The Virginian-Pilot
©
VIRGINIA BEACH
Authorities have decided not to charge the woman whose sport utility vehicle struck and killed a bicyclist on Shore Drive last month.
Commonwealth's Attorney Harvey Bryant said members of his office and the Police Department's fatal crash team met Wednesday and determined there was insufficient evidence to file charges in the death of Daniel Wayne Hersh, the 54-year-old civil engineer and ex-SEAL killed on April 19.
Hersh, an avid cyclist on his Sunday morning ride, was apparently following traffic laws by pedaling east in the right travel lane - not the turn lane - on Shore Drive near Starfish Road in the early light shortly before 6 a.m., when a Ford Explorer struck him from behind. He was wearing a helmet and a bright yellow windbreaker with reflective strips, Bryant said.
"In terms of his safety equipment, there certainly was no fault on his part," he said.
The driver of the Explorer told police she never saw Hersh, and authorities found no evidence to support potential charges to allege that she hit him willfully or through negligent or reckless driving, Bryant said.
The woman was cooperative, and she realized she had hit a bicyclist only after she felt the impact, stopped and saw Hersh's body, Bryant said.
Investigators took measurements, photographs and video of the scene, all of which supported the woman's statement that she was in her lane and abiding by the 45-mph speed limit, Bryant said.
There were no witnesses, but investigators determined the driver had not been smoking, and she passed a breath test for alcohol on-scene, he said.
She denied falling asleep, and her cell phone records showed no calls or text messages at the time of the crash, Bryant said.
The woman loaned her Ford Explorer to police, who conducted a re-enactment video along the same stretch at the same time of day.
Officers also stationed themselves along Shore Drive in the weeks after the crash hoping to find witnesses along the route, he said.
None of the efforts produced anything that "would lead to a criminal prosecution or would substantiate a criminal prosecution," Bryant said.
Hersh's oldest son, Greg, declined to comment Thursday about the decision, but local cyclists expressed frustration at what they said was a typical response to such crashes.
"I'm not surprised," said Wes Cheney, the Norfolk cyclist who organized a memorial ride in honor of Hersh that took place the week after he was killed.
Still, he said, a crash that results in a fatality ought to warrant some type of criminal charge.
"If you kill somebody, you should lose your driver's license," he said. "There should be a penalty more than just remorse or guilt."
Bill Hart, a Virginia Beach cyclist and a board member for the nonprofit Virginia Bicycling Federation, said he was mystified by authorities' inability to charge the driver or "make her accountable in some way."
"I don't see how she did not see him," he said. "I don't understand that."
Hart said he and others are organizing a "critical mass" ride down Shore Drive, possibly in July, to lobby for a speed limit reduction to 35 mph from 45 mph.
In another crash that same week in April on Virginia Beach Boulevard, charges were filed against a man suspected of drunken driving.
Brandon Wayne Meck, 25, has been charged with aggravated involuntary manslaughter in connection with the death of David Paul Lucas.
Bryant, the commonwealth's attorney, said circumstances in that case are much different from the crash that killed Hersh. Although Lucas was crossing Virginia Beach Boulevard against the light at North Great Neck Road, he was in plain view of at least two motorists, Bryant said.
Meck is accused of driving the Nissan Xterra that accelerated from a stop at the intersection. It struck the 57-year-old pedestrian just as he placed one foot on the median, Bryant said. Lucas died hours later at a hospital.
A police officer in a patrol car directly behind the Xterra saw Lucas crossing and witnessed the crash, as did another driver, Bryant said.
Police said they pulled the vehicle over about a mile away. The driver, identified as Meck, registered a blood-alcohol concentration greater than 0.20 - more than twice the state's legal limit for driving of 0.08, according to police and court records. He also was charged with driving under the influence and felony hit-and-run.
Shawn Day, (757) 222-5131, shawn.day@pilotonline.com
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Not Everyone is Bad
Keith,
I agree that not every motorist is an evil murderer. I'm a motorist also, and I can appreciate your frustration with cyclists who fail to obey the laws. I get frustrated with the amount of motorists AND cyclists who disobey the traffic laws as if they are just suggestions. I see motorists roll through stop signs all the time. Granted most of the times I witness these blatant acts are when I'm off-duty because I'm not driving a marked police car. On Saturday I witnessed a cyclist pull up on the right of me at a busy intersection, while stopped at a red light, and make a left turn into oncoming traffic... and of course he wasn't wearing a helmet. I just thought, "Buddy... you're living on borrowed time!" Neither side is completely innocent and neither side is completely guilty. And just like I said not every motorist is bad, neither is every cop. Most are just trying to do a job and go home at the end of the day.
Well Nate, you're in law
Well Nate, you're in law enforcement and you're right about one thing is that I have disdain for the police and have lost all respect for them as they have no respect for the citizens they are supposed to serve and also have very little means to protect. As has happened in Norfolk that ignorance of the law is no excuse except for police officers, sheriff's and the city. In Chesapeake they (LEO's) got one of their own killed for no good reason. As for cyclists, I have disdain for them when they act in a dangerous manner by riding on dangerous roads and assume that everyone who lawfully operates a motor vehicle on the streets is a murderer who purposely is out to kill them when there is an accident and there is no proof that the motorist was negligent. Secondly, there are just as many cyclists out there who run stop signs and violate traffic rules as there are motorists. Neither one is perfect. Third, I believe your case law argument is still baloney. It has nothing to do with a right to bicycle on public roads.
