Cyclists Question Decision Not to Press Criminal Charges Against Driver Who Hit, Killed Bethesda Bicyclist

22-year-old Ricardo Freeman faces traffic violations, not criminal charges for Aug. 28 collision that killed Tim Holden

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Tim Holden, the Bethesda man killed Aug. 28 while riding his bicycle on Massachusetts Avenue

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A decision by local law enforcement authorities earlier this month not to pursue criminal charges against the driver who struck and killed Bethesda bicyclist Tim Holden has brought a nationwide debate over what constitutes criminal charges in collisions between vehicles and bicyclists to Montgomery County.

It has also spurred backlash from many in the local bicycling community, some who knew Holden or who participate in riding groups that frequently pass the spot on Massachusetts Avenue where Holden was struck from behind and killed on a clear August morning.

“This crash specifically really struck a chord with people,” said Greg Billing, executive director of the Washington Area Bicyclist Association. “Here was a person who was doing everything right while riding a bike, at least from the details that we know, and he was killed with very little consequences for the driver. When as a community and a culture are we going to stop accepting traffic deaths?”

The Montgomery County State’s Attorney’s Office charged the driver in the incident, 22-year-old Harford County resident Ricardo Freeman, with three traffic violations for striking Holden, a 64-year-old former Navy SEAL who lived nearby.

According to a police vehicle crash report, Holden was bicycling while wearing a helmet in the marked right shoulder of eastbound Massachusetts Avenue near Osceola Road at 6:15 a.m. when Freeman’s Chevy Malibu, also traveling eastbound, hit the back tire of Holden’s bicycle, throwing Holden from the bike.

Holden was pronounced dead at the scene.

Freeman, a contractor headed to a nearby construction site, and a passenger in the car remained at the scene. According to the police report, toxicology and alcohol screens revealed no evidence that Freeman was impaired.

Sources with knowledge of the case told Bethesda Beat it appeared Freeman was tired from a long drive into work from the Baltimore area.

According to the police report, it’s unknown if Freeman was distracted by anything that would’ve caused him to hit Holden.

Part of the police report on the Aug. 28 collision that killed Tim Holden.

When asked for an explanation of the decision not to charge Freeman criminally, Ramon Korionoff, spokesperson for the Montgomery County State’s Attorney’s Office, provided definitions of two criminal statutes: manslaughter by motor vehicle—grossly negligent driving, and the less severe criminally negligent manslaughter, a misdemeanor put on the books in 2011 that carries a maximum penalty of three years in prison.

The manslaughter by motor vehicle charge commonly used when a driver is found to have been drunk requires that the driver drove “in a way that creates a high degree of risk to, and shows a reckless disregard for, human life, and the driver is neither aware that his or her driving has created that risk.”

The criminally negligent manslaughter law says “the defendant should have been aware but failed to perceive that [his] [her] manner of driving created a substantial and unjustifiable risk to human life,” but also that “simple carelessness is insufficient to establish defendant’s guilt.”

"While it is deeply disturbing to all that a man lost his life while cycling in a calm suburban neighborhood, our investigations and analysis based on the law indicate that this accident was just that; albeit a deadly one," Korionoff said Monday.

“Prior to [2011] there wasn’t anything between a traffic ticket and vehicular homicide.  This was put in to be the middle ground,” Billing said, referring to the criminally negligent manslaughter law. “The challenge is many state’s attorneys have interpreted that bar as very high for what is actually negligent.”

The scene of the collision is familiar to Peter Wilborn, a South Carolina attorney who specializes in representing victims and the families of victims of bike collisions. He grew up on Allan Road in Bethesda and said he regularly rode Massachusetts Avenue, Goldsboro Road and MacArthur Boulevard when he was a kid.

Wilborn’s brother was killed in 1998 while riding a bike in Wyoming. The driver who struck him was underage and had run a red light. Wilborn is now part of a network of bicyclists and attorneys keeping track of such cases around the country.

Keeping track of the legal ramifications for drivers in those cases isn’t easy.

A study released in 2013 by the League of American Bicyclists tried to find that data for 633 reported fatal bicycle crashes involving a vehicle in 2012 nationwide. In 285 of those crashes, the bicyclist’s obituary or other publicly entered data had information that indicated either a traffic citation, arrest or criminal charge for the driver.

