In thinking about what to talk about … there are so many topics it’s hard to know where to start for a brief 10-15 minute presentation.

Certainly the Hit/Run Epidemic should be a topic.  Columbus, and Ohio, has had its share of hit/run fatalities in the cycling world over the past couple years:

- Jeff Stevenson –        5/21/2010 [Columbus]

- Trent Music               11/16/2010 [Columbus]

- James Trammel       9/20/10 [Clermont]

- Kristina Godinez –   6/10/11 [Columbus]

- Martha Miller           12/23/11 – [Logan County]

A quick google search of “hit/run epidemic” reveals stories about such things in Chicago [blaming illegal aliens], LA, Houston, and Miami

As I pointed out in a prior piece - the question of WHY is easy – because a) You Don’t Get Caught or b) You Don’t Get Caught While You’re Still Drunk or c) You Don’t Have Insurance or d) You Have Outstanding Warrants or, the BIG one, e) Even if they DO catch you, you’re not likely to do much time for killing someone… 30 days is apparently the going rate in Columbus…

Another topic is What Cyclists Do Wrong - 

- Run Stop Signs – in 2010 two of the 11 cyclists killed were experienced riders who were struck when they attempted to cross from a bike trail to a road

- Night Riding – This is an ongoing problem – riding at night without appropriate gear. In 2010, the 3 hit/run deaths each involved riders who were unlit.  In 2011 there were four fatal crashes in the dark.  In three the riders were unlit – in one, Martha Miller had full lighting AND a reflective vest as she rode home from her job as an Amish school teacher two days before Christmas…

What Can Help?

To me, CLEARLY, UNEQUIVOCALLY we need to EDUCATE MOTORISTS that Cyclists have the right to use the roads – virtually ANY road in Ohio-  at any time day or night, in any traffic conditions… Until cyclists are simply accepted as one bright thread in the multi-colored “fabric of traffic” we will continue to be seen, and treated, as second class citizens by motorists, and even police officers in many jurisdictions…

In addition to educating motorists, we CLEARLY & UNEQUIVOCALLY need to EDUCATE CYCLISTS – Riders need to understand that once you cross the line – the line that separates the world into two parts – the parts ON the roadway and the parts NOT ON the roadway – once you cross that line and go ON the roadway, you have to take this driving business very seriously.  This means riding LEGALLY – obeying traffic control devices, NOT running red lights and stop signs, NOT weaving through traffic, lane splitting and otherwise behaving as a kid on a toy, not a serious vehicle operator.

Motorcycle training is excellent for this, as I have written many times… the “SEE” approach has the rider looking several seconds up the road for potential problems, developing a plan to deal with those problems and implementing that plan early enough so as to AVOID the potential problems – for cyclists this means SEEING the “door zone ahead and moving out early enough that you are not likely to get zinged by an unseen door opener – or plotting a line through traffic early enough to make an effective, NON-scary left turn… In the motorcycle world, you are taught that this is a constant, ongoing dymanic process which can change second by second… for the cyclist, it’s more foot by foot -

The Ride of Silence is an outstanding event – not a race, just a slow, quiet casual ride which allows riders to MAKE a POINT – we are HERE and we’re NOT GOING AWAY – while quietly remembering, and honoring, those who lost their lives on the roads….

Let’s be careful out there…

Steve Magas

On Feb 27, 2012 Ms. Fernandez plead guilty to one count of “Failure to Stop After an Accident” – a 3rd degree felony. She was sentenced yesterday to 30 days – yes… you read that right… THIRTY FREAKING DAYS. You can read John Futty’s story in the Columbus Dispatch here – I have had the honor of representing Jeff’s Mom in the civil case – this sentence, frankly, makes me sick…

This case illustrates why folks hit… and run…

On May 21, 2010 Jeff Stevenson  hit by a car and left for dead.  He was struck around 230 -3am.  By the time Jeff’s body was found around 5am by a family on their way to move a family member to Georgia, it had already been a few rainy hours since the crash.  Any potential “crime scene” had been driven over by many cars and washed away by the rain. Police found some smashed bike and car parts at the scene, but little else was useable.  Of course, by running away Amber was able to avoid helping Jeff, or perhaps help make his last moments on earth more comfortable… but that’s another story…

Police did get a tip and were able to track down Amber’s car at a body shop. They retrieved her windshield from the garbage of the body shop and matched Jeff’s DNA to DNA found on the windshield. MOre than a year after the crash Amber was charged with two crimes – Leaving the Scene and Tampering with Evidence. She was NOT charged with any homicide crimes as police could not piece together what happened. Of course, by the time police knew anything about Amber Fernandez anything that MIGHT have been in her system had long since flushed out…and any evidence from the scene was gone.

Amber was driving home from her shift as a bartender at a local sports bar when she hit and killed Jeff.

Her defense was the Oh So Typical Hit/Run Defense - stop me if you’ve heard THIS one before – She claims that while she knew she hit “something” she didn’t know she’d smashed into “someONE” – that she’d hit a human being… and she didn’t stop because…er.. well… we will talk about that below.  However,  her lawyer in his “Sentencing Memorandum” DOES however, admit that as Amber was driving home an “unfortunate event” occurred – yea… thanks a lot for saying THAT much buddy…

The Sentencing Memo also leaves unexplained something else – why, after hearing media reports that a young man had been killed by a hit/run driver around the very same time she was driving home, and that this young man had been killed on the very same road she used to get home, why this poor, distraught, remorseful woman didn’t call police, turn herself in, invite police to look at her car or do ANYTHING but try to hide eviden ..er.. get her car fixed quick before anyone checked it out …

Ahhhh… but the Memo does note that Amber “…cooperated with the investigation fully…” Of course, such cooperation didn’t occur until AFTER the police got a tip, found her car at the body shop being all fixed up, grabbed the smashed windshield from the garbage and matched up the DNA from Jeff Stevenson to the bits of his body that remained embedded in Amber’s windshield … yea, after all that Amber was oh so very cooperative…

The Sentencing Memo fails to explain whether Amber was aware of the ghost bike which was placed at the scene in a well-publicized ceremony, or how she felt driving by that bike day after day after day after day, or whether she changed her route to avoid seeing the ghost bike or being haunted by what she had done –  really, the Memo fails to give us any reaction Amber had to finding out she had killed Jeff… other than to say she has been diagnosed with “post traumatic stress disorder” and “depression” and “panic attacks”- poor baby… The Memo also fails to note that Jeff Stevenson’s diagnosis remains the same… dead.

