If you’ll allow it for a moment, let’s make some assumptions about you. Let’s suppose you’re committed to never texting and driving like any decent person should be. You go hands-free to make calls while in the car. Texts go unreturned until you’re safely stopped. And driving while surfing the web, like we’ve all seen so many drivers do? Never.
But, being honest here, there are times.
We’ve all done it. The navigation running on your phone gets wonky, and you just need to take a quick look. Your phone won’t stop buzzing and you pick it up just to check who’s incessantly calling. A text comes over from Mom reading “URGENT.” It’ll just take a second. Just one second.
It’s a terrible scenario—for everyone involved, really. But you will likely face no other consequence than a guilty conscience. Because in Florida, it’s generally not considered a crime to kill a cyclist with your car, and if it is, you’ll likely walk anyway. It has happened right here in Broward County more times than anybody has counted.
Perhaps the best-known, the most infamous, example of this happened on Thanksgiving weekend in 2018. A group of cyclists were out for a Sunday morning cruise in Davie when a Honda Fit plowed straight into them.
The force of their bodies was enough to smash in the windshield and roof as if somebody had dropped a boulder on it. Many of the cyclists, including a 14-year-old boy, had serious injuries. Their bikes and bodies were scattered on State Road 84. An off-duty paramedic happened to be nearby, and he began triage, going from victim to victim like a wartime medic. Two were killed: 53-year-old Denise Marsh and 62-year-old Carlos Rodriguez, who was riding in the back to help slower cyclists.
She didn’t return a phone call for this article, but Local 10 News reported that she offered a response off camera a day later, before a second cyclist died. “I am truly sorry that any of my actions led to the tragic events yesterday. My wholehearted condolence to Denise Marsh and her family. No words can express how sorry I am about your loss,” she said. “Please know that if I could trade places with Mrs. Marsh, I would.”
Police say Vanderweit turned over her phone after the crash and wasn’t speeding. Her excuse of a distraction was enough to convince police that Vanderweit did nothing wrong, and under Florida law, experts say, that seems to have been the correct conclusion. In Florida, typically a driver who kills a cyclist in a crash has not committed a crime.
It’s a fact that frustrates the many lawyers in Florida who specialize in bicycle crashes. Among them is George Palaidis, a Fort Lauderdale attorney and avid cyclist.
“The short answer is that there really isn’t a law out there to give the officer the ability to charge a motorist for killing a cyclist if it was a mistake,” Palaidis says.
It’s one thing if the driver was drunk or leaves the scene of the crash—those things are codified in Florida law as crimes. But accidentally killing a cyclist simply isn’t a criminal infraction.
The Florida laws that police might use to charge a motorist who kills a cyclist offer little help. Florida’s vehicular homicide law requires proof that the driver had a “reckless disregard” for the safety of others. Manslaughter is essentially killing someone without legal justification, but convicting a driver of killing a cyclist would require prosecutors proving the driver had culpable negligence, meaning a reckless disregard for human life, Palaidis says. As an example, cleaning a loaded gun in the direction of someone that then goes off and kills the person is culpable negligence, because it’s a “gross and flagrant” disregard for human life. But even if the driver was texting away with both thumbs as they killed a cyclist, prosecutors would need eye witnesses and cell phone records and maybe a confession to prove a disregard for the safety of others or culpable negligence. Instead, police almost always defer to the motorist’s excuses.
– George Palaidis
This happens even as the popularity of cycling in South Florida grows exponentially. In Fort Lauderdale alone, there are organized group rides every day of the week, from Monday-night rides between breweries to Sunday morning zips up A1A. The largest of them is the monthly Critical Mass, in which dozens, sometimes hundreds, of cyclists take up entire lanes of traffic to make a point that drivers ought to share the road. The Critical Mass riders will often point out the Florida law gives bikes the same rights to a lane of traffic as any other vehicle.
With the number of bike riders increasing, so have collisions with cars. Year after year, Florida leads the country in bicycle deaths with 125 per year by last count. That’s nearly six cycling fatalities per every million residents—twice the national average.
