READ THIS: The LSA Gap in Florida

 

Aaron Cohen’s Law White Paper

By: L. Elijah Stiers, Esq., with the assistance of

Cynthia Morales, Esq. and Markus Wagner, Esq.

 

The Facts:

In the early morning hours of February 15, 2012, triathlete Aaron Cohen was struck by a car while cycling with his friend and training partner, Enda Walsh, in Key Biscayne, Florida.  The driver of the vehicle that struck  Aaron Cohen, Michel Traverso, fled the scene of the accident and eventually turned himself in the following day.  Aaron eventually died as a result of his injuries, leaving behind a wife and two young children. 

 

Evidence in Traverso’s prosecution later showed that he’d been at a local bar before getting behind the wheel of his car that morning, and this, combined with the fact that he fled the scene, was strong circumstantial evidence that Traverso was drunk at the time of the incident.  However prosecutors had no direct evidence that Traverso was actually intoxicated at the time his vehicle struck Aaron Cohen, which would have been necessary for a DUI manslaughter prosecution. 

 

Traverso eventually pled guilty to violating Florida’s leaving the scene of an accident (LSA) law, and was sentenced to 21 months in jail.  On the contrary, had he been convicted of DUI manslaughter, he would have been imprisoned for a minimum of 4 years. 

 

The Problem:

Under the current law in Florida, a drunk driver actually has an incentive to leave the scene of a serious accident, such as one involving death or serious injury to a pedestrian or cyclist. 

 

The Current Law:

The two applicable statutes are attached hereto and should be read in combination with this White Paper.  Florida Statute § 316.027 is the existing LSA statute, and Florida Statute § 316.193 is the existing DUI statute.  The pertinent language in both statutes has been highlighted to emphasize the following:

 

Under Florida Statute § 316.027 (LSA):

* For leaving the scene of an accident scene with injury, it is a 3rd degree felony;

* For leaving the scene of an accident which causes death, it is a 1st degree felony; 

* For leaving the scene of an accident causing death and  if found to have been driving under the influence, there is a minimum mandatory sentence of 2 years.

 

Now, under Florida Statute § 316.193 (DUI):

* For DUI plus injury to someone in an accident, it's a 3rd degree felony;

* For DUI with death it is not only a second-degree felony but also DUI manslaughter, which carries a minimum mandatory sentence of 4 years imprisonment.

 

The Punishment “Gap”:

As you see below, there is a distinct "gap" between punishment of an LSA resulting in injury or death, and DUI resulting in injury or death.

 

Crime

Penalty

Punishment

LSA + Injury  

Third Degree Felony

Level 5 offense

· Min 0 years in prison

· Max up to 5 years in prison

 

DUI + Serious Bodily Injury

Third Degree Felony

Level 5 offense

· Min 0 years in prison

· Max up to 5 years in prison

 

 

 

 

LSA + Death

First Degree Felony

Level 7 offense

 

· Min 21 months in prison

· Max up to 30 years in prison

· If DUI, minimum mandatory sentence of 2 years

DUI Manslaughter

Second Degree Felony

Level 8 offense

(Bumped up to First Degree Felony, Level 9 if fail to give information and render aid)

· Min mandatory 4 years in prison

· Max up to 15 years in prison (30 years if fail to give information and render aid)

 

As you can see, LSA with injury is actually punished the same as DUI with serious injury.  This seems counter-intuitive to the LSA law, which should encourage drivers to stop and render aid to a person. 

 

When an accident involves death, the disparity is even starker.  Under Florida’s current LSA law, there is no minimum mandatory sentence for leaving the scene of an accident with death.  In fact, there is only a mandatory minimum sentence – of 2 years – when the driver was also DUI at the time they left the scene of the accident causing death.

 

However, under DUI manslaughter, a criminal is going to prison for at least 4 years, minimum, every time


Rewarding the Drunk Driver Who Flees the Scene

This begs the question: If a drunk driver hits someone and seriously injures them – possibly even killing them – why stick around after the accident?   If the driver stays on the scene and the victim dies, the driver will be prosecuted for DUI manslaughter and will go to prison for at least 4 years. 

