The criminal trial for 47-year-old Robert Owens, who fatally drove a box truck into 29-year-old Heather Lough while she rode her bicycle to work at the New York Botanical Garden last April, has been delayed for four months while his lawyer argues against the constitutionality of the Right of Way Law.

Owens's case marks at least the 25th time the law, which made failure to yield a misdemeanor offense, has been challenged on the grounds of its constitutionality since it was introduced in late 2015. And while the top penalty is relatively low—up to thirty days in jail and $500 in fines—Lough's lawyer says quashing the charge could have a major impact on the civil case and damages for Lough's family.

Right of Way convictions are binding in civil court. And until this challenge is resolved, Owens is protected from sitting for a deposition for the civil case. In the meantime Lough's husband, Andy Skinner, is "definitely frustrated," lawyer Daniel Flanzig said.

City Hall says the Right of Way law is key to its Vision Zero initiative. Previously, unless an NYPD officer witnessed a crash, most drivers had to be intoxicated in order to face consequences.

"[The law] is a vital tool to hold accountable drivers who seriously injure or kill pedestrians with the right of way while driving dangerously," a de Blasio spokesperson said.



A ghost bike memorializing Heather Lough at the Bronx intersection where she was killed. (via Facebook)

Of the 25 closed cases that have involved a constitutionality challenge to date, judges have ruled the Right of Way Law unconstitutional three times.

These challenges hinge on the argument that a person cannot be charged criminally for a crime that she was not aware of committing. Because drivers are charged under the Right of Way Law even if their intentionality or awareness of committing a violent act cannot be proven, the law violates due process, the argument goes.

"The very fabric of our criminal justice system is that an accused person stands before a court innocent until proven guilty," said Queens Judge Gia Morris last June, upholding a constitutionality challenge in favor of Isaac Sanson, a school bus driver who fatally struck 85-year-old Jeanine Deutsch as she crossed the street in Forest Hills in 2014.

It's true that most criminal convictions hinge on a court's assessment of the perpetrator's mental state—whether he was aware of, or intentional about, the crime. Whereas in civil cases, a judge must only decide that the perpetrator failed to be "reasonably prudent"—a lower burden of proof.

But safe streets advocates argue that the lower burden of proof applies to plenty of criminal charges, including drunk driving.

"Intentionality is only one type of crime and it's the most commonly encountered type of crime," Steve Vaccaro, an attorney who often represents victims in traffic cases, told Gothamist. "But everyone who goes to law school learns that there are different levels of culpable mental states. Intent to commit a crime is a high level of culpability. But you can merely be reckless and that is sufficient to be convicted of a number of crimes including manslaughter."

Vaccaro added that he is not surprised that the Right of Way Law is frequently challenged. As a misdemeanor, it is tried in the same courts where New Yorkers are charged with quality-of-life crimes like public urination and stoop drinking.

"There's a lot of constitutional law written to protect people against unfair criminal prosecution," he said. "So the lawyers who are defending in misdemeanor court know their constitutional law."

Elizabeth Isaacs is a Legal Aid Society attorney in the criminal appeals bureau. She is currently representing Sanson, whose case is in appeals, and advised the lawyer on Owens's case.

"Obviously we don't have anything against the goals of Vision Zero, which I think are very laudable," she told Gothamist. "But the way that they've gone about writing the law, it takes what is really just a traffic accident, which our society deals with through civil lawsuits, and criminalized it when there is no proof of intent or criminal negligence."

"Even a misdemeanor conviction can really just hamper someone's life in so many ways," Isaacs added. "The collateral consequences can be so severe, especially for someone who makes their living driving."

Lough was biking down Southern Boulevard on the morning of April 27, 2016 when Owens made a left turn out of the Botanical Garden and onto Southern Boulevard, police said, hitting her with the front of his box truck.

According to the criminal complaint against Owens, Lough had a green light, and the right of way.

Owens has also been charged with Section 1146 of the Vehicle and Traffic Law, a violation, and reckless driving, a misdemeanor. While 1146 can result in permanent license suspension, it is not criminal.

"Right of Way is probably the strongest initial charge and the most likely to get a conviction," Flanzig predicted.

Drivers were charged with the Right of Way Law 25 times between January 1st and September 6th of this year, according to the NYPD. The charge was leveraged 42 times in all of 2016.

"I suspect these challenges are part of a new law establishing itself," said Transportation Alternatives spokeswoman Caroline Saponaro. "For us as advocates it's been reassuring to [see it] stand."