Driver not Arrested

Why Wasn’t The Driver Arrested?

Far too frequently, motorcyclists are killed because a driver wasn’t paying attention and we have been asked by grieving family, “Why wasn’t the driver arrested?”

Unfortunately, family members don’t seem to get an adequate explanation from police detectives.

Two possible reasons are: There wasn’t sufficient evidence to prove a crime was committed; or more commonly, the driver violated a section of the NYS Vehicle & Traffic Law, which is a violation but not a crime.

When a crime was or may have been committed, there may not be enough evidence for the district attorney to prove guilt. It is unethical for the district attorney to prosecute if they don’t believe there is enough evidence to obtain a conviction.

For instance: A) A driver may have been drunk, but the alcohol test was taken too late so it didn’t show the driver was drunk. B) The driver was on drugs, but was only given a breathalyzer. C) The police officer didn’t have probable cause; or one of many other reasons.

More commonly, the driver committed a violation but not a crime. The driver may have made an illegal U-turn, or passed a stop sign, or red light, but just because it’s illegal that doesn’t mean it’s a crime. A misdemeanor or felony is a crime, but running a stop sign or red light is a violation, which is a lesser offense. A violation is not a crime.

There are situations which can elevate a motorcycle accident to a criminal offense, either a misdemeanor or felony, for causing the death of a motorcyclist.

The two most common vehicular crimes in New York are vehicular assault and vehicular manslaughter.

Some of the situations which can result in the arrest and prosecution of the driver causing a motorcycle accident are: Hit and Run; DUI / DWI / DWAI; and Reckless Driving.

Whether or not a crime has been committed, the family/estate of the deceased motorcyclist can bring a civil lawsuit for wrongful death seeking money damages and punitive damages against the people, and or companies responsible for causing the motorcyclist’s death.

If you were a victim of a crime, you may be able to obtain compensation through a lawsuit but you can also file a claim with the New York State Office of Victim Services.

If you have a question to submit for an article, a question about insurance or would just like to say hello, please call Phil Franckel at 1-800-HURT-911 or send your question to

Philip L. Franckel Esq. and Rob Plevy, Esq. are attorneys with FRANCKEL & PLEVY, LLP representing people hurt in motorcycle and other accidents.  Disclaimer: This article should be considered advertising to represent people HURT in an accident; is for informational purposes and should not be relied upon because it could contain errors; the correct information may be different for your set of facts even though they seem similar; and is not legal advice which should only be obtained by contacting Phil Franckel, Esq. or Rob Plevy, Esq. for a free consultation to discuss your specific circumstances at 1-800-HURT-911.

See our web sites, and  If you have been hurt in a motorcycle accident, speak directly to Phil Franckel 24/7 at 1-800-HURT-911 — 1-800-487-8911.