Truck driver will be prosecuted if serious guilt can be established

POSTED: 05/11/11 11:50 AM

Maximum penalty for causing fatal accident is 2 years

St. Maarten / By Hilbert Haar – The shockwaves of Friday’s fatal accident that claimed the life of Silvia Lynch are still battering the community. Politicians like UP’s Jules James and DP President Michael Ferrier have suggested a parliamentary inquiry and changing the law, respectively, and on Monday, social and political activist Eldridge van Putten said that he, like many others, were outraged that the truck driver had been released after six hours on Friday.

Chief Prosecutor Mr. Hans Mos told this newspaper that he understands the emotional reactions. “The law only allows us to detain someone for longer than six hours if the case is about an offense that carries pretrial detention. That only applies to crimes that carry a maximum sentence of 4 years or more; and that is not the case here. Legally we had no possibility to detain him any longer.”

Mos said that Van Putten’s assessment that “nobody goes to prison anymore if the sentence is below 4 years” is incorrect. “That is simply not so,” he said.

Mos said that the investigation into the circumstances of the accident is not complete yet. “This is a fatal accident, and though I cannot be certain before the investigation is finished, it could probably qualify as culpable homicide (dood door schuld). That carries a maximum penalty of 2 years.”

If the driver causing a fatal traffic accident is under the influence of alcohol, the maximum penalty in St. Maarten is 6 years. If an accident results in serious injuries, the maximum penalties are 6 months and 4 years respectively.

Mos said that the heavier qualification of manslaughter for the accident is not feasible, because this “supposes a certain level of intent.”

The Chief Prosecutor acknowledged that trucks and pedestrians are not on a level playing field on the road. “This is inherent to car traffic. If you are on the road with a 25-ton truck and there are people around on bicycles, or pedestrians, then you have a serious obligation to take those others into consideration. If you don’t, you will almost always be guilty.”

The investigation focuses on the question whether it is possible to find the truck driver seriously at fault.

“It is clear that he committed an offence, because you must always be able to bring your vehicle to a full stop. The driver assumed that the bus would have driven away by the time he arrived at that point. That was a serious underestimation with fatal consequences.”

If the investigation shows that the driver is seriously at fault he will be prosecuted under article 320 of the penal code, Mos said.

The prosecutor confirmed that DP President Michael Ferrier had contacted him. Change the law, he said. But that is not the task of the prosecutor’s office. I said, Mr. Ferrier, you are the president of the Democratic Party, your faction has the possibility to submit an initiative law to the parliament.”

Mos confirmed that the law in the Netherlands was amended in the early nineties, whereby the maximum penalty for killing someone in a traffic accident is now 3 years. If the accident is the result of reckless driving, the maximum penalty is 6 years. And if there are aggravating circumstances a court has the option to add 50 percent to that maximum. So the highest possible penalty is 9 years.”

Aggravating circumstances are when the driver was drunk, refused a breathalyzer test, excessively over-speeding, failed to give right of way, or drove to close behind the car in front of him.

Mos said that the Dutch law changed after a serious traffic accident in Vlissingen, in the province of Zeeland. A man drove within the city limits at 140 kilometers per hour. It was raining, so the streets were wet. In a sharp bend he fell, and his bike slammed into a cyclist, who died as a result.”

The Chief Prosecutor pointed out that “making one single mistake” in traffic is not enough to prosecute a driver for the consequences. “There has to be more, otherwise there are legally no grounds to attribute guilt for a terrible accident.”

Mos said that the investigation also focuses on the owner of the truck and the status of the driver’s truck driver’s license.


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