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Appeals Court Upholds Vision Zero Law Allowing Reckless Drivers To Be Charged With Misdemeanors


A state appeals court has ruled that a critical portion of the Right of Way Law, which made failure to yield to pedestrians or cyclists a misdemeanor offense, is constitutional.

The First Department of the Appellate Division delivered the decision earlier this week, in response to a challenge from Carlos Torres, the dump truck driver who struck and killed Elsie Marie Lachowyn while she was walking with the light in a Manhattan crosswalk in 2016. Under section 19-190(b) of the newly-enacted Right of Way Law, prosecutors charged Torres with “failure to exercise due care,” a misdemeanor carrying up to 30 days in jail in incidents where pedestrians or cyclists suffer physical injury or death.

Torres initially pled guilty to the charge, and was hit with a $750 fine and a six month license suspension, and ordered to take a driving class. But he later appealed the decision, claiming that not exercising “due care” was a civil, rather than criminal, negligence standard.

In a 3-0 decision, the judges rejected that argument, becoming the first appellate court to rule favorably on the constitutionality of 19-190(b). Previous challenges in lower courts had found the law unconstitutional, with multiple judges ruling that intentionality or awareness had to be proven in order for a criminal penalty to be imposed.

“It’s a very big deal,” said Daniel Flanzig, an attorney who frequently represents cyclists. “Especially because there’s been inconsistent rulings in the lower courts on the constitutionality of this.”

Flanzig said he hoped the decision would send a message to the city’s district attorneys to be more aggressive in prosecuting drivers who kill or injure pedestrians and cyclists. He singled out Brooklyn D.A. Eric Gonzalez and Acting Queens D.A. John Ryan for “lacking in their willingness” to bring the misdemeanor charge.

The Brooklyn prosecutor in particular has come under fire in recent months, as the borough has seen a rash of cyclist deaths; of the 15 deaths in Brooklyn this year, drivers have been charged in just two instances.

A spokesperson for Gonzalez’s office told Gothamist, “We aggressively investigate all fatalities and bring charges whenever the facts and the law allow us.”

According to data provided by the NYPD, 183 drivers have been arrested on the misdemeanor 19-190 charge since the beginning of 2015. The number of convictions is likely much lower, though those figures were not immediately available.

Data has shown that police are far more likely to issue summonses, rather than criminal charges, to careless drivers, which often end up getting dismissed in administrative court.

“The City’s Right of Way Law helps save lives by imposing clear consequences on careless drivers who fail to yield the right of way,” said Acting Corporation Counsel Georgia Pestana in a statement. “The law makes all New Yorkers safer, and we’re pleased the Court found the law was a proper exercise of the Council’s powers.”

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