Constitutional concerns about an Iowa bill that would allow for stricter penalties in hit-and-run cases involving injury or death would likely not block its enforcement should it become law, if state and federal court decisions on similar laws are any indication.
The bill, known as Emmalee’s Law, is named for Emmalee Jacobs, an 18-year-old freshman at Iowa State University who was struck and killed by a CyRide bus as she walked to class in December 2015. The driver of the bus, Benjamin Clague, eventually pleaded guilty to a simple misdemeanor for failure to report an accident, receiving a 30-day jail sentence and $100 fine. The controversial sentence divided the Ames community, angering Jacobs’ family and others who believed Clague should have been convicted on more serious charges but supported by some who thought a harsher punishment would be overly retributive for a young man having to live out his life knowing he caused a death.
The outcome frustrated Story County Attorney Jessica Reynolds, whose office was unable to pursue a class D felony charge of hit-and-run resulting in death, punishable by up to five years in prison, because of how the law was written and interpreted in the case. Since then, she’s been working to persuade state lawmakers to tweak it by requiring drivers to alert police as soon as they realize they may have caused an accident resulting in injury or death. Last year, when Emmalee’s Law was first introduced, it stalled in the House Judiciary Committee. But earlier this month, it survived a funnel deadline and is now eligible for debate in the full chamber.
Part of the reason for the bill’s delayed progress is because of concerns that forcing someone to report an accident resulting in injury or death might violate their Fifth Amendment privilege against self-incrimination.
“In essence, it’s like if you don’t turn yourself in, then you’re a criminal,” state Rep. Chip Baltimore, a Boone Republican who until recently chaired the Judiciary Committee, told the Ames Tribune in January. “I think it’s got some constitutional concerns about your privilege against self-incrimination, so I’m trying to evaluate that constitutional provision.” He added, “Though I understand the specific intent for this particular situation, when you pass these laws they often apply to other situations too, and it’s a lot of those other situations that I’m trying to be cautious about.”
Baltimore did not respond to messages from the Informer asking if he had since evaluated the constitutionality of the law and what other situations he had in mind. But courts in other states have evaluated similar questions about hit-and-run laws — dating as far back as 1935, when Indiana’s Supreme Court upheld the state’s Hit-and-Run Drivers’ Act requiring a driver to report an accident and render assistance to their victim. In fact, as the Indiana Law Journal wrote that same year in an analysis of the case, “Though the act at bar was never before constitutionally tested by the Indiana Supreme Court, other state courts have long before been confronted with the identical problem” and the “overwhelming weight of authority supports the present case.”
The case before the court then — Ule v. State — involved a man convicted of a felony for failing to stop his vehicle to help another man after hitting him, and for failing to notify police of the accident. He appealed, arguing that the law violated the state constitution’s privilege against self-incrimination for requiring him to report the accident (as well as the US Constitution’s 13th Amendment prohibition of involuntary servitude for requiring him to assist his victim — a contention that wasn’t taken very seriously).
“It is true that the identity of the driver may furnish a definite link in a chain of evidence that may tend to convict him of reckless driving,” regardless of whether the accident itself was criminal, the Indiana Law Journal wrote. “[Y]et if this is to be taken as a valid objection, then to require the driver to register his automobile and name before he can drive upon the highway is also unconstitutional. The validity of the latter requirement is beyond argument.” The state Legislature, “in the exercise of its police power,” the Journal went on, “may enact statutes for the preservation of public safety, health or morals which may sometimes impinge upon the liberty of individuals by restricting their use of their property or abridging their freedom in the conduct of their business.”
Kelly Meyers, a lobbyist for the Iowa County Attorneys Association who declared the group’s support for Emmalee’s Law in early February, cited two other, more recent court rulings at Reynolds’ request in a recent email to state Rep. Ashley Hinson, R-Marion, an early supporter of the proposal, in an effort to address lawmakers’ concerns about potential constitutional problems. (Despite the concerns, the bill has bipartisan support; it was introduced by Lisa Heddens of Ames, a Democrat like Reynolds, and Zach Nunn, a Bondurant Republican who replaced Baltimore as Judiciary Committee chairman this year.)
