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Editor’s Note: Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the US Virgin Islands. The opinions expressed in this commentary are his.

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Danny Cevallos: Johnthony Walker faces an indeterminate sentence if convicted

Tennessee law holds bus drivers to a different standard of care -- but not highest, he says

CNN  — 

Following a tragic crash in Tennessee, bus driver Johnthony Walker has been charged with five counts of vehicular homicide, reckless endangerment and reckless driving.

Danny Cevallos

As the eyes of the nation watch this story unfold, it’s important to take note of how Tennessee’s laws may determine Walker’s fate.

Vehicular homicide in Tennessee is reckless killing while driving an automobile, resulting from conduct creating a substantial risk of death or serious bodily injury to a person. It’s a Class C felony, carrying a sentence of three to 15 years. However, if a defendant has prior convictions for driving under the influence or vehicular assault, or has a blood-alcohol reading of .20%, the crime may be aggravated to a class A felony, which ups the potential sentence to a minimum of 15 years, and a maximum of 60 years.

Walker has also been charged with reckless endangerment, which is reckless conduct that places or may place another in imminent danger of death or serious bodily injury. When committed with a deadly weapon, such as a bus, reckless endangerment is a Class E felony, which carries a sentence of one to six years.

If convicted, any defendant from any state has to worry about whether he will receive consecutive or concurrent sentences. Concurrent means all sentences run at once. Consecutive means a defendant only serves one sentence at a time. In Tennessee, a judge may order sentences to run consecutively only if certain criteria are met, e.g., the defendant behaved with no regard for human life. As you can imagine, defendants universally prefer concurrent sentencing.

The point is Walker could have a potential sentencing range of three years … to practically forever.

For many, if he were deliberately speeding, and that reprehensible conduct killed five children, no sentence will be too long.

And yet nearly every driver engages in that same reprehensible conduct every day. We’re all horrible drivers. We’re worse than ever. We’re speeding, we’re texting, and we’re crashing.

Of course, there’s a good reason we expect bus drivers to be different from the rest of us: They are driving kids. But we should also be aware that parents are out there too, speeding and driving recklessly with their own precious cargo in the back seat.

Speeding is an amorphous offense under the law. Technically, going 1 mph over the speed limit is a violation, but you’d have a hard time finding anyone convicted of going 1 mile over the limit, or finding someone who thinks going 46 mph in a 45-mph zone is morally wrong. Going 50 mph over the speed limit is a different story. Speeding occupies a broad moral and criminal spectrum, and we’ve all been guilty of it at one point or another.

You might be saying: “Bus drivers drive our children. They should be held to the highest standard of care.”

Except they’re not. At least not in Tennessee.

“Common carriers,” such as train drivers and airplane pilots, are in the business of moving other people around. Traditionally, a common carrier must exercise the “highest practical degree of care” in transporting humans.

In Tennessee, school buses – in fact, school systems in general – do not have the same duty of care as a common carrier, according to that state’s Supreme Court.

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    A school bus driver in the Volunteer State is only obligated “to exercise reasonable and ordinary care under the circumstances.” The Tennessee high court has also said that when a school bus is transporting young children, the driver must “exercise special care proportionate to the age of the child and its ability, or lack of ability, to care for itself.”

    Crashes can kill or maim any student, irrespective of the student’s age or ability.

    The point is, you may think that bus drivers such as Johnthony Walker should be held to the highest duty of care for all children, no matter their age or abilities. It’s an understandable sentiment. The problem is that Tennessee’s Supreme Court – and the law – completely disagrees with you.