seen center line violations by other cars, at one time or another. It's unfortunately not too uncommon.

This terrible accident which killed three 50-something year olds, and badly injured a forth; two husband and wife couples, riding their Harleys from Indiana for 'bike week' in June 2006 may shed a little bit of light on how New Hampshire differentiates between being criminally negligent as opposed to being only civilly negligent. It seems like it is a grey area, but if alcohol or drugs are detected in the driver, that tends to automatically increase the legal sentence to a level of criminal negligence.

Maybe someone can provide a good working link to the full article which was in both the Citizen and the Union Leader, yesterday and today?
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Old 05-31-2009, 04:34 PM   #2
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Sounds like a democratic leaning, liberal, legislating from the bench court... but that is just my political view... YMMV
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Old 05-31-2009, 04:57 PM   #3
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Originally Posted by fatlazyless View Post
Maybe someone can provide a good working link to the full article which was in both the Citizen and the Union Leader, yesterday and today?
Here's the Citizen article. Haven't found the one in the Union Leader...print is too small for the old eyes.
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Old 05-31-2009, 05:02 PM   #4
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Sounds like a democratic leaning, liberal, legislating from the bench court... but that is just my political view... YMMV
Not necessarily. This Democrat leaning, bleeding-heart liberal is with the dissenting judge.
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Old 05-31-2009, 05:36 PM   #5
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I'm not a biker and I'm not sure where I stand with this decision but I do have a comment that maybe some bikers on here could comment on.

I've heard that bikers should treat the yellow line as if it were radioactive meaning stay as far away from it as possible and yet, I see bikes on top of that line all the time. I don't get it and I am certainly not trying to put any blame on those people bikers that were hit but, does it seem like bikers hug the center of the road?

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Old 05-31-2009, 07:55 PM   #6
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I ride a Harley. The center line means the same thing to any driver whether they ride a bike or drive a car. I suppose the reality is that if a driver of a car crosses that center line by accident, they won't be as hurt as a bike that crosses it. Unfortunately if the car was only over the line for a couple of seconds, the bikes didn't have much time to avoid the accident. By the way what if instead of 2 motorcycles, the driver crossed the lined and hit a Volkswagen head on and killed the mother and her 3 children?
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Old 06-01-2009, 08:27 AM   #7
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Got to wonder if it had been a 18 wheel, tractor trailer crossing the line for two seconds, would Justice Dalianis excuse the driver's cross over as just being for some inexplicable reason. Truck drivers all know to stay in their lane, if they want to keep driving a truck for a living.

The speed limit there on that stretch of Route 49 with the S-curve is 40mph, and it's a fairly tight S-curve with single lanes and trees on both sides so you cannot see what's coming, and that's a situation where drivers would be strongly motivated to have good lane control.
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Old 06-06-2009, 08:00 AM   #8
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Default Many ride too close

I have noted that many riders are too close to the center line, I never understood it (even my riding partner). I am not saying that these folks were culpable or doing that, just an observation.
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Old 06-06-2009, 11:43 PM   #9
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Lightbulb Common Misconception

I do believe that the concept of negligence itself is a tort only and therefore is civil. What I'm saying is there is no actual "criminal negligence". Negligence is a civil issue, not a criminal one. Atleast that's what I was taught in college where I minored in paralegal studies. So although it doesn't excuse this person's behavior or make it right, it is not a crime to be negligent. Although criminal charges have been overturned as a result of the appeals process the Defendant can still be sued civily by the victim's family members and be held accountable monetarily. Also, when the Defendant and his/her lawyer appeal to a higher Court the basis of the lawyer submits what is called an appellate brief. Basically a well organized argument summarily requesting that the conviction be overturned...however the appellate brief must clearly demonstrate that the former presiding Justice made an error of law or did not follow precedent when making their decision. The appellate Court cannot overturn the decision because the individual or group of Justice's feel or personally believe that crossing the center line and/or taking a life or several as in this case does not constitute criminal negligence. If case law however did state that crossing the center line constitutes criminal negligence, then the initial Justice ruled correctly as the Court is required to apply precedent. However we then again go back to my first point...I do believe it is not a crime to be negligent, it is a tort. My .02 anyway. It's still a tragedy that these people lost their lives regardless
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Old 06-07-2009, 06:02 AM   #10
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Post Criminal negligence...

Quote:
Originally Posted by Nadia View Post
...I do believe that the concept of negligence itself is a tort only and therefore is civil. What I'm saying is there is no actual "criminal negligence". Negligence is a civil issue, not a criminal one...(
Negligence in New Hampshire is indeed, under certain circumstances, a criminal element in the State of New Hampshire and clearly defined under our State's criminal code.

From RSA 626:2 (Criminal Code General Principals):

...(d) ""Negligently.'' A person acts negligently with respect to a material element of an offense when he fails to become aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that his failure to become aware of it constitutes a gross deviation from the conduct that a reasonable person would observe in the situation...