I mean, what did she THINK in those days after the crash – “Oh, that must have been somebody ELSE who hit that poor young fellow on the bike – couldn’t have been ME!”  Did she see all the momentos Jeff’s friends left under a tree at the scene?  The skateboards and stuffed animals and photos of Jeff flying on his board, and the handwritten notes on the bike?  Did she see the Dispatch coverage, the TV Coverage  or Jeff’s Obituary-  - was there no “buzz” at the bar she worked at about this horrific death?  A young man struck and left for dead, a grieving Mom - such a horrific scenario –  …  what did she think about THAT?  The Sentencing Memo doesn’t say …

Neal Young’s words from “Ohio” come to mind…

“What if you knew her
And found her dead on the ground
How can you run when you know?”

So, Amber Fernandez, after hitting and running and failing to report and being caught by police and pleading guilty to a felony hit/run, now ponies up to the bar and lays out her tale of woe to the judge –  Her Sentencing Memo describes her oh so stressful life history filled with divorce and moving around and OSU classes and how she now has PTSD caused by her killing Jeff Stevenson… she lays it out and she begs for “community control” – no jail at all. At least the judge wisely denied THAT request, anyway.

Amber’s Sentencing Memo sheds some light on her “version” of what happened - According to the Sentencing Memo she “remembers looking over her left shoulder and then reaching for her cell phone lying on the passenger seat next to her when SOMETHING HIT HER SUV breaking the windshield” – The lawyer’s Memo goes on to tell the court that Amber was uncertain whether she’d “hit a pole a deer or what” but “being a single female in a dark desolate area at 250am she continued home” – he described it as a “freak accident”

wow… just wow…

There’s more wrong with that description than I can begin to yell about – I think my next book will be on hit/run killings and the killers who  get off easy – we can call it  ”A Pole, A Deer, or WHAT” -

Since when does crashing your car when you are a “single female” give you the right to leave the scene? This was NOT some “desolate area” as Amber argues – this was Sawmill Road & Bright, near the bridge that goes over I-270 -a VERY well-lit busy multi-lane roadway with any number of businesses nearby – Was it raining?  Probably – but rain doesn’t give you the right to sneak away from the mess you’ve made either…

And… of course… since her cell phone was right there where she was looking for it when she clobbered, and killed, Jeff Stevenson – why not whip that baby out and call 911 and say “Help, I am a single female in a desolate area and SOMETHING HIT MY CAR” or whatever … I’m sure the cops would have been on it very quickly… but leave the scene?  With Jeff’s DNA embedded in your windshield?

So Amber pitches “Community Control” to the court – begging for no jail time –  and does a song and dance about how much killing Jeff Stevenson has hurt her… which is, of course, confirmed by her mom… Again, from John Futty’s story in the Dispatch:  ”…Fernandez’s mother, Stacy Russell, said her daughter has suffered panic attacks and threatened suicide over the incident….”

Amber, at least, had to listen to Mrs. Stevenson talk about her pride and joy, Jeff, and his two passions – art and skateboarding.  I don’t think she really “got” the depth of a Mom’s pain, though – dealing with the loss of her only child – a delightful and loving young man she had raised alone for 20 years – a beautiful spirit with energy and creativity in abundance – I just don’t think Amber got that… in fact, “loss” is not the right word – in fact, it’s a horrible word – hit and run death – killing – the cowardly act of an idiot driver…

No one thinks Amber Fernandez intended to hit Jeff Stevenson, but it FEELS like murder to a parent – a Mom who now has to live with the images of that scene  that her brain creates- images of her beautiful young man dying, helpless and alone, in the rain, on the side of the road all because some idiot yaywhoo wasn’t watching where she was going and doesn’t want to stop and see what she smashed into…

I wonder what Amber felt when, as described again by John Futty, Mrs Stevenson’s “… voice caught as she told the judge that he was “left by the side of the road, unattended and alone,” by a driver who “made no attempt to assist or call 911.””

The kicker though was when the defense argued that a polygraph expert had examined Amber – From John Futty’s story: “… The defense hired Randy Walker, a former Columbus police officer and certified polygraphist, who found that Fernandez was being truthful when she said she wasn’t aware that she had struck a bicyclist….”

Well, that makes sense, right.  I mean OF COURSE she didnt KNOW she hit a live human being –  SHE WAS DRIVING A TWO TON BOWLING BALL DOWN THE ROAD WHILE LOOKING FOR HER CELL PHONE - so she was in no position to “see” ANYTHING or anyone in front of her, let alone what she had hit – she was, in essence, driving blindfolded… had she STOPPED she would have very quickly discovered that yes, she had indeed hit a human being… so her action of leaving the scene enabled her to “honestly” state that she didn’t know she had hit a cyclist…

So what happened to her?  WEll, Common Pleas Judge Guy Reece sentenced Fernandez to 30 days in the Franklin County jail, fined her $5,000 and placed her on probation for three years. He also suspended her driver’s license for three years.

