Archive for Wednesday, October 17, 2007

Parents urge changes in law

Vehicular homicide statte criticized

October 17, 2007

Topeka -- Dennis and Denise Bixby, of Tonganoxie, are on a mission.

But it's not for them, they said. It's so someone in the future doesn't see a loved one killed in a traffic accident, and the person responsible walk away with a $170 fine.

"Dads aren't supposed to retire from being dads. I unfortunately had to. My wife had to retire from being a mom. We've got nothing better to do but to hang around the Statehouse and get this thing changed," Dennis Bixby said.

The Bixbys and others testified Thursday to a House-Senate committee, urging legislators to tighten laws concerning vehicular homicide.

Their 19-year-old daughter Amanda Bixby was killed by Ricardo Flores on Feb. 14 when Flores ran a stop sign and hit Bixby's car and another vehicle on U.S. Highway 24-40 just west of Basehor. Amanda Bixby died at the scene, and 16-year-old Katlynn Witt was seriously injured in the other vehicle hit by Flores.

Officers initially cited Flores, of Lansing, for vehicular homicide, failure to yield and driving without a license. Under law, vehicular homicide is a Class A misdemeanor carrying a maximum sentence of one year in jail and a $2,500 fine.

But shortly afterward, Leavenworth County Attorney Frank Kohl refused to pursue vehicular homicide charges against Flores.

Kohl said a 2002 Kansas Supreme Court ruling in State of Kansas v. Bala Krovvidi held that the mere fact that a driver ran a red light or a stop sign did not satisfy the legal elements required for a vehicular homicide conviction.

Flores then pleaded no contest to failure to yield at a stop sign, speeding and driving without a valid license. Last month, Flores was ordered to pay $228 in fines and court costs and spend six months on probation.

"It's senseless," Dennis Bixby said.

"The frustration is just out the roof," Denise Bixby said.

Robin Jones, a family friend and Sunday school teacher to Amanda, said, "There hasn't been any justice in this case."

The Bixbys said the threshold should be lowered to charge someone with vehicular homicide, and they say the state should require that people involved in serious accidents get tested for drugs and alcohol. Flores was apparently tested only for alcohol.

But the family got some pushback from prosecutors.

John Wheeler, who serves as Finney County prosecutor, testified that as tragic as some traffic deaths are, they don't always involve negligence that is out of the ordinary.

And, he said, in the eyes of the law, the fact that Amanda was a beloved member of the community and Flores was an illegal immigrant, has no bearing on the case.

"Who you are matters to the community, but not to us," Wheeler said.

Karen Whittman, a senior assistant district attorney in Shawnee County, said it is difficult to win a vehicular homicide conviction from juries because at some point everyone has driven negligently -- exceeding the speed limit, running a stop sign or drifting into another lane.

"I can't sell it to them," Whittman said.

Vehicular homicide is the unintentional killing of a person in the operation of a motor vehicle in a way that "constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances."

The Bixbys said the fact that Flores didn't have a driver's license could have triggered a vehicular homicide charge but prosecutors who testified to the committee said not having a license didn't cause the wreck.

And in response to the call for more drug testing at accident scenes, Whittman said sometimes more training of law enforcement is needed rather than a new law.

Ed Klumpp, speaking on behalf of the Kansas Association of Chiefs of Police, said his "gut reaction" would be to support mandatory drug testing at accident scenes, but he said there were constitutional questions about such seizures of evidence without probable cause.

State Sen. Roger Pine, R-Lawrence, and state Rep. Kenny Wilk, R-Lansing, said they hoped to work with the committee to introduce legislation for the session that starts in January.

State Sen. John Vratil, R-Leawood, and chairman of the Senate Judiciary Committee, asked legislative staff for a complete review of court decisions on the vehicular homicide law.

"We need to determine the facts before we can form any judgment on this issue. It is a very complex issue, it is a very emotional issue but we have to be careful to avoid allowing emotions to cloud our good judgment," Vratil said.

-- Staff writer Scott Rothschild can be reached at (785) 354-4222.

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