Q: Is a commercial driver who kills a pedestrian while driving on a suspended license usually issued a citation?
My son was struck and killed by a commercial truck whose driver's license was suspended in "the 3rd degree". My son was a pedestrian, and granted he was no in a crosswalk. But shouldn't the driver of the truck at least have been issued a citation for driving on a suspended license? And he was not drug or alcohol tested either. I thought that was mandatory for an accident involving a fatality? Thank you for any help.
A:
I am so sorry about your son. I just became a dad and can't imagine how difficult it would be to lose a child.
What the police or prosecutors decide to do to the driver of the truck criminally has minimal, if any, impact on your potential wrongful death claim. I've seen dozens of cases where police were simply wrong about their conclusions and/or how they investigated a claim. I was just hired by a client who was ejected from a vehicle that rolled six times. In spite of the grave nature of his injuries and the catastrophic collision, the police didn't take a single photograph at the scene of the wreck. I'm dumbfounded as to why not, but it's just another example of why, in spite of their best efforts, police don't always do things correctly.
Please don't let the fact that your son was not in a crosswalk deter you from talking with an attorney about your rights. There are lots of situations where someone hit by a truck outside of a crosswalk would have less fault than the driver of the truck.
A:
First off, I am terribly sorry to hear that. You rightly have questions that need more response than this format can provide, so I'd be happy to talk to you about them.
Some basics: The potential Driving While Suspended charge would never be filed up front. The state needs to review for more serious charges, such as Vehicular Homicide. Charging a minor DWS could in theory interfere with the ability to prosecute a more serious charge down the road (a double jeopardy issue).
Drug / alcohol testing generally can't be conducted absent probable cause. In other words, unless the investigators have a specific factual basis to believe drugs / alcohol were involved, they can't get a warrant for blood.
Finally, the crosswalk issue means virtually nothing, on the civil side at least. May matter for the driver's culpability in proving a criminal charge, because the two use different standards. Again, much more than can be explained in a format like this.
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