Laa…dee… freakin… da -

The judge apparently decided a 6 month or 1 or 2 or 3 year sentence was what, too harsh?  Jeff’s MOM certainly got a life sentence in this deal – 30 days, to me, is ridiculous… the ONLY message sent by that sentence is RUN BABY RUN if you happen to hit “something” … because if you stick around you are going to get nailed for vehicular homicide, but if you RUN AWAY like a coward, and whine about your increased stress, you might get 30 days…

It would have been interesting to know when Amber DID become aware that she had killed Jeff… and how long she hid that fact from police as she tried to get rid of the evidence…

I represented Jeff’s mom in the civil case. Fortunately, we were able to resolve that with Amber’s insurer without litigation. In cases where people lie to their insurance company about what happened, the insurer has the right to deny coverage – which the insurer here initially considered… we were able to convince the insurer that this would be a very very bad idea, and they paid up the policy limits… so no civil suit was required, nor would one have served any real purpose, except to cause more pain to Mrs. Stevenson and cause her to spend more time and money dealing with Amber Fernandez, and probably lead Amber into bankruptcy, where the most we would have recovered would have been the policy limits anyway.

I understand very well that this is a tough case for the prosecution. You can’t indict someone for vehicular homicide if you can’t prove exactly what happened in the crash, and why.  Running away prevented that.  You also cannot make Amber testify in the criminal case – so there was no way of knowing WHAT had happened in the crash.  The crash scene was hours old by the time  the police arrived, and debris had been scattered up by passing vehicles.  It would have been virtually impossible to prove what had actually happened to cause the crash.  Amber’s pre-sentence statements in her Sentencing Memo are the words of her lawyer, not subject to truth finding or cross-examination.  But… they are all we’ve got…

So, again, WHY do people hit..and run? Some run because they can avoid BIG time prison and only spend 30 days in jail… Some run because they hope to flush the juice out of their system before facing up to reality or giving a urine sample to cops … Some run because they have other legal issues about which they do not wish to converse with police officers… Some apparently run because they are single women in desolate areas who hit” something”, but are afraid to stop, or even call 911 from their cell phone  -  ALL of these folks have one thing in common – they are common, ordinary cowards who are afraid to face up to the consequences of their actions and who deserve, in my mind, to be treated as thugs and thieves and given stiff penalties – when folks realize that the penalty for running is greater than the penalty for sticking around, more folks will stick around instead of running away …

In this case  Amber’s lawyer argues that she “…cooperated with the investigation fully…” He leaves out the words “… once cops were able to track her down and confront her with evidence that she killed Jeff Stevenson…”  She, in fact, failed to “cooperate” at all by failing to call 911 at the scene, failing to stop and help Jeff, failing to call police after it became abundantly clear that her car hit and killed a person – I mean what did she do, wash the blood off the windshield the next day and run over to the body shop??

Sheeeeesh… Sick… I think… is too calm a word for my reaction to Amber’s approach to sentencing and the 30 days she  will hopefully serve… hopefully they are the most miserable 30 days of her life – which will do nothing to help  Mrs. Stevenson cope with the next  several thousand miserable days and nights she is facing…

By Steven M. Magas, Ohio’s Bike Lawyer[1]

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

Is Cycling “Safe?”

Statistically, we know that riding a bike on the roadway is a VERY safe thing.  While there are 30-40,000 motorists who die on our roadways each year, the number of cyclist fatalities has dropped considerably from a high of 1000 or so in the mid-1970s to below 700 in 2008.  While motorcycle and pedestrian deaths are UP, cycling deaths are DOWN despite millions of new riders in this latest “Bike Boom!”

One reason for this decrease in cyclist deaths nationwide, I’m sure, is that the demographics of the “typical” cyclist involved in a fatal crash have totally flip-flopped since 1975.  Back in the 1970′s, MOST cycling fatalities involved kids – people under the age of 16 – which meant that riders were somewhat unpredictable.  There were a lot of “Dart Out” cases where children on bikes would suddenly appear on the roadway after darting out from a driveway.

Today, virtually all cycling deaths involved adults – indeed, adult men.   In 2009, almost 90%, 9 out of 10, of all cycling fatalities nationwide involved people OVER the age of 16, and 87% of those were men. The average age of a rider killed on the road today if over 40.Today’s adult riders are more likely to treat operating a bicycle on the roadway the same as driving a car.  They stay in their lane, know the rules of the road and don’t act in stupid or unpredictable ways – most of the time, anyway.

Think about it – how many kids do you see riding their bikes all over town today?  When I was a kid in the early 1970′s that’s what we did.  We left the house in the morning on our bikes and maybe came home for lunch.  We rode our bikes everywhere – all over town.  Today, there are many more people in the world and many, MANY more cars.  However, there aren’t all that many new roads.  So, all those new people and new cars are sharing pretty much the same road space that was available to us 30+ years ago.  Traffic DENSITY is way up – there are simply more cars packed in per mile than ever before.  Today, safety concerns, increased traffic and the busy schedules of today’s youth demand that mom and dad DRIVE them around to their appointments.

In addition to this phenomenon, there is an increased interest in fitness in adults today.  In the mid-1970′s the only “older” [i.e., adult] folks you saw riding bikes on a regular basis were the hard-core cyclists.  Today, more and more adults are re-discovering the joy and fun of cycling and adding a fast ride to their fitness regimen.  Bike Trails are well-used throughout the country. Many adult cyclists are also taking it to the streets to go fast and stay fit.  You almost NEVER see a bike trail die from lack of use!

So, What Should You Do If You Are In A Crash??

Here are a few tips that can help BEFORE you’ve been in accident.