Of particular relevance to this discussion would be the crime of Negligent Homicide:

630:3 Negligent Homicide.
I. A person is guilty of a class B felony when he causes the death of another negligently.
II. A person is guilty of a class A felony when in consequence of being under the influence of intoxicating liquor or a controlled drug or any combination of intoxicating liquor and controlled drug while operating a propelled vehicle, as defined in RSA 637:9, III or a boat as defined in RSA 265-A:1, II, he or she causes the death of another.
III. In addition to any other penalty imposed, if the death of another person resulted from the negligent driving of a motor vehicle, the court may revoke the license or driving privilege of the convicted person for up to 7 years. In cases where the person is convicted under paragraph II, the court shall revoke the license or driving privilege of the convicted person indefinitely and the person shall not petition for eligibility to reapply for a driver's license for at least 7 years. In a case in which alcohol was involved, the court may also require that the convicted person shall not have a license to drive reinstated until after the division of motor vehicles receives certification of installation of an ignition interlock device as described in RSA 265-A:36, which shall remain in place for a period not to exceed 5 years.


So indeed negligence is clearly an element on this State's Criminal Code, as well as it's clearly civil tort aspects.
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Old 06-07-2009, 07:12 AM   #11
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Default I've noticed it also..

Quote:
Originally Posted by VitaBene View Post
I have noted that many riders are too close to the center line, I never understood it (even my riding partner). I am not saying that these folks were culpable or doing that, just an observation.
I've never been a "bike rider", but I have asked several folks that are why they seem to drive so close to the centerline. They tell me it was the effect of the "crown" of the road being the path that contained the least residual oil drippings.

Here is a the results of a Google of the question.

http://www.drivefriendlyschool.com/M...ampletest.html

See the "correct" answer to question #20 at the bottom of the sample test. Is it a "taught" behavior?
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Old 06-07-2009, 08:37 PM   #12
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Smile Thank You

Thanks Skip for posting that and straightening me out! I need to dust my books off and bury my head in them So I guess that part of my response holds no merit...my second theory could hold some water however.

SteveA I have heard that about the oil as well.

Still a shame.
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Old 06-08-2009, 05:09 AM   #13
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Thumbs up Civil versus Criminal proceedings...

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...my second theory could hold some water however...
Totally concur with the second part of your post...have seen it occur on a number of occassions. Even OJ paid a penalty in civil court after beating charges in criminal court!
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Old 06-08-2009, 06:43 AM   #14
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In hope of demonstrating a driver had been negligent to a jury of 12, in a case where no alcohol or drugs were involved, couldn't the prosecution take a look at the driver's driving history? Negligence is a lack of concern and responsibilty which translates to how safely you drive and could be documented by any prior violations.

So, I wonder if the past driving record is presented for the jury or judge to consider in determining negligence? I can remember reading that the 20-something male driver did have a lengthy list of prior driving violations. If someone just has a bad-no care attitude, it would seem to me they do not need to be legally drunk to be a negligent driver.
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Old 06-08-2009, 09:12 AM   #15
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Evidence of prior bad acts is usually not admissable to show guilt. It can be admitted to impeach the testimony of the defendant though. As an example if they claim they are excellent drivers. If this evidence was admitted but not to impeach testimony, it would be excellent grounds for reversal on appeal.
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Old 06-08-2009, 11:54 AM   #16
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Quote:
Originally Posted by SteveA View Post
I've never been a "bike rider", but I have asked several folks that are why they seem to drive so close to the centerline. They tell me it was the effect of the "crown" of the road being the path that contained the least residual oil drippings.

Here is a the results of a Google of the question.

http://www.drivefriendlyschool.com/M...ampletest.html

See the "correct" answer to question #20 at the bottom of the sample test. Is it a "taught" behavior?
If that is a taught behavior, then that is downright reckless IMO. I am a motorcycle rider as well. My belief is that there are three danger zones:
-the far right of the lane where there may be sand or other debris
-the far left of the lane where one is more likely to encounter an oncoming vehicle, or debris in the center of the road
-the very center of the lane where it is slick from oil drippings

That leaves 2 viable and safe places, and those are both the left and right wheel "lanes". That is where I ride. These guys that insist on riding the center line are asking for it IMO.
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Old 06-08-2009, 01:41 PM   #17
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Evidence of prior bad acts is usually not admissable to show guilt. It can be admitted to impeach the testimony of the defendant though. As an example if they claim they are excellent drivers. If this evidence was admitted but not to impeach testimony, it would be excellent grounds for reversal on appeal.
I second that. It depends on the nature of the case as to whether or not past behaviors or incidents are admissable as evidence. In example one of my girlfriend's in highschool was sexually assaulted by another peer at a school field trip/camp-out type event. When she was fifteen she was sexually assaulted by her much older brother-in-law and ended up pregnant, raising the child normally. She did attempt to press charges on her brother-in-law but he was aquitted for reasons I do not remember. She feared pressing charges when it happened again in highschool in the event that the Defendant's lawyer would attempt to humiliate her, and make her out to look like someone who always "cries rape" for attention. She was concerned that the Court would not believe her or make it look like she brought it onto herself since it was the second time. Come to find out New Hampshire law states no matter how many times a woman has brought charges against other men for rape; or felonious sexual assault as the crime is called in this state, this is not admissable evidence for the defense to use against her. She did succesfully bring charges against the peer but being a minor he basically got a slap on the wrist, which was the wrong move to make. Turns out the Defendant ended up back in Court six years later as an adult for charges that he was again convicted of; repeated molestation of his own sister

