Washington Evening Journal

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Neighbors Growing Together | Oct 19, 2017

‘Discretion is better than rigid rules’

Deputy pleads guilty to reckless driving in stop arm case
By Andy Hallman | Jan 09, 2013

Washington County Sheriff’s Deputy Kirk Bailey has pleaded guilty to a charge of reckless driving in relation to an incident on Nov. 12 in Washington. Bailey was originally charged with committing a school-bus stop-arm violation (first offense), but that charge was amended to reckless driving Monday through a plea agreement.
Upon accepting his guilty plea for reckless driving, Magistrate Judge Daniel Kitchen ordered Bailey to pay a $300 fine plus a surcharge of $105 and $60 for court fees. Bailey may appeal the fine within 10 days. His license will not be suspended.  
Assistant Jefferson County Attorney Patrick McAvan was in charge of prosecuting Bailey after Washington County Attorney Larry Brock recused himself from the case because of a conflict of interest. McAvan said his decision to amend the charge had nothing to do with the strength of the evidence in the case.
When asked if he thought he had insufficient evidence to obtain a conviction for a stop-arm violation, McAvan said, “I didn’t indicate that at all.”
McAvan said the different penalties between the stop-arm violation and reckless driving influenced his decision.
The Iowa Legislature passed a law in 2012 to increase penalties for passing a school bus with its stop-arm out. The Legislature instructed the Department of Transportation (DOT) to make a stop-arm violation a serious moving violation that triggers an automatic license suspension.
Under the new law, known as Kadyn’s Law, first-time offenders lose their license for 30 days and pay a fine of no less than $250 and no more than $675. The length of suspensions increases to 90 days for the second offense and 180 days for the third. First-time violators can be imprisoned for up to 30 days.
A first offense for reckless driving, on the other hand, does not carry with it a mandatory 30-day license suspension. Fines for reckless driving first-offense range from a minimum of $65 to a maximum of $625.
“The way I evaluated the case is to ask, ‘Is this violation serious?’ Sure it is,” McAvan said. “I’ve got kids. Is it serious enough that it should potentially compromise somebody’s employment? Based on the investigative reports I saw, I didn’t think so.”
McAvan said the fact that Bailey is in law enforcement had no bearing on his decision to amend the charge to reckless driving. However, he said he does take into consideration the effect that suspending a license has on a defendant.
“That’s something I consider all the time, which is, ‘How is it going to impact the defendant?’” he said. “If I am aware that the defendant’s employment requires a valid driver’s license, I’ll consider it, regardless of the employer.”
Washington County Sheriff Jerry Dunbar said today that whether or not a deputy is reprimanded is a personnel issue and that he does not make public comments on personnel matters.
“It goes in their personnel file and that’s where it stays,” he said.
McAvan said his decision to amend the charge was based upon his desire for the penalty to match the crime.
“I don’t want the punishment to be disproportionate to the offense,” he said. “I have to exercise some discretion on what the appropriate consequence is, because there is no discretion on administrative consequences [suspending one’s license] under the new school bus law.”
McAvan said that he appreciates the new stop-arm law, adding, “I thought for a long time the consequences for a school bus stop-arm violation in Iowa were not comparable to surrounding states.”
At the same time, he added that he believed “discretion is better than rigid rules.”
“That [plea] offer is one that I commonly make in these types of cases,” he said. “It’s a way for the defendant to take responsibility while not necessarily having the severe impact the DOT levies. In the past, there was discretion in how it was handled. Now there is no discretion by the DOT. That’s a one-size-fits-all type of consequence.”
McAvan said he recommended a fine of $300 in Bailey’s case. He did not recommend Bailey serve any jail time.
Bailey’s trial for the stop-arm violation was scheduled to commence Jan. 14. Bailey did not request a jury trial.  
The incident in question is alleged to have occurred Nov. 12 when a Washington school bus stopped in the 400 block of South Ninth Avenue in Washington at about 7:16 a.m. to pick up a student. According to court reports, the bus driver looked out the windshield of the bus and saw a sheriff’s car coming toward the bus and that it was not slowing down to stop.
The report said that Bailey was not looking at the bus driver, but appeared to be looking down at the computer in the vehicle. The estimated speed of travel was reported to be 20 mph. The report said the stop-arm and stop lights were activated.
Bailey was issued a citation on Nov. 14 for unlawful passing of a school bus. Bailey pleaded not guilty to the charge.
The trial was initially set for Dec. 18. On Dec. 12, McAvan asked for a continuance, whereupon the trial was rescheduled for Jan. 14.

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