• Carry a cell phone. The cell phone can easily be a life-saver. All cell phones will make 911 calls even if it doesn’t have active service.   You can also use today’s cell phones to document the scene by taking a LOT of pictures of the scene, the dog or car/bus/truck that got you, your injuries, the address, the dog’s owner, witnesses, etc. It can also record the GPS data from the crash site. [See my discussion below of The World's First Bike Law App].  Also, save your GPS data, which can provide incredibly helpful information about your crash!
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• Carry Identification & Insurance Information. It’s a good idea to copy your driver’s license and then write or type your emergency contact information, health, auto and homeowner’s insurance information, blood type and any medical conditions or allergies that you have on the back. Laminate the copy and keep it on your person when you ride. Also, remember to keep it up to date if there are any changes.   Carrying your health insurance information may seem obvious, but why do you need your auto and homeowner’s info?  Well, your AUTO policy may pay some of your medical bills or even your entire claim if the motorist that hit you is underinsured or you have a lot of out of pocket medical expenses.  Your HOMEOWNER’s policy will protect you if someone says that YOU did something wrong, or negligent, and damaged their person or property!
• Carry a pen and paper. You may need to exchange information with other people at the accident. Get names and numbers of as many witnesses as possible in case they leave the area before the police arrive.

IF YOU ARE IN A BIKE CRASH…

• Don’t Move. MOST of my clients are hard-core cyclists who want to jump up and check on their bikes right away.  Don’t do it.  Just lie there and do a self-assessment.  Have you lost consciousness?  Can you feel/move your arms and legs?  Are you bleeding?  Do you have pain?  Sharp pain? Shooting pain? Be able to describe how you are feeling to paramedics and EMT’s who will arrive.

• Call 911. Always wait for the police to respond to the accident scene so that an official report will be filed. Do not let anyone talk you out of calling the police.  Many times cyclists do not realize that they have been injured until several hours after the accident. By then, it may be too late to identify the at-fault driver or properly document the crash if you let him/her drive away.  At every “CSI” fan knows, once you leave the “crime scene” it cannot be duplicated. Many drivers who cause accidents will initially apologize and accept blame for the accident at the scene, but later, after they have time to consider the ramifications, will deny that they were negligent [and deny that they ever accepted responsibility]. This is particularly true in bicycle crashes.  The police accident report should include the statements of all involved, as well as all other witness statements.

• Seek medical attention. Cyclists tend to be very self sufficient and tough.  They view accepting EMT care as a sign of weakness. Many will try to turn down offers of medical attention.  DON’T DO IT.  Accept help this time.  Let the EMT’s treat you.  This is proof that you were, in fact, injured and the medical records generated by the medical provider will help establish the extent of your injuries. GO to the E/R.  Follow up with your family doc or a specialist if suggested.  DO what your doc says to do.
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• Take Photos.  Take several photos from different angles and lighting of your injuries as soon as possible after the accident.  You can’t have too many photos!!  Photograph the scene, the bike, the other vehicle or dog, your wounds.  The grosser and yuckier the better!  If there is a camera at the scene, have someone start taking photos right away, before things get moved around.  Get GOOD pix – not blurry, fleshy blobs.  Good photos, good lighting, in focus, detailed.

• Keep a Journal. Keep a journal (injury diary) of your physical symptoms starting immediately after the accident and make entries every day.  Call if your “Lawyer Report.”  This will keep the other side from trying to get it down the road if you end up in litigation as communications with your lawyer are privileged.

• Don’t fix your bike right away. Riders tend to be tinkers and self-sufficient.  They want to get back to RIDING and get the bike fixed quickly.  You need to keep your bike and clothing in the condition that it was in after the accident.  Get the property damage assessed by an expert.  Get a report of the damage AND of the “value” of the bike.  Under the law of many states, your property damage recovery cannot be greater than the value of the bike.  Thus, if an insurer says your “used” bike [four year old Paramount] was only “worth” $100.00, they will try to cap your property damage claim at $100.00!  Have a competent professional shop make an independent assessment of your bicycle and gear.  You may need to get your friendly shop owner to write a “report” which outlines the basis of his/her opinion as to the value of your bike.

• Stay Organized. Keep every single piece of paper relating to the crash, your injuries and your recovery organized.  You will need them either in handling the claim or when you meet with an attorney.  Keep the discharge summaries, bills, “EOB’s” from your insurer and especially any type of film, X-ray, MRI, or disk with digital images!  Often, you don’t have to be a radiologist to see the problem in an X-ray, or feel the associated pain.  [Can you find the fractured clavicle or the screws in the ankle in the pictures below?  The ankle surgeon drew a line showing where the bone was fractured in this bike/truck crash!]
• 
• 

• Call an Experienced BIKE Lawyer. As an avid cyclist and a trial lawyer with almost 30 years of experience handling serious injury and death claims, I know the risks cyclists face and understand the complexity of these claims.  A crash can turn your life upside down as you try to get your bike fixed, get your medical bills paid and keep the collectors at bay.  Dealing with insurance adjustors who demean and minimize your claim can be incredibly time-consuming and frustrating.  Once hired, a good personal injury lawyer will take care of EVERYTHING related to your claim.  I handle all communications with the obnoxious insurance company, fully investigate the crash and obtain all documents needed to maximize your recovery.  I know what types of arguments insurers usually make in bike crashes and I know how to deal with them.

The World’s First BIKE LAW APP

We are currently working on developing the world’s first BIKE LAW APP for your cell phone.  I will be discussing this in future posts – we are in the VERY early development stages at this point, but… we hope to provide you with information about the Law of riding a bicycle on the roadway along with a series of applications to help you if you are in a crash including

- GPS location of Crash
- Place to save Crash Photos
- Instructions for gathering Data and recording it at the scene
- One button access to The Bike Lawyer which will send me an email about the crash and call my cell phone.

Once the app is developed an “in play” we will let you know how to download it!  We are also developing a “cell phone friendly” version of the website, so you can access the Bike Lawyer’s page on your cell phone without using a microscope to read it!

I hope you never need to implement any of these tips, but it always helps to be prepared. Good Luck and Good Riding!