The SUV Did It
The Driver was in a Ford Explorer - Consumer Guide warns that "outward visibility is hindered some by thick roof pillars.” Further, SUV drivers, being up higher tend to focus further down the road and not on what is directly in front of them.
But there’s something more. Our insatiable need for more oil from the Middle East and the current collapse of the big three US automakers are directly related to people who buy these behemoth fuel guzzling roller prone dangerous SUV trucks. SUV’s owners have caused America to go to war to protect their God given right to pollute the atmosphere more than passenger car drivers and to lead the big three US automakers to believe they could go on in perpetuity making an exorbitant $10,000 per vehicle while ignoring fuel efficient cars that Japan has now surpassed us in making and selling.
Why would anyone want to put their family and other drivers and cyclists more at risk????
SUV Drivers Are Superior to Lowly Cyclists
She didn’t get “reckless endangerment” nor a “misdemeanor charge” nor “failure to pay full time and attention” nor “failure to yield.” Why in Virginia it’s a misdemeanor offense not to yield to a pedestrian anywhere even without an accident. So what happens if this driver hits another cyclist, same circumstances? Lesson - SUV drivers are superior to lowly cyclists.
Case Law
Keith, it's called CASE LAW for a reason...
Case law (also known as decisional law or judicial precedent) is the general term for the principles and rules of law set forth in judicial opinions from courts of law.[1] Case law incorporates courts' decisions from individual cases and encompasses courts' interpretations of statutes, constitutional provisions, administrative regulations and, in some cases, law originating solely from the courts. Case law is often published in print law reports or reporters (and increasingly on court websites) to establish precedent - rules to apply in future court decisions dealing with similar situations.
And I do not work for Chesapeake... in fact I don't work for any law enforcement agency in Hampton Roads. It is obvious your disdain for the police is probably equal to or greater than your disdain for cyclists.
Legally spraking? What rubbish! Sir.. You should be ashamed!
Nate: That case has nothing to do with the right to bicycle. That case had to do with juvenile curfews and it pertained to Pennsylvania and their rights to "roam freely" and their lawful associations. I should have known better. You have taken one small paragraph and taken it completely out of context and to make it look like the law of the land. I guess that's why you're a cop. That pretty much how law enforcement does things anyway as the ends to justify the means. You must work for Chesapeake.
This is baloney!
Legally Speaking
Bicyclists actually have more rights than motorists? A bicyclist has a right to the road under the constitutional right to travel. On the other hand, driving a vehicle is a privilege granted only by a license. The roads first started getting paved around 1890 because of lobbying from cyclists who complained about poor road conditions. Automobiles were the newcomers. I think everybody needs to slow down and pay attention. Even if you're stuck behind a cyclist for 5 full minutes, how much time did you really lose? 5 minutes? Is it worth risking someone's life???
"The rights of locomotion, freedom of movement, to go where one pleases, and to use the public streets in a way that does not interfere with the personal liberty of others are basic values 'implicit in the concept of ordered liberty' protected by the due process clause of the fourteenth amendment."
Bykofsky v. Borough of Middletown, United States (1976)
getlaxguy
I was responding to a poster who seems to think it's a good idea to go as slow as you want on a busy highway which, of course, is not a good idea. It's unsafe. I have gotten a ticket for doing just that and was cited for impeding traffic. I'm confused how you concluded that I believe a posted speed limit is the minimum speed to drive. I drive at the posted speed limit everywhere I go and am continually flipped off, cursed at, honked at, yelled at, given dirty looks, and sometimes have to slam on my brakes because some jerk gets angry and passes me only to cut in front of me and slow down suddenly. Imagine what bicyclists have to deal with every day even when they follow every law on the books. The amount of inconsideration, frustration, and rage people display around here is frightening. The thought of riding a bicycle in that environment is terrifying.
Cyclist Had Lights
Dan did have lights as seen by friends of mine who came upon the scene afterwards an noticed the bike on ground from the blinking red light.
the couple stopped in the middle of the street?
In reply to 94kSoldier [“what are the couple on a bike doing stopped in the middle of the street…?”]: They were paying their respects to the victim, along with about 150 other cyclists, myself included, who took part in that Memorial Ride. Also “in the middle of the street” just out of view, was the rest of Mr. Hersh’s family; for the memorial, they chose to stand at the spot where their beloved son/brother/father lost his life.
With over a hundred cyclists gathered around, that couple (on a tandem) didn’t have many better options. And while it may appear like they are “in the middle of the street,” if you look closer, you’ll notice the captain’s (front rider's) right foot is actually in the road’s shoulder.
Many drivers passed by during the brief event; all of them managed to cautiously and courteously maneuver their vehicles around the Hersh family without incident, nor disdain for what some users here might angrily deem just another “obstacle.” Pay attention, respect the laws, and show a little compassion for your fellow man.