 

However, here are the options for the drunk driver who flees the scene:

·      Maybe get away with it completely;

·      Turn yourself in when sober the next day, getting no jail time if the victim was only injured, and likely 21 months if the victim died;

·      If you’re caught fleeing the charge and punishment will be largely the same, with a third degree felony if the victim is only injured, and a DUI manslaughter charge if the victim dies.

 

Clearly, Florida law has inadvertently incentivized leaving the scene of an accident while driving drunk.  In other words, the law actually rewards those who leave the scene! 

 

The Epidemic:

Given the rash of hit-and-run pedestrian/cyclist deaths on Florida’s streets occurring late at night or in the wee hours of the morning, during the peak hours when drunk driving occurs, it is undeniable that the word is out in Florida: if you hit someone while driving drunk, just leave the scene.  Maybe you get away with it.  Worst case scenario, you sober up, turn yourself in the next day, and get only 21 months in prison (as Michele Traverso did).

 

In 2012, the Florida Highway Patrol reported that there were 20,000 incidents of drivers leaving the scene of the crash in Miami-Dade and Broward Counties out of Florida’s total 69,994 of such incidents.  Miami-Dade County alone accounted for12,813 of these incidents – the highest in the State of Florida. Moreover, nearly 17,000 people were injured and 166 people killed across Florida in 2012 in hit-and-run accidents. 

 

Without question, leaving the scene of a crash has reached epidemic proportions in Florida, and particularly in South Florida. 

 

The Solution:

The only way to cure this epidemic is to close the punishment gap.  Stop rewarding drunk drivers who hit and kill our roadway users, and increase the penalties for LSA to put teeth behind a law that was designed to encourage motorists to stop and render aid.  Nowhere is this more necessary than in accidents involving pedestrians and cyclists, the most vulnerable users of Florida’s roadways, as accidents involving pedestrians and cyclists more often than not result in serious bodily injury or death.

 

A recent Resolution proposed by the Miami-Dade County Commission has proposed the following revisions to Florida Statute § 316.027:

·      LSA with injury – Second Degree Felony with a Minimum Mandatory Sentence of 7 years

·      LSA with death – A Minimum Mandatory Sentence of 10 years[1]

 

We believe that this is a splendid effort by the Miami-Dade County Commission and we applaud their recognition of this important issue and swift steps to address same.

 

Other states, such as Oregon, New York, and Delaware, have passed special laws protecting “vulnerable users” of their roadways – such as cyclists, pedestrians, motorcycle riders, first responders, construction workers, etc. – and added penalties for drivers who injure or kill said vulnerable users. 

 

The goal of these laws is not to criminalize motorists who hit these persons, oftentimes inadvertently, but rather to make sure that motorists recognize the disastrous results of striking a vulnerable roadway user with a 2,000+ pound automobile driving at high rates of speed.  It is critically important for a driver to stop and render aid to these vulnerable roadway users in the event of a crash.  In so doing, these laws add another level of protection for vulnerable roadway users like Aaron Cohen to protect them from a hit-and-run driver.

 

Accordingly, our recommendations for addressing this problem are as follows:

  • Imposes a minimum mandatory sentence of four(4) years for LSA that results in death;

  • Increases the existing minimum mandatory sentence from two(2) years to four(4) years for LSA with DUI that results in death;

  • Defines "Vulnerable Road User" (VRU).  The duty to render aid to these persons in a crash is critical.  This law would protect not just cyclists and pedestrians, but also motorcyclists, highway workers, first responders, police officers, and construction workers.

  • Creates a VRU enhancer in the criminal punishment code (Level 5 to Level 6 for LSA/injury when victim is a VRU; Level 6 to Level  7 for LSA/serious injury when victim is a VRU; Level 7 to Level 8 for LSA/death when victim is a VRU).

  • Requires a 3-year revocation of the offender's driver's license and prior to reinstatement, a driver's education course on the rights of VRUs. 

   

We owe it to Aaron Cohen, and to the hundreds of other Floridians who have been killed in hit-and-run accidents – many involving drunk drivers – to fix this problem now

 


[1] The Resolution also asked that the Minimum Mandatory Sentence for LSA with DUI resulting in death be increased to 10 years, but this is superfluous as the law, if changed as proposed, would already punish LSA with death at a Minimum Mandatory Sentence of 10 years.