HOW TO WIN AN AFRAP CASE –
A Close Look at Doug Morgan’s Columbus, Ohio Slam Dunk Victory
By Steven M. Magas, Ohio’s Bike Lawyer
Early in 2010, my friend, and one of the smartest lawyers I know, Doug Morgan, defended a young cyclist in Franklin County Municipal Court. The cyclist was cited for “taking the lane” on High Street – i.e. riding towards the center of the lane rather than hugging the white line. The officer cited him for a violation of Ohio’s “AFRAP” law, as adopted in the Columbus, Ohio, City Code. Doug’s trial strategy should serve as a model for lawyers and cyclists alike in these cases.
Experienced cyclists know that the safest way to ride on narrow city streets is to “take the lane” by moving over into the middle of the lane. Riding too close to the white line of a narrow lane invites motorists to pass without leaving the lane, creating risk, tension and danger. Many years ago I unabashedly self-titled this the “Magas Phenomenon” based on my experiences interacting with passing vehicles – if you don’t move into the lane motorists act like there is a sheet of glass on the center line and if they think they can pass you without breaking that plane of glass, they do it all day long! Once they break that plane, though, they seem to give you plenty of room.
In 2006, I helped the Ohio Bicycle Federation’s legal group draft amendments to Ohio law which address narrow lanes, and allow the cyclist to take the entire lane in such cases. These proposals were contained in the 2006 Better Bicycling Bill. I was one of many who testified in support of that bill before the Ohio Legislature. The bill eventually passed unanimously, was signed into law and went into effect in September 2006. Columbus’s traffic code was subsequently amended to adopt the new state-wide bike law changes. It appears that the cop in Doug’s case didn’t understand, or refused to accept and apply, this relatively “new” law.
From Doug’s blog comes this description of the events:
“On the evening of December 2, 2009, [the cyclist] was riding south on High Street between Nationwide Blvd and Spring St. It was 10:30 at night and raining. [The rider] was riding in the middle of the lane. A police officer pulled up next to him and directed him to move over to the right side of the lane. [The cyclist] refused and said he didn’t feel safe there and that he had the right to ride in the middle of the lane.”
The officer turned on his flashing lights, stopped the rider and cited him under Columbus City Code Section 2173.04(A). This code section tracks state law and states: “Every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable obeying all traffic rules applicable to vehicles and exercising due care when passing a standing vehicle or one proceeding in the same direction.”
Doug agreed to represent the rider for free. Had he charged a reasonable hourly rate for his legal work, the final bill would have been several thousand dollars. Doug and I both understand that, as lawyers who ride and who care about cycling and cyclists, we can afford to, and should, offer up our rather unique skill set and knowledge base from time to time to advance important arguments and causes. For example, I handled Steve Selz’s famous “impeding traffic” case through trial and the court of appeals for free – here, Doug spent hours preparing for, and trying, this case without getting paid a dime.
Doug’s preparation reflected his very intelligent approach to handling AFRAP cases. He enlisted local bike advocates John Gideon and Jeff Stephens for help with research and Jeff, an experienced LCI, was going to provide expert testimony. Doug and his “helpers” measured the width of the lane where Michael was cited (11 feet, 3 inches). They also measured the width of the corrugated metal sewer grates along the curb (25 inches), took photos of the lane and the grates, and measured the width of several automobiles, including the side mirrors (most are around 7 feet).
The trial went forward with the prosecution’s first witness, the police officer. The officer testified that Michael was riding in the middle of the lane, was warned, and then cited under 2173.04(A).
Doug’s cross-examination of the officer was brilliant and should serve as a model to any lawyer, or cyclist, who ends up in the middle of one of these cases.
Doug realized that the officer truly believed that cyclists are safest when riding close to the curb in all circumstances. The cop believed he was protecting the rider by trying to get him out of the center of the lane. As most of my readers understand, this is what a LOT of people [including inexperienced cyclists, jurors and judges] think. As a trial lawyer, you don’t want to necessarily “attack” a witness who truly believes he is doing the right thing – but you DO want to effectively cross examine him in a subtle, yet creative and powerful way, while trying to get the witness to see the error of his ways, without whacking him over the head, figuratively, of course – and that’s exactly what Doug’s tenacious preparation allowed him to do.