Steve Magas, The Bike Lawyer
BikeLawyer@me.com
513-484-BIKE [2453]
www.OhioBikeLawyer.com

The Magas Firm
7733 Beechmont Ave., Suite 210
Cincinnati, OH 45255
Fax – 888-797-7097

Ms. Dale wrote: “… Pushing the envelope also makes it smart to take a close look at insurance. Most cyclists don’t understand that auto, homeowners’ and umbrella policies may help if a car hits them, says Steven M. Magas, a Cincinnati lawyer who works with avid cyclists….”

The BLS article has been a popular one.  I wrote it for local publication but it was picked up by Adventure Cycling for inclusion in their national Cyclist’s Yellow Pages.  You can still read it here.

In short, the article recommends that cyclists need to get their act together… Cyclists should have insurance to cover them if something should happen while they are on the road.  Cyclists should NOT expect that “the other guy” is going to have insurance, or enough insurance to cover their claim.  Cyclists should maintain adequate auto coverage, with sufficient “UM/UIM” limits [Uninsured/Underinsured Motorists Coverage] to protect themselves in case the other guys does NOT have adequate coverage.

MED PAY ISSUES

Also, check out your auto policy’s “Med Pay” limits.  ”Med Pay” is short of “Medical Payments”- called “PIP”  coverage in no-fault states – and is another important coverage.  Med Pay acts like a mini health insurance policy if you are whacked by a car.  However, you should ALWAYS use your health insurance first.  Today, when you get to the E/R after a crash, the Billing Department will ask immediately for your AUTO policy info.  Seems like an odd request  - why do they need that info?

Well, your health insurer has negotiated a deal with the E/R.  The $1500.00 E/R bill may only result in a $900 payment from your health insurer.  If the E/R Billing Department can get that bill to you AUTO carrier the auto carrier will pay 100% of it, or $1500.00, without any markdown or negotiated lower rate.  E/R’s, doctors and those who regularly find themselves dealing with crash victims are slowly learning to get the bill paid by the Auto carrier, not the health insurance carrier.

YOU, however, should not let this happen. You should make sure your bills are paid by your health insurer.  You should remain in control of that “Med Pay” money – you may need it to pay “co-pays” or the 20% you owe under an “80/20″ health insurance policy.  The E/R’s and other care providers will fight you on this – they want $1500, not $900 – but you have the right to have your bills paid the was YOU want them, and to have all the bills submitted to your health insurer.

DON’T BUY NATIONWIDE AUTO INSURANCE

Another point on auto insurance and “Med Pay” – BEWARE OF NATIONWIDE INSURANCE.  I usually don’t mention specific companies by name here – but Nationwide bears special mention because of its position on “Med Pay” claims that is VERY detrimental to all cyclists.

In every other “bike case”  I’ve ever handled with ANY other insurer, the Med Pay clause covers bicycle riders.  Nationwide, however, says “NO” to cyclists.  Nationwide claims that its Med Pay coverage is limited to “pedestrians” and that cyclists are not pedestrians.  Therefore, Nationwide refuses to pay the medical bills of bicycle riders who are whacked by cars.    No word on whether Nationwide would cover, skateboarders, rollerbladers, horseback riders, pogo stick users, kids on tricycles, babies in baby carriages or other “non-pedestrians.”

I am currently litigating this with Nationwide, so I may have more to report down the road.  There is a court of appeals decision in Ohio which indicates that, for insurance coverage purposes, the word “pedestrian” means more than simply people walking around.  For purposes of Uninsured/Underinsured Motorist coverage, the words “pedestrian” includes a person on a bicycle, according to a 2004 case.  Nationwide, apparently doesn’t feel this case is controlling…

WHAT’S THE DEAL WITH HOMEOWNER’S COVERAGE?

What happens if YOU goof – you run a red light and hit a car. You clobber a pedestrian who has the right of way in a crosswalk. Now, someone wants to bring a claim against YOU for your careless riding. Who pays THAT claim?

Many cyclists are unaware that their HOMEOWNER’s policy will cover them in this situation.  Just as you have coverage in case your neighbor slips and falls on your property, your H/O policy provides coverage for all types of “negligence” – including negligently riding a bicycle and causing property damage or injury.  Again, check your policy limits to make sure you have enough coverage!

ARE YOU CARRYING AN UMBRELLA WHEN YOU RIDE?

An “umbrella” is a special type of policy which covers over the top of your other insurance.  Umbrellas, as you might have guessed, are only used on “rainy days” – OK, poor pun, but somewhat applicable.  Your auto policy covers for virtually all claims that arise in your lifetime, but what if you are in a situation where you have a very big claim – and all the usual coverages are used up?  An umbrella kicks in only during that unique situation – a once in a lifetime situation.

Umbrellas come in BIG coverages- usually a$1,000,000 or more. However, because they only come into play in very rare circumstances, the cost of such coverage is fairly low compared to other coverages.  Many professionals use an umbrella to protect them in case of malpractice or claims of professional negligence, however, umbrellas can apply to your auto coverage too.  If you do something stupid and cause someone else to have a million dollar claim against you, the umbrella kicks in.  If someone else does something to cause YOU to have a million dollar claim… you also have source of funds to pay that claim.

Be careful here – and talk very specifically with your insurance professional about your needs and your lifestyle.  I had a case in which my client, a CPA, and her husband, also a CPA, had purchased an umbrella.  She had a very bad crash caused by someone with very little insurance. They had a large UM/UIM policy, which we were able to get, and they also had an “umbrella.” However, for whatever reason, their insurance agent talked them into signing a document that WAIVED umbrella coverage for AUTO claims!

That’s right… they did everything I recommended… bought a large UM/UIM policy, good Med Pay, and purchased an Umbrella policy — except that they told the Umbrella insurance company that they didn’t want the umbrella to apply to auto crashes… they didn’t even realize what they were giving up when they signed this “waiver” – soooo…..they were stuck with a large claim that was not fully paid.

BOTTOM LINE[S]

Bottom line 1 – THANK YOU WSJ for spelling my name right!

Bottom Line 2 – Cyclists should NOT be buying Nationwide Insurance.

