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Column  |  Howard Troxler

What constitutes 'careless' driving vs. homicide?

How can a man with 21 previous traffic citations in Pinellas County drive onto a sidewalk in St. Pete Beach, kill a 33-year-old mother of three and be cited for nothing more than careless driving?

Easy to ask. Hard to answer.

The case is heartbreaking and maddening. Seth and Heather Whalley were visiting family here April 10, walking down Blind Pass Road.

Aaron Scott Rimar, 35, was driving a van down the road when he veered onto the sidewalk and hit them both. Seth lived. Heather died of head injuries two days later.

As my colleague Leonora LaPeter Anton reports, Rimar had a long history that included, among other things, speeding, running a stop sign and driving on the wrong side of a divided highway.

Yet the Pinellas-Pasco State Attorney's Office concluded that Rimar could not be charged. St. Pete Beach police could cite Rimar only for careless driving, with a maximum fine of $500 and 120 hours of community service.

I talked to lawyers and spent some time poring over the statutes. I can see how the prosecutors reached this decision. I don't like it, but I see it.

Consider what seems to be the logical charge of vehicular homicide, a second-degree felony with a maximum sentence of 15 years. The crime is defined as a death caused by:

operation of a motor vehicle … in a reckless manner likely to cause the death of, or great bodily harm to, another.

But "reckless" means more than just being "careless." Dropping your cell phone and having a wreck is "careless." Driving 75 mph in a posted school zone is "reckless."

"You have to show a willful, wanton, reckless disregard for the safety of others on the road," explains Denis de Vlaming, a well-known Pinellas defense attorney unconnected to the case.

Rimar's statement was that he looked down at the briefcase on his seat, and the next thing he was on the sidewalk. By itself, this is a careless act. There was no evidence that he was speeding, driving wildly or recklessly.

There was a complicating factor — Rimar had at least four prescription drugs in his system. But the evidence must show he was impaired, and doctors consulted by prosecutors said the drugs were within acceptable levels.

I talked to Tom Carey, another well-known Pinellas lawyer, who is representing the Whalley family. Carey argues that jurors could infer recklessness from the very nature of the accident.

"My argument is, if he had drugs in his system, he goes up on the sidewalk, goes on the sidewalk for some distance — why is that not circumstantial evidence for reckless driving?" Carey asked.

But prosecutors concluded that, no matter Rimar's record, they could not prove recklessness in this case. I talked to them as well. They don't like it either.

I've tried in my mind to make a case for a new law — a law saying that habitually dangerous drivers who kill or injure someone, even in an accident, should go to prison. After all, we have "three strikes" rules for felons.

But the three-strikes felon has unquestionably committed another crime. My law would criminalize what otherwise would be a pure accident if it happened to a "good" driver. It probably wouldn't stand up in court.

So, tell me, what's the way out? I understand how they got to this decision. But it is morally unsatisfying.

What constitutes 'careless' driving vs. homicide? 11/12/08 [Last modified: Saturday, November 15, 2008 7:26pm]
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