Doug had the officer read aloud subsection (A) of the pertinent code section – City Code Section 2173.04. The section under which the rider was cited. Doug then had the cop read the “(C) Section” of the law. He read as follows:
“This section does not require a person operating a bicycle to ride at the edge of the roadway or within a marked bike lane when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway or outside of a marked bike lane include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so, including if the lane is too narrow for the bicycle and an overtaking vehicle to travel safely side by side within the lane.”
The (C) Section is what the Ohio Bicycle Federation’s legal group wrote and added to State law in 2006. It has been added to the pertinent City Codes of most Ohio cities. Those of us reviewing the AFRAP law within the OBF group felt it was necessary to add some depth and breadth to the typical AFRAP rule. The “P-word” – “practicable” – continues to be undefined in the Ohio Revised Code – and the (C) Section was designed to show SOME of the situations where riding far to the right in the lane would be inappropriate, unsafe and dangerous.
After having the officer read the (C) Section into the record, Doug laid a tape measure on the floor, showing the 11’3” lane width. He asked the police officer to stand by the tape with him. Doug asked the officer exactly where in the lane he thought Michael should have been riding? The officer said “…about 1 1/2 feet from the curb…” Doug countered – “So you think that bicyclists should be required to ride over these corrugated metal sewer grates?” Doug showed the officer him a photo of one of those dangerous grates. “Yes,” he replied, “I think it’s safe for them to do that.”
[Now, cyclists know that these grates are very hazardous, especially when wet. Doug let this go for now.]
Doug marked off 1 1/2 ft of the tape and described his follow up cross-examination as follows:
“OK, officer, how much space in the lane does the cyclist need to ride safely in this location?” After much discussion, the officer agreed that 3-4 feet should be sufficient to allow for the width of the bicycle and the cyclist and room to maneuver around road hazards, so I stepped off another 3 feet. “And what do you think a safe passing distance is for an automobile to pass a bicyclist?” I asked the officer. “I always give a bicyclist about 6 ft clearance,” he replied. (Boy, don’t we wish all motorists were this generous?) So I stepped off 6 more feet. The officer and I were looking down at what remained of the lane width–less than a foot. “Officer, how wide is your cruiser?” I asked. “Don’t know,” he replied. “Do you think you could squeeze it through there,” I asked pointing at the 9 inches remaining on the tape measure. “No,” he replied. ” “No more questions, your Honor,” I said. The prosecution rested.
Doug then asked the court to dismiss all charges. The court agreed.
Doug’s approach was graphic – using the officer’s own statements and opinions to visually “prove” that cars and bikes cannot co-exist in a lane without sufficient lane width. Using the (C) Section the way it was designed to be used, Doug was able to not only prove a point and set an excellent precedent, but provide a very useful “teaching moment” for the officer and his superiors, the prosecutor and the judge which should serve Columbus cyclists very well for years to come.
Sadly, in one of my cases, a motorist driving an SUV and towing a homemade landscaping trailer hit my client, who was riding to the right on a narrow road – no ticket at all in this one – check out that trailer and the officer’s depiction of the crash in the graphic below – can you say “unsafe passing distance?”
Great Job Doug!
Good Luck & Good Riding
 Steve Magas is an avid cyclist and Ohio trial lawyer who has handled more than 300 “bike cases” – cases in which riders were injured or killed due to errant motorists, loose dogs or faulty products. Steve is the co-author of “Bicycling and the Law” and a contributing author to that epic tome, “Bicycling Accident Reconstruction & Litigation.” Steve can be reached at 513-484-BIKE  or at BikeLawyer@me.com. You can read more about Steve’s unique practice at www.OhioBikeLawyer.com.
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