Bottom Line 3 – TALK to your insurance agent about your H/O, Auto & Umbrella needs!

Darke County popped up on my radar in June 2011 when a cyclist was struck and killed by a car along State Route 127.  The media reports from the crash seemed pretty clear – “… Preliminary investigation revealed a blue Chevrolet truck, driven by Patrick J. Jackson, 47, of Greenville, was traveling north bound on US 127, approaching State Route 242. His vehicle traveled off the right side of the roadway striking a bicycle, ridden by Richard A. Monk, 51, of Ansonia….”

Reports stated that the motorist was taken to the hospital, treated and released.

Nothing further was reported about the case until December, 2011, when The Daily Advocate reported that Patrick Jackson was being charged with two counts of “Aggravated Vehicular Homicide” and a DUI count.

Yesterday, in an odd twist, the Daily Advocate reports that Mr. Jackson pleaded guilty – to a much lesser charge  of misdemeanor vehicular homicide.

What happened here? Why were the felony charges dropped? The charges of Aggravated Vehicular Homicide, with a DUI count, six months after the crash certainly imply that there was some forensic testing done that revealed some sort of alcohol or drug issue.  Jackson treated at the hospital after the crash. There is no report that I have found which explains why the prosecutor dropped felony charges and accepted a plea to a misdemeanor.

My understanding is that Mr. Monk was a full-time cyclist who rode his bike to work through virtually any weather – lit up and conspicuous at night or in inclement weather.  Here, he was run down in broad daylight, from behind, on a gorgeous summer day…

I have requested the full police report, photos, crash reconstruction and drug testing as part of a public records request to Darke County. I’ll keep you posted on what I find and we’ll try to shed some light on this very sad case.

Cox was charged with a number of crimes – the most serious being aggravated vehicular homicide. Since she failed to stop, drove to her home, dropped off her kids and returned, she was charged with a felony –  leaving the scene as well as child endangerment.  She plead not guilty to all charges and filed a motion to challenge the drug testing – testing which indicated she was driving was an amazingly high BAC of 0.284%.  The case was set for trial.  Prior to the trial she withdrew the motion.

On the morning of trial, negotiations got under way and Cox ended up pleading guilty to a number of crimes, including aggravated vehicular homicide.  Following that plea, I suggested that YOU, readers, could become involved by sending letters to the prosecutor expressing your views on sentencing – many of you did as some 80 letters were received.

Cox plead guilty… but… let’s just say she was STILL less than forthcoming when she told the court she was pleading guilty.

Below is the transcript of the plea hearing from January 23, 2012.  On pages 19-20 you can read what Ms. Cox told the court about the crash… and her “drinking.”  She indicated she had had “a glass” earlier in the day… yet somehow blew a 0.284% after killing the judge.  You can watch Ms. Cox here.

KELLY COX GUILTY PLEA HEARING 1-23-2012

After the Plea was made the Judge set the matter for sentencing on February 25, 2012.  The court ordered an investigation.  The family of Judge Henry prepared to speak out, really, for the first time in this matter.  You can read the entire 45 page transcript from the sentencing hearing below.

Cox Sentencing Transcript

Judge Henry’s family spoke eloquently, forcefully, in urging the court to impose the maximum sentence.  His younger sister, Polly, spoke first, expressing the outrage and anger the family felt – not as much about the crash as about Ms. Cox’s continuing, ongoing lies about how much she had to drink. Polly discussed the various reasons why society punishes criminals and advised the court that the family was not looking for retribution but DID feel that taking Ms. Cox away from society so she could not hurt anyone else was a very valid reason to impose a stiff sentence.  Mostly, though, Polly hoped that a long sentence would lead to rehabilitation for Ms. Cox.

Judge Henry’s brother, Jim, spoke about the night of the crash – how he and his brother were ready to head to the airport to pick up their mom when they found out the plane was delayed. Judge Henry then went for a bike ride while Jim went for a run.  Jim then had to tell their mom about the crash and Judge Henry’s death.

The Judge’s daughter, Kim, spoke next – emotionally and powerfully. She described how Ms. Cox’s refusal to take responsibility had hurt the family, and made the healing process “… as difficult as possible…” by lying every day since the crash, and lying to their face during the plea hearing.  She wondered why Ms. Cox left her dad on the side of the road to die…”What kind of person doesn’t even call 911?”  She talked about the deep loss of losing a father – and the pain she felt when she thinks about how much he would be missing.

The Judge’s son, Adam, told the court what it was like to get that call from him Mom telling him his dad had been killed. He talked about the huge hole in his life, and the pain and loneliness – about how Kelly Cox’s actions have created pain during what should have been an incredibly happy time as he had recently proposed to his girlfriend.  Adam read to the court a very moving letter he wrote to his Dad – saying things that anyone who lost anyone close has also said – how he wished he had asked his Dad more questions and talked to him about his life.

When it was the defense’s turn to talk it was all about excuses – how Ms. Cox had had a rough life -how she had been “self-medicating” for years. “There’s not a person in this courtroom who would not be affected significantly” by what Ms. Cox went through “…years ago…”   Gary Cox, Kelly’s husband,  addressed the court and suggested that she is a “good person who has made a tragic mistake…” while offering sympathy for the Judge’s family.  Cox’s sister also stood up to apologize to the Henry family.

Kelly Cox then briefly spoke – her attorney asked that she be allowed to turn around and address the family sitting in the gallery behind her rather than face the court [a tactic which, I suspect, the family found to be cheesy, overly dramatic and only for effect].  Cox said she was sorry – admitted “Was I drinking? Yes I was” but claimed she would have never “maliciously” hurt anyone and would never “let someone stay on the side of the road.”

Except… of course… she did… hit someone … and leave them dying on the side of the road…

Did she act “maliciously?” That’s certainly open for debate – drinking oneself into a 0.28% BAC stupor, putting your kids in the car and then trying to drive goes far beyond careless and negligent and shows a complete and callous disregard for the lives of others.

