A driver who fatally hits someone and leaves the scene is subject to criminal punishment. A drunken driver who fatally hits someone and leaves the scene is subject to more severe criminal punishment.
Why the difference, when the outcome — failure to stop and help; a person’s death — is the same? Numerous lawmakers, police officials such as Austin Police Chief Art Acevedo and families of hit-and-run victims don’t think there should be a legal difference and that, in fact, the tougher potential penalty for drunken drivers creates an incentive for them to flee the scene of an accident to sober up, since the alternative is a lesser charge.
Democratic state Sens. Kirk Watson of Austin and Wendy Davis of Forth Worth have filed a bill that would change failure to stop and render aid from a third-degree felony, which carries a sentence of two to 10 years in prison, to a second-degree felony punishable by up to 20 years in prison. A similar bill has been filed in the Texas House.
Legislators should make the proposal law. A change in the law will mean that drunken drivers who flee to sober up will face as stiff a penalty if convicted of failure to stop and render aid as they would have faced if convicted of intoxication manslaughter.
The family of Courtney Griffin is fighting for the change. Griffin, a 30-year-old nanny, was walking on Exposition Boulevard in West Austin when she was struck and killed on May 27, 2011, by a BMW driven by Gabrielle Nestande, who left the scene.
Authorities initially charged Nestande with failure to stop and render aid. In October 2012, prosecutors brought intoxication manslaughter charges against Nestande, a former legislative aide.
During her trial last month, Nestande admitted she had been drinking the night of the accident but denied being drunk.
She testified she had been checking the alarm on her cellphone when something smashed her windshield. Nestande said she thought someone might have thrown a rock at her car and, afraid, had driven to her boyfriend’s apartment a half-mile away.
A Travis County jury composed of nine men and three women found Nestande guilty of criminally negligent homicide Feb. 21. Jurors declared her not guilty of failure to stop and render aid, however, and decided prosecutors had not proven Nestande was drunk when she hit Griffin.
The next day jurors recommended a sentence of 10 years probation. Judge Karen Sage will formally sentence Nestande on March 25.
The number of hit-and-run fatalities in Austin over the past five years has varied, with no trend to note. There was a high of 15 in 2008 and a low of five in 2010, according to Austin Police Department figures. There were 12 hit-and-run fatalities last year.
Readers reacted strongly to the verdict in Nestande’s trial, posting scores of comments on statesman.com. Many readers thought Nestande’s youth, privileged background and political connections were advantages that resulted in a legal slap on the wrist, and that other defendants in a comparable case but from a different background would have been punished more harshly. But as the Austin American-Statesman reported Sunday, a sentence of 10 years of probation is not uncommon for first-time defendants such as Nestande, whatever their socioeconomic backgrounds.
If failure to stop and render aid were already a second-degree felony, the jury that heard Nestande’s case still might have reached the same conclusion.
Each trial has its own set of facts, its own peculiarities and nuances, its own judgments. Increasing the potential penalty in hit-and-run cases won’t guarantee a favorable verdict for the prosecution and victim’s family.
Nonetheless, the payment for the crime should be higher. A defendant found guilty of hit and run has committed an unconscionable act. Whether committed sober or drunk, the penalty should be the same.