Meyers first mentioned California v. Byers, in which the US Supreme Court ruled in 1971 that because hit-and-run statutes are primarily regulatory, rather than criminal, in nature, and because they place the burden of compliance on the public at large instead of a specific group of suspected criminals (such as illegal gamblers), there was not a substantial infringement on the privilege against self-incrimination. The decision was close, with four of the court’s nine justices dissenting, variously arguing that a hit-and-run incident would fall under the crime of property damage and that the court’s plurality ruling was too broad and should have focused solely on the fact that Jonathan Byers, the defendant, was convicted for failing to stop and report his accident.
The state of California appealed the case federally after the state’s supreme court affirmed a district court of appeals decision siding with Byers — in contrast to the Indiana Supreme Court’s decision decades earlier — ruling that a driver’s privilege against self-incrimination applied if they believed that disclosing their identity would establish a link in a chain of evidence resulting in a separate but related criminal conviction, and rejecting the notion that a driver waived their Fifth Amendment rights by using public roads. As the Washington University Law Quarterly explained in 1970, the district court based its decision largely on US Supreme Court cases holding that the Fifth Amendment “is a defense to a criminal prosecution for violation of registration statutes requiring a person subject to their provisions to provide information which might be self-incriminating under other statutes.” However, the journal also noted that 47 other states at the time had hit-and-run laws similar to California’s, 14 of which had been challenged on self-incrimination grounds. All of the laws were upheld, either because courts found that drivers waived their Fifth Amendment privilege by implication or that there was insufficient risk of self-incrimination for reporting an accident that may lead to a conviction under a separate statute.
In her email to Hinson, Meyers also cited People v. Guzman, a 2011 decision by a California appellate court similarly finding that a law requiring boat operators responsible for accidents to identify themselves did not violate their constitutional protection against self-incrimination because such accidents were regulatory rather than criminal in nature.
If Emmalee’s Law were to become law, Reynolds told the Informer, it would simply re-establish the original intent of Iowa’s hit-and-run statute. She believes that was substantially changed during her office’s prosecution of the Benjamin Clague CyRide case when a model jury instruction was given requiring that “the defendant had actual knowledge of the accident” at “the time of the accident” — a stipulation that isn’t in the current law’s plain language, nor clarified by state court decisions, she said. “Our concern is that this change in the jury instruction can be used to justify that it is better for a driver involved in an accident to leave the scene than to stay and report,” Reynolds said. “Because all one needs to do is assert they had no knowledge of the collision at the time impact occurred. What about 10 seconds after impact? Is this knowledge? What if someone else in the car noticed and pointed it out to them a few seconds later? Was this knowledge at moment of collision?”
According to an affidavit filed by Story County, Clague “admitted to hearing an audible thud when he drove through the intersection” where Jacobs was later found before she died of her injuries at Ames’ Mary Greeley Medical Center. At his next scheduled stop, Clague exited the bus to examine it, before rerouting his bus to avoid returning to the intersection. “Text messages from Clague the day of the incident show he was aware that a fatality had occurred and he had just ‘went two hours thinking I was involved,’” the affidavit stated. “Clague met with a friend the day after the fatality and told him that he thought he had struck and killed Emmalee.” Despite this, he didn’t report an accident to police; he wasn’t arrested until over a month later.
Iowa’s hit-and-run statute, Reynolds said, is meant “to encourage the reporting of accidents for public safety,” and her interest in clarifying it is for that reason, not because of any animus toward Clague. To further illustrate her point, she posed a hypothetical scenario.
“Someone is driving on a rural road in a large truck and feels a bump on a gravel road. It’s dark, and they look around and don’t notice anything out of the ordinary. But later they get home and see blood on the bumper. They didn’t do anything wrong. No crime has occurred. Just a possible accident, and good public policy is stating that the driver should report to law enforcement that they may have been involved in an accident so that if someone is out on a road bleeding, the proper authorities can investigate and render aid if need be.
“At the time of ‘collision’ they didn’t have the ‘knowledge’ that they hit someone. But they realized later that they may have been in an accident, and we want them to call that in. However, under the current jury instruction, since they didn’t know at the moment of impact they were involved in an accident, then they have no duty to report. They saw blood later, thought there might have been an accident, and ignored it. And no one went out to that road to see if someone was injured or what might have occurred.
“This doesn’t seem to be what the reporting statutes were trying to accomplish.”