The judge then spoke to Ms. Cox. He did not mince words. He noted that it was her drinking and driving that brought her to the court – despite the fact that her husband was with her and could have driven her home and despite the fact that she had a cell phone and could have called a cab, or a friend.  The court said, “…like most people who drink, it is all about you. You drink because you wallow in self-pity and thus do not take responsibility for your actions…you look at this death as a horrible accident  in which the role you played is minimal. You feel you are a victim of circumstance…Your explanations minimize your responsibility for the death.”  After reading the pre sentence report the judge told Ms. Cox he had “…concluded that you have no real remorse for your actions, only excuses…” The judge spoke for over 10 pages on the record…

In the end, Judge Mitrovich imposed a 9.5 year prison sentence on Kelly Cox.  The court noted that a failure to impose  consecutive sentences would “…demean the seriousness of the offense and would not sufficiently punish the offender, nor protect the public…”

Judge Mitrovich’s statement to Kelly Cox should be used as a model by judges, and bicycle advocates, in future cases in which a motorist makes stupid excuses for killing an innocent rider.

So, the criminal case is done – Kelly Cox is serving time at the Ohio Reformatory for Women. According to the State of Ohio’s “Offender Search” website, her sentence expires on August 22, 2021 – at which time Judge Henry will still be dead, his family will still be grieving but Kelly Cox will be a free woman…

The case against Kelly Cox was strong. As you will recall from my earlier posts here, here and here, on May 23, 2011,  Ms. Cox was driving her big Pacifica on Rapids Road in Geauga County with two children in the car when she rear-ended Judge Henry’s bicycle.  She was later tested for alcohol and the 0.28%BAC figure was revealed.  After a bit of time the indictment was handed down and included numerous charges, including Aggravated Vehicular Homicide.

The case seemed to drag through the court system, as many serious cases do.  Ms. Cox filed a Motion to Suppress the Blood test results and tried to have the case moved to a different jurisdiction.  The court said No.

The case came up for trial on Monday January 23, 2012 – a fairly quick trip through the system, really.  On the morning of trial instead of calling witnesses, the various parties huddled together to discuss resolving the case without a trial.

From the family’s perspective, I’m sure there were many conflicting issues.  Of course, you want Ms. Cox to face up to what she did – to have the evidence presented and have the world see the strength of the case against her.  You want her claims and denials to be shredded by the testimony and the testing and the science.  You want the public to see that your family member did NOTHING wrong – NOTHING to cause this horrific crash – that his death was solely, completely, undeniably caused by the drunken misbehavior of Ms. Cox… but… a criminal trial is an awful thing.  Your deceased son, or brother, is criticized and blamed for causing his own death – “experts” from the defense try to pin the blame not on Ms. Cox but on the cyclist.  Other “experts” try to argue that Ms. Cox wasn’t really drunk or impaired, or that the cops screwed up the evidence or the investigation.  The family has to sit and listen to all of this, and hope the jury isn’t befuddled by the aggressive defense tactics…

So it’s a trade-off … these plea deals.  The family trades a little to avoid the pain and horror of going through it again… step by step… photo by awful photo… You trade certainty and being “done” to avoid the risk of a bad jury verdict or years of appeals.  In the end, Judge Henry’s family decided to accept the “deal” – here, the deal was solely about the extent of the possible punishment, not about avoiding liability.  As today’s newspaper article said: “… Cox answered “guilty” to each of seven charges named in an August indictment: two counts of aggravated vehicular homicide and two counts of endangering children, and one count each of driving under the influence and reckless operation of a vehicle….”  You can read the plea agreement here.

Sentencing will be set for sometime in February.

So how can YOU get involved?

Well, one of the things that a judge can consider in sentencing is the impact of the crime on the “community.” Victim impact statements are generally accepted for sentencing.  Some courts accept input as to the impact of a crime on the “community.” Here the cycling “community” should speak out and provide the court with its view of how drunk drivers who kill or maim cyclists “impact” the cycling community.

You can send  your letters to

Geauga County Prosecutor

Attn:  Cindi Wellman

231 Main Street, Suite 3A

Chardon, Ohio 44024

Or they can be faxed to her at 440-279-1322

I hope Judge Henry’s family can find some peace through this process.  Nothing can bring back the one you lost.  No jury verdict results in the waving of a wand and bringing that person back to life.  Our system of justice is designed to dig out the Truth and punish those who violate our criminal laws… that’s all… there’s no provision in the law for helping the victim get their life back… I know that Judge Henry’s family will remain in the thoughts and prayers of ALL Ohio cyclists …

Steve Magas

Alum Creek Road in Columbus is not for everybody.  In fact, most cyclists would agree that it’s not the best road for riding.  It’s narrow, busy, fast, debris and gravel laden and, in 2008, was the road on which cyclist Tracey Corbin was killed.  Brent Nimmo uses Alum Creek when he has to.

In 2010, on “Bike To Work” day no less, Brent was stopped by a cop while riding on Alum Creek Drive and given a ticket for violation Ohio Revised Code Sec. 4511.55 – Ohio’s version of the AFRAP law.  The lessons Brent learned in 2010 helped him immensely a few days ago, when he was stopped again, this time by a State Trooper, for “impeding traffic” on Alum Creek Road.  A bit of a history lesson is needed to help you understand what happened in this most recent stop.

AFRAP 

AFRAP, of course, means, in bike parlance, “As Far Right As Practicable.”  Most states have some form of the AFRAP law.  Ohio’s AFRAP law actually says this:

4511.55 Operating bicycles and motorcycles on roadway.
(A) 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.

The word “practicable” is often misinterpreted by folks as “possible” and some cops, and judges, believe bikes must be operated as far to the right as possible.  The law doesn’t say as far right as “possible” though, but as near to the right side of the roadway as practicable. So what does “practicable” mean?