Information on 21 percent of those cases showed “evidence of a likely charge” against the driver and 12 percent resulted in a criminal sentence for the driver.

“I’ve been involved in a lot of cases that explore that gray area between accidents—we call them crashes—and what we think is a crime,” Wilborn said. “You can imagine there are a million different factors and variables that would change the way you analyze a case. Basically, for criminality, you’re kind of weighing the aggravating factors. Do those rise to the level that shocks our consciousness? That’s why the cycling community cares so much.”

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Roadside memorial for Tim Holden near the spot on Massachusetts Avenue where he was struck by a driver and killed while riding his bicycle in August. Credit: Aaron Kraut

Kirby Beck, a Minnesota-based bike safety expert and former police officer who authored The Minnesota Peace Officer’s Guide to Bicycle Traffic Management, said prosecutors around the country are hesitant to pursue criminal charges against drivers who hit bicyclists unless there are clear signs of intent, intoxication or speeding.

“That upsets a lot of people. I network on Facebook with some real die-hard bicyclists who think, ‘Oh my god, these people should go to prison,’ ” Beck said. “Well, sometimes bad stuff happens. It’s humanly impossible to never take your eyes off the road as a driver. If you choose to ride a bicycle, you should be aware that you’re a little more at risk because you don’t have all that metal and frame wrapped around you. There’s a tremendous sense of entitlement from drivers on the roadway.”

Tim Joganich, a Philadelphia-based forensic engineer who specializes in analysis of bike accidents, said the process of investigating a collision between a car and bicycle has been fairly consistent since the 1980s, though recent inventions such as the MapMyRide app, GoPro cameras and other technology have offered clues in some investigations.

Joganich said he worked on a case in Florida in which a driver made a right turn in front of a bicyclist, leading to a collision. Police went through the driver’s cell phone records and found she was on a phone call when the collision happened.

Still, Joganich said many investigations come down to a judgment call on “whether the driver should have seen the cyclist and whether the driver had the reaction time to avoid the collision.”

Wilborn represented the family of Matthew Burke, who died after being hit by a driver in 2011 in Aiken County, Georgia. Burke was riding at the back of a group of bicyclists when a driver hit him from behind.

Wilborn said Georgia State Troopers who reenacted the incident and videotaped it came to the conclusion that the crash was an accident and the driver, Daniel Johnson, shouldn’t be criminally charged.

“We looked at the video pretty carefully. The driver said he hadn’t seen the cyclists. We counted the number of seconds the cyclists were clearly visible up ahead,” Wilborn said. “The prosecutor said he didn’t buy that the driver hadn’t seen him or if he didn’t see him then he must have been driving blindfolded.”

Prosecutors charged Johnson with criminal reckless homicide and he agreed to a plea deal in which he was sentenced to 90 days in jail.

After a weeks-long investigation into Holden’s death and a meeting between police officers and the State’s Attorney’s Office on Oct. 21, Freeman was charged with three traffic violations: failure of vehicle driver to avoid a collision with a bike operated by a person, failure of vehicle driver to pass safely at a distance of at least 3 feet when passing a bicycle and negligent driving.

According to state court records, Freeman paid fines totaling $690 last week for the three traffic violations.

Since Holden’s death, Billing has met with county police Capt. David Falcinelli, who commands the Bethesda-based 2nd District, to talk about bicycling safety issues. On Nov. 3, Falcinelli joined county officials and concerned residents along Massachusetts Avenue in a “Day of Action” to highlight safety issues for bicyclists and pedestrians.

“I don’t know all the circumstances of this case, but hitting somebody who’s in the shoulder of the road is rather negligent,” Billing said. “If the legal tools aren’t there, then we need the state’s attorney pushing for the tools that they need to hold drivers accountable. That’s really what it comes down to.”

Rui Ponte, a local cyclist who knew Holden through a riding group, said area bicycling blogs “are on fire” with the news that Freeman won’t be charged criminally in Holden’s death.

“What are MoCo police up to?” Ponte asked in an email. “There is a war on cyclists.”

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