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Frosh Amends, then pushes Bill Forward in Maryland

Here is an explanation of the Senate Committee’s amendment to House Bill 363.

H.B. 363 is based on the Model Penal Code, a suggested criminal code developed by the American Law Institute.  Senator Brian Frosh (D–Montgomery) has consistently maintained that he is concerned that the proposed version of House Bill 363 might unintentionlly subject relatively ordinary behavior to criminal penalties. WABA’s testimony before his committee showed that the states that have enacted some variation of the Model Penal Code have only upheld convictions for egregious conduct resulting in death, not ordinary negligence. (Our testimony before the House focussed on the inadequacies of the existing law in Maryland.)

Mr. Frosh noticed that H.B. 363 used different adjectives than the Model Penal Code. The original version of House Bill 363 included the following language

SECTION 1…. § 210 (c). For purposes of this section, a person acts in a criminally negligent manner… when… (2) [t]he failure to perceive constitutes a substantial deviation from the standard of care that would be excercised by a reasonable person.

SECTION 2. AND BE IT FURTHER ENACTED, That it is the intent of the General Assembly that the term “substantial deviation from the standard of care” in § 2–210(c)(2) of the Criminal Law Article, as enacted by
Section 1 of this Act, be interpreted synonymously with the term “gross deviation from the standard of care” under § 2.02(2)(d) of the Model Penal Code of the American Law Institute.

After some negotiation, the Senate Committee changed one word:

SECTION 1…. § 210 (c). For purposes of this section, a person acts in a criminally negligent manner…when… (2) [t]he failure to perceive constitutes a substantial gross deviation from the standard of care that would
be excercised by a reasonable person.

Because Section 2 of the bill already defined “substantial deviation” as “gross deviation” this amendment does not seem to change the bill’s meaning. If the Senate passes the amended H.B. 363, then sponsors in the House should be able to explain that the Senate’s amendment is purely technical.

Maryland Residents: Please CLICK HERE to email your state senator expressing your support for House Bill 363, as amended.

4 comments
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Jim T
Jim T

The Washcycle blog has a longer version of this post, which gets into these issues to some extent. Please see http://www.thewashcycle.com/2011/04/senator-frosh-amends-then-pushes-negligent-homicide-bill-forward.html#tp I'll just add a bit of clarification assuming that you have seen the explanation there: HB 363 has been using the terms "substantial deviation" and "gross deviation" but it does not use the term "gross negligence" or "substantial negligence". So if I answer your question, we will no longer be talking about HB 363. Because of the way Maryland case law has evolved, the term "gross negligence" in a criminal case means "gross deviation" plus the driver knew she might kill someone. That's already against the law. But it is hard to prove what the driver knew unless she told somebody. Under HB 363 "criminal negligence" would be "gross deviation" plus the driver should have known that she might kill somene. The judge or jury can determine what a driver should know. By the way, "gross deviation" and "substantial deviation" mean the same thing, so the amendement does not change what the law means. Note however, not everybody knows what the law means. The potential confusion by people who have not studied the law of criminal negligence would be different for the two terms. "Gross deviation" is less likely to confuse tort lawyers and people who basically understand the Model Penal Code but have not re-read it lately. "Substantial deviation" is less likely to confuse defense lawyers who are too poorly funded to read the case law since the word "gross" does not appear at all.

David
David

Since the amendment is to one word please define the difference between what constitutes "substantial negligence" and what constitutes "gross negligence."

Jim T
Jim T

This post does not even mention "gross negligence," and I try to avoid that term wherever possible because it has two different meanings. If you could elaborate on your question, I would be happy to provide an answer here. (If you or anyone else wants a more detailed discussion of what gross negligence means, please let me know, but I don't think that was the central thrust of your question here.)

Steve
Steve

Does the rule for gross negligence apply to bikers that run red lights while travelling in the street?

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