Tickets under 4511.55 have been pretty rare.  Cops usually don’t look at a cyclist and stop her/him for not riding to the right far enough.  Rather, this AFRAP provision historically comes up after a cyclist is hit and is bringing a claim against the errant motorist.  Some insurance lawyer begins to look at the law and stumbles across 4511.55.  In fact, this AFRAP argument pops up in virtually every “bike case” I handle for a cyclist who has been struck by a car!

The word “practicable” is not defined in Ohio law.  I did a search of the Ohio Revised Code this morning… the word shows up in almost 375 different laws.  In many cases it is used to designate a time -X to be done “as soon as practicable” after Y.  Other “practicable” phrases include:

- “to the extent practicable”
- “so far as practicable”
- “whenever practicable”
- “as uniform as practicable”
- “strictest practicable limits”
- ” as the court finds to be equitable and practicable”
- “as close to the roof as practicable”

… and so on and so on and so on and so on…

I have fought many battles over the word “practicable.”  In Ohio, and in most state, the ordinary and usual meaning of a word is what courts look to when trying to figure out what lawmakers meant to say in a law that has a somewhat looseygoosey or ambiguous meaning.  I have always argued that, for 4511.55 purposes, “practicable” means “safe and reasonable.”

Clearly, I argued, the legislature meant for bicycles to use the roadway – they defined bicycles as “vehicles” and wrote several provisions about operating bicycles on the roadway.  Bicycles have been legally ridden on Ohio roads for over 100 years. I then argued that the Ohio legislature, in its infinite wisdom, would NEVER pass a law that mandated that bicycles, or ANY vehicle, be operated in a manner that was unsafe or unreasonable.  So, I argue, the word “practicable” MUST contain rather subjective elements of safety and reasonableness and must NOT mean “as close to the edge of the road as possible…”  Bicycle operators do NOT have to operate bicycles through potholes, over glass and debris or through the gravel-ized remains of the former “edge” of the road surface!

In cases in which the defense argued that my cyclist violated the AFRAP langauge, I have often retained an expert witness to describe why my client’s chosen lane position was “safe and reasonable” given the conditions – road width, gravel, potholes, debris, glass, drop-off, parked cars, etc etc etc.  I argued that “safe and reasonable” was the test for “practicability.”  These experts were often LCI’s or others who have taught safe, “effective” cycling to the masses.

In 2005 or so, the Board of Trustees of the Ohio Bicycle Federation began discussing revisions to Ohio’s Bike Laws and revising 4511.55 came up.  In the end, we decided to push for a section (C) to this law – a section which would begin to explain a bit about what the word “practicable” meant.  The “(C) Section” was adopted into a package of Bike Law reforms which was introduced as House Bill 389.  OBF fought for this law – many of us testified in Columbus and cyclists in Ohio gained MANY benefits when the bill passed, UNANIMOUSLY, and was signed into law in 2006.  The history of the Better Bicycling Bill can be viewed here.

So…. what is this mysterious “C Section?”  Here is is:

“(C) This section does not require a person operating a bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway 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.”

 As you can tell, the OBF listened and we made sure the C Section adopted the “reasonable and safe” standard to define “practicable” while listing a FEW, but not all, of the conditions that may give rise to a cyclist lawfully NOT riding towards the right edge.  One of the conditions is when the lane is too narrow for a bike and passing vehicle travel safely side by side.

In earlyl 2010 a friend of mine & OSU Law School Class of 1982 classmate, Doug Morgan, represented a Columbus cyclist who had been ticketed for an AFRAP violation of 4511.55 while “taking the lane” on High Street.  Doug’s not a trial lawyer, but did an admirable job winning the “Take The Lane” case by laying the lane out in open court and marking off with a tape measure the various elements. Eventually, the cop writing the ticket had to concede that the lane was “too narrow” to be shared by bus and bike side by side and the court threw out the ticket.

Now, enter Brent Nimmo – Case 1.  Brent was also cited for an AFRAP violation.  He contacted me about his case and talked to him about 4511.55(C) and Doug Morgan’s elegant defense victory.  I also referred him to The Selz Case and other “impeding traffic” arguments.  Brent did the measurements, took the photos and approached the prosecutor prior to the trial to make his argument.  In light of the cogency of Brent’s argument, the prosecutor elected to THROW OUT the ticket and drop the case.

Brent then went on a crusade to get “Bikes May Use Full Lane” signs put up on Alum Creek Road – including PURCHASING a sign.  The photo in the beginning of this article shows off some of his efforts.  When Brent rides, he has a copy of 4511.55(C) blown up and mounted to his bike like a license plate.  He carries my contact information &  a summary of the Selz case with him… it all came in handy this past week!

This past week Brent was stopped again on Alum Creek Road… this time by an Ohio State Highway Patrol Trooper.  He was told he was “impeding traffic.”  Brent has been waiting for such a moment ever since I first told him about Steve Selz… he proudly told the Trooper, “I’m not impeding traffic… I AM TRAFFIC…” and went on the explain the arguments I made in the Selz case, 4511.55(C) and his prior ticket – which he also carries with him.  Brent and the Trooper apparently had a very good conversation about bicycling and the law [Brent asked if the Trooper wanted to talk to his Bike Lawyer] before the Trooper let him go without a ticket.

So… there you go… Prosecutorial Discretion at the street level in action.  I hope the Trooper was truly just concerned for Brent’s safety initially.  Like I said, Alum Creek is not for everybody.  I also hope that the Trooper left with a good understanding of the “impeding traffic” law in Ohio and a better understanding of what cyclists face in Ohio every day!

I think “I AM traffic” makes a good T-Shirt Slogan, eh?

You can listen here.

I took second billing that day – to Pulitzer Prize winner Doris Kearns Goodwin!  I’ll take THAT any day!

Enjoy!