Neighboring states have harsher charging options for sober drivers who kill people
The reaction to Attorney General Jason Ravnsborg’s fatal crash that killed pedestrian Joe Boever isn't the first time there’s been frustration over South Dakota's charging options for sober drivers who accidentally kill people.
In 1989, Michael Olsen was driving his tractor during the daytime near Beresford. He made a left turn and crashed into an oncoming car that had the right of way.
Joyce Ann DeKock, the 29-year-old driver, died from her injuries.
"Everyone in town loved talking to her and getting help from her at the grocery store," said Mark DeKock who had a daughter with Joyce during their nine years of marriage. Joyce was "kind, humble emphatic, saw good in all types of people."
The accident case made its way to the South Dakota Supreme Court, whose opinion outlines the facts of the crash.
"I didn't see it,” Olsen yelled after exiting his tractor, a witness recalled.
Olsen, who was 19 at the time, told law enforcement that he looked to make sure it was safe to turn but didn’t see the car.
The witness who had been driving behind Olsen told police that Olsen should have been able to see the vehicle.
Olsen could not be reached for comment.
John Slattery, the Union County state’s attorney at the time, charged Olsen with second-degree manslaughter.
A judge dismissed the charge and Slattery appealed to the South Dakota Supreme Court, which ruled that the lower court was within its discretion to dismiss the charge.
Slattery declined to comment for this story.
Reckless, fatal crashes can amount to second-degree manslaughter, the Supreme Court said in its ruling. But the justices said recklessness requires that a person knows they are acting dangerously.
“Nothing in the evidence of Olsen's behavior suggests that he was in any way aware of the risk he was creating when he turned his tractor towards the gravel road,” the court wrote.
Slattery “lamented that lacking a manslaughter conviction, ‘all we can do is to go careless driving,’” one of the justices recalled. “South Dakota should have some law on the books to prosecute an offender whose criminal acts fall between ‘manslaughter’ and ‘careless driving’ if ‘reckless driving’ does not fit the facts,” Slattery argued.
"Careless driving just didn't seem enough. Any person is careless on any given day," 62-year-old DeKock told SDPB.
"If there is a vacuum in the law, i.e., a blind spot between manslaughter and careless driving, our Legislators, at the State Capitol, should fill the gap. It's not our job," a justice wrote, echoing comments made by one of the prosecutors in the Ravnsborg case.
But 33 years later, the laws remain the same.
Negligent homicide is one potential law that would give South Dakota prosecutors the option John Slattery was looking for.
The crime is more serious than careless and reckless driving, but less serious than second-degree manslaughter.
Yet none of the state leaders disappointed over Ravnsborg’s charges introduced a negligent homicide or any other relevant bill during the 2021 legislative session, the first one after Ravnsborg’s crash.
And they did not introduce such legislation this year, even as the House considered and later impeached Ravnsborg.
"I have a lot of empathy for the Boever family," DeKock said through tears.
South Dakota charging options
South Dakota has petty offenses, municipal ordinances and laws that can apply to sober drivers who accidentally kill pedestrians or other drivers.
The least serious offense is a petty offense, a civil action punished with a $25 fine.
Drivers charged with state-level misdemeanors and municipal offenses for violating city ordinances face fines and jail time.
Relevant misdemeanors include driving while texting, speeding, illegal lane changes, careless driving and reckless driving.
A careless driver should realize, but doesn’t, that their driving behavior is dangerous. A reckless driver knows they are driving dangerously and doesn’t stop their risky behavior.
Municipal offenses and Class 2 misdemeanors, such as careless driving, have maximum punishments of 30 days in jail and a $500 fine. Class 1 misdemeanors, which includes reckless driving, can be punished by up to a $2,000 fine.
READ: Ravnsborg's punishment, charges similar to others in comparable accidents
Felonies are the most serious type of offense, with maximum punishments ranging from two years in prison to the death penalty.
The most serious charge for drivers who accidentally kill people is vehicular homicide. However, it can only be applied to drivers who are intoxicated. The crime is punished by up to 15 years in prison.
Second-degree manslaughter is a homicide offense that can apply to various situations, not just car accidents. Sober or intoxicated drivers can be charged with the crime if they kill someone due to reckless driving. The maximum punishment is 10 years in prison.
Sober or intoxicated drivers who flee after accidentally killing someone can be charged with hit-and-run, punished by up to two years in prison.
Neighbors have harsher punishment options
South Dakota’s neighboring states — North Dakota, Wyoming, Montana, Nebraska, Iowa and Minnesota — have harsher charging and sentencing options for non-intoxicated drivers who accidentally kill people.
Some of these states have different maximum punishments if the driver seriously injured or killed someone.
For example, in Montana, careless drivers face a fine up to $100. But careless drivers who seriously injure or kill someone can be fined up to $5,000 and spend up to six months in jail.
Reckless driving in Minnesota has a maximum $1,000 fine and 90-day jail stay. But if the case involves serious injury or death, the punishment ramps up to a maximum $3,000 fine and a year in jail.