When waiting in Laconia District Court for your own case to be heard you end up with a front row seat to other cases which can vary from traffic violations to civil lawsuits up to $5,000. I remember not too long ago waiting while several inmate's stood trial for various offenses. The Prosecutor did rattle off the entirecriminal records of several Defendant's when it came time to set bail condition's for these people, even if their prior offenses had no relation whatsoever the the matter at hand, so...
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Old 06-08-2009, 09:33 PM   #18
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You're right, evidence of prior bad acts is admissable during the penalty phase of a trial.
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Old 07-13-2010, 06:16 PM   #19
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Angry Shepard arrested again in Gilford

WMUR reports that Shepard has been arrested once again, and sports an extensive history of serious motor vehicle convictions.

Story is located HERE.
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Old 08-24-2011, 12:14 PM   #20
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http://www.unionleader.com/article/2...WS03/110829939

Look who's in the news concerning neighborhoods in Laconia!
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Old 08-24-2011, 01:46 PM   #21
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Good old supreme court. To bad if only a partial jury could rule the same way as old people in the supreme court do.
And they are the best!
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Old 08-24-2011, 05:14 PM   #22
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Yes, the three small white crosses are still there today, on Rt 49-Thornton, at the S-curve, and probably very close to where the head-on collision actually took place. The three crosses are about 30" high, and constructed with 1" od pvc pipe and fittings, color white, and look to be the original crosses placed there sometime back maybe around June Bike Week, 2006. It looks like each cross had a person's name, written by hand in black magic marker, up & down on the vertical section of each cross, except the five years of outdoor weather exposure has mostly erased the names away, so the three names are not readable.
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Old 08-24-2011, 06:24 PM   #23
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Originally Posted by fatlazyless View Post
http://www.unionleader.com/article/2...WS03/110829939

Look who's in the news concerning neighborhoods in Laconia!
That Shepard fella seems like a Real Upstanding citizen. NOT !!!
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Old 08-24-2011, 08:09 PM   #24
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Default may not be true

I believe the whole thing about drippings is out dated. Roads are repaved on a regular basis now and this has taken care of a lot of that.
My wife and I have both spent time on our bikes looking for roads that have oil stains down the middle. To date we have found none having ridden in this area, to Woodstock, and on over to Conway and back down to Meredith.
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Old 08-24-2011, 09:37 PM   #25
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With the vehicles of today and the asphalt of today, oil drippings are very rarely an issue on any roadways. I still see riders on the yellow line or on the wrong side of the yellow line. Why, I do not know.

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Old 08-27-2011, 08:54 AM   #26
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Default "Burglar supect is familiar to law enforcement"

There's an excellent long and detailed Bea Lewis report in the Thursday, August 25, Laconia Citizen on page A5. To read it, google "Burglary suspect is familiar to law enforcement" Bea Lewis, Laconia Citizen!

Here a few different sentences and paragraphs that I cherry-picked:

"Attorney James Moir, who represented Shepard, had initially asked the trial court to overturn the jury's verdict claiming the evidence proved that driver inattention - and not alcohol, drugs, speed, mechanical defect or the weather - played a role in the crash."

"Motorcyclists Gary and Joyce Varden and Claudia Huffman, who were vacationing from Indiana and attending Motorcycle Week, all died in the June 11, 2006 crash in Thornton."

"Just before the collision, Shepard's car headed toward the center double yellow line ...."

"In overturning the conviction, the Supreme Court found there was no evidence that Shepard had consumed any alcohol or drugs before driving. Nor was there any evidence that he was speeding."

"At most, the evidence shows that his car inexplicably drifted over the double yellow line and into oncoming traffic for no more than two seconds."

"Chief Justice John Broderick dissented."
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Old 08-27-2011, 09:42 AM   #27
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Quote:
Originally Posted by Resident 2B View Post
With the vehicles of today and the asphalt of today, oil drippings are very rarely an issue on any roadways. I still see riders on the yellow line or on the wrong side of the yellow line. Why, I do not know.

R2B
As a rider who has done a great deal of riding over the last 30+ years, the only place that oil is a major concern for motorcyclists today are metal surfaces and toll booths after or during a rain. At toll booths cars and trucks are centered in a tight spot, then stop and go. After a rain these spots can be slick.

I doubt too many long-time riders with serious miles behind them hug either side of the road - that's simply not smart.
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Old 08-27-2011, 01:50 PM   #28
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How far does one travel for 2 seconds when traveling 40 MPH.. Anyone want to try for 3 seconds?
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Old 08-27-2011, 11:20 PM   #29
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Quote:
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"At most, the evidence shows that his car inexplicably drifted over the double yellow line and into oncoming traffic for no more than two seconds."
No more than two seconds... too bad it only took no more than two seconds to kill three people.

And how does a car "inexplicably" drift over the double yellow line? How did bad driving become inexplicable?
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