It’s typically Miami-Dade or Broward that leads the state in bike fatalities. Taking population into account, that makes Broward the most-deadly county in the state for bike deaths. In Fort Lauderdale alone, four cyclists died in crashes last year, and figuring in population, that puts our city in the top 10 for the most cycling deaths per capita in the nation. In those four cycling deaths, not one of the drivers faced criminal charges.
Can this change? Some people are working on just that.
After the death of the two cyclists after Thanksgiving in 2018, cyclists gathered for a memorial and met to talk about what they could do to make sure it would never happen again. They quickly figured out that, under the current law, there isn’t much they can do.
Arnie Prieto is one of the organizers of that Sunday morning ride, put together by a group called Cycling Family Broward. Prieto, who luckily wasn’t there that morning, says part of the issue is the way police often write crash reports, assigning no blame to the driver. “They don’t give the chance to the cyclist,” Prieto says. “They don’t give the cyclist and their family the chance to get in a court of law and ask who’s at fault.”
The only solution Prieto and other Broward cyclists found was one that would offer them retribution, but no real protection. “We have asked everyone to arm themselves with cameras on the front and back of the bike,” Prieto says. It might not keep them safe, but if they’re killed, Prieto says, at least there will be evidence of how it happened.
“People are fearful of riding on the road in Broward County anymore,” Prieto says. “It isn’t right that cyclists have to fear for their lives.”
This could change if cycling advocates have their way. This year, the Florida Senate considered a new statute called the Vulnerable Road User Act. Killing a cyclist would revoke the driver’s license and require the driver to pay a fine, serve time on house arrest and attend a driver improvement course.
In the Florida House, lawmakers considered a different version that would have made killing a cyclist a second-degree misdemeanor. The penalty would’ve been a year in jail maximum, although more likely a month or two behind bars. While that doesn’t seem like a lot, supporters say perhaps adding a penalty for killing a cyclist would make drivers more careful.
Ten states already have similar laws. Typically called Vulnerable Road User (VRU) laws, they offer some protections to cyclists, pedestrians and motorcyclists struck by motorists, assigning minimum fines and sometimes jail time if the driver is at fault. It’s rare for such a thing to happen. A study by the League of American Bicyclists found that just 12 percent of drivers responsible for cycling deaths are punished.
While the Florida bill didn’t make it out of subcommittee, the fact that it was considered has encouraged cycling advocates that perhaps change is possible. It wouldn’t be the first time a law would get passed because of tragedy. Florida’s ban on texting and driving, for instance, became law in part because of the advocacy of former state Rep. Irving Slosberg of Boca Raton, whose daughter was killed in a traffic crash. That example encourages cycling advocates that laws can change based on stories of tragedies, Palaidis says.
“People are fearful of riding on the road in Broward County anymore.It isn’t right that cyclists have to fear for their lives.”
– Arnie Prieto
But not everyone, even some cyclists, believes accidentally killing a cyclist should be considered a crime. Among them is Robert Pinkiert, an avid cyclist and attorney who lives in Davie and has regularly handled personal injury cases involving a car striking a bike. “I just don’t think it should be a crime if someone accidentally hits a cyclist,” Pinkiert says. He says it’s important to consider the driver of a car that plowed into a crowd of people protesting in 2017 in Charlottesville, Virginia. Undoubtedly that was a deliberate act, a criminal one. But it’s wrong, he says, to consider the accidental killing of a cyclist in the same way.
Instead, Pinkiert says families of cyclists who are killed can seek retribution in civil courts. There, courts assign percentages of blame. For instance, if a cyclist is riding three abreast with other bikes and gets hit by a car, it’s likely the cyclist shares some blame. But a driver who pulls out in front of a cyclist—a common collision—might be considered the driver’s fault alone. It’s not a criminal charge, but Pinkiert says a civil judgment can at least be a way to find closure.
Meanwhile, others continue to work to change the laws to protect cyclists from being struck. Until that happens, though, it’s unlikely a motorist will be charged the next time a cyclist is killed. But that won’t stop the cycling advocates from trying.
“Look,” Palaidis says. “I’m doing this for other cyclists, but I’m also doing this for myself. I want to get home and see my wife at the end of a bike ride and not have her get a call saying I’m not coming back.”