In South Dakota, careless drivers face the same maximum punishment regardless of the outcome. The same holds true for reckless driving.
States around the region also have broader or additional felony-level charging options.
South Dakota, North Dakota and Montana, have felony vehicular homicide laws that only apply to intoxicated drivers. Nebraska, Wyoming, Iowa and Minnesota's laws apply to intoxicated and sober drivers.
Iowa’s vehicular homicide law provides very specific guidelines. It says sober drivers who kill people can be charged with the crime if they drive recklessly, text while driving, flee law enforcement, or drive more than 24 miles-per-hour over the speed limit.
The phone section of Iowa’s law was added in 2017 after a texting driver killed someone, according to Daniel Herting, an attorney in Des Moines. He said many people were upset about the punishment, which they felt was too lenient.
Finally, some neighboring states have a negligent homicide law that can apply to sober drivers who accidentally kill people.
These laws provide a way to charge a driver with a death that stems from “negligent” behavior, a lower standard than “reckless” behavior. “Reckless” behavior is a standard that South Dakota and some other states include for the more serious crime of second-degree manslaughter.
Montana and North Dakota have felony negligent homicide laws while Wyoming's is a misdemeanor. South Dakota, Minnesota, Iowa and Nebraska have no such law.
But it's not very common for sober drivers to be charged with felonies, attorneys in bordering states told SDPB. And just because a driver is charged, it does not mean they will be convicted or sent to prison.
The attorneys said punishment can range from probation to prison depending on the driver’s behavior and criminal history.
One example is the case of a North Dakota woman who pleaded guilty to negligent homicide and failing to report that she hit a pedestrian, who later died.
The woman was facing up to 15 years in prison but
the judge ordered her to spend two years on unsupervised probation.
The judge, who noted the driver’s lack of criminal history, also deferred the sentence, which means the woman’s conviction will be sealed if she follows probation rules.
In Minnesota, two sober drivers faced up to 10 years in prison after pleading guilty to vehicular homicide in separate incidents. Both men fled after accidentally killing pedestrians.
One driver was sentenced to four years in prison while the other will avoid prison if he follows a 10-year probation agreement. The agreement, approved by the victim's family, has strict requirements aimed at rehabilitation.
Solutions for the future
SDPB interviewed loved ones and friends of pedestrians who died after being hit by sober drivers.
Many called for increased awareness. They said parents should talk with their children about distracted driving and schools should bring in guest speakers on the topic. They also said there should be more public service announcements on traditional and social media.
Joyce Van Thomme is the sister of Bob Scott, a 77-year-old Army veteran and retired teacher who was killed while walking in a crosswalk.
“He was a very talkative person. He walked the streets of Sioux Falls a lot and talked to a lot of people around his neighborhood,” Van Thomme told SDPB. She said her brother also ran marathons in his 60s and 70s.
Van Thomme said newspapers published an obituary about her brother but there were no stories about him or the crash.
“I think it should have been more publicized,” she said. “Just to let people know to slow down and watch for crosswalks, that there are people that walk instead of drive. I think it would help.”
Some friends and loved ones called for harsher punishment.
Mark DeKock, whose wife died in a fatal crash, said South Dakota should consider adopting laws that allow for higher punishment if someone is killed or injured due to careless driving.
Others said there are alternative or additional ways to hold people accountable, such as probation, community service and safe driving classes.
Van Thomme said community service or probation might encourage reflection and more responsible driving to avoid any punishment from their probation officer.
Rev. Reginald Lewis, was a friend and pastor of Jerry Watkins, another pedestrian killed in a crosswalk.
“He was very warm-hearted, very caring. He was always willing to be the first one to jump up if something needed to be done,” Lewis said.
Lewis said people convicted of charges related to distracted driving — whether or not they hit or kill someone — should be ordered to attend traffic court or a safe driving class.
Most defense lawyers and prosecutors told SDPB that harsher laws and punishment won't prevent all crashes or make everyone drive more carefully. Several pointed to DUI laws, which do not always deter drunk driving.
“The very nature of an accident in and of itself is at most negligence, and how can you deter negligence? That's when someone doesn't realize something or doesn't think about it in advance,” said Tim Rensch, Jason Ravnsborg’s defense lawyer.
Ian Reagan, who researches distracted driving at the Insurance Institute for Highway Safety, is also doubtful.
He said studies show mixed results about whether texting and other distracted driving laws prevent crashes.
And regional data show harsher punishment doesn’t completely correlate with lower pedestrian fatalities.
South Dakota’s neighboring states all have more serious charging options. And while South Dakota does have a higher pedestrian death rate than North Dakota, Minnesota, Iowa and Nebraska, it’s lower than the national average, Montana and Wyoming.
Reagan said the latest research on distracted driving and pedestrian fatalities focuses on the “Safe Systems” model.
This approach recognizes that people make mistakes, so roads and technology should be designed to help prevent accidents and minimize physical impact when it does happen.
Reagan said sidewalk availability, street width, speed limits, road lighting, headlight brightness, and automatic emergency braking systems can help prevent crashes and deaths.