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

Here, though, is a pretty nice list that compares the [alleged] reasons why the owners of certain types or brands of motorcycles don’t wave… enjoy!

[I apologize to whoever wrote this first - I've seen it on so many sites and places that I've lost track and can't credit the appropriate original, and obviously very funny, author]

Top Ten Reasons Not To Wave.

Top Ten Reasons Why Harley Riders Don’t Wave Back

10. Afraid it will invalidate warranty.
9. Leather and studs make it too heavy to raise arm.
8. Refuse to wave to anyone whose bike is already paid for.
7. Afraid to let go of handlebars because they might vibrate off.
6. Rushing wind would blow scabs off the new tattoos.
5. Angry because just took out second mortgage to pay luxury tax on new Harley.
4. Just discovered the fine print in owner’s manual and realized H-D is partially owned by Honda.
3. Can’t tell if other riders are waving or just reaching to cover their ears like everyone else.
2. Remembers the last time a Harley rider waved back, he impaled his hand on spiked helmet.
1. They’re too tired from spending hours polishing all that chrome to lift their arms.

Top Ten Reasons Why Gold Wing Riders Riders Don’t Wave Back

10. Wasn’t sure whether other rider was waving or making an obscene gesture.
9. Afraid might get frostbite if hand is removed from heated grip.
8. Has arthritis and the past 400 miles have made it difficult to raise arm.
7. Reflection from etched windshield momentarily blinded him.
6. The espresso machine just finished.
5. Was actually asleep when other rider waved.
4. Was in a three-way conference call with stockbroker and accessories dealer.
3. Was distracted by odd shaped blip on radar screen.
2. Was simultaneously adjusting the air suspension, seat height, programmable CD player, seat temperature, and satellite navigation system.
1. Couldn’t find the “auto wave back” button on dashboard.

Top Ten Reasons Why CrotchRocket Riders Riders Don’t Wave Back

10. Have not been riding long enough to know they’re supposed to.
9. Going too fast to have time enough to register the movement and respond.
8. You weren’t wearing bright enough gear for them to acknowledge you.
7. If they stick their arm out going that fast they’ll rip it out of the socket.
6. They’re too occupied with trying to get rid of their chicken strips.
5. They look way too cool with both hands on the bars or they don’t want to unbalance themselves while standing on the tank.
4. Their skin tight-kevlar-ballistic-nylon-kangaroo-leather suits prevent any position other than fetal.
3. Raising an arm allows bugs into the armholes of their tank tops.
2. It’s too hard to do one-handed stoppies.
1. They were too busy slipping their flip-flop back on.

Top Ten Reasons Why BMW Riders Riders Don’t Wave Back

10.        New Aerostich suit too stiff to raise arm.
9.         Removing a hand from the bars is considered “bad form.”
8.         Your bike isn’t weird enough looking to justify acknowledgement.
7.         Too sore from an 800-mile day on a stock “comfort” seat.
6.         Too busy programming the GPS, monitoring radar, listening to ipod, XM, and talking on the cell phone.
5.         He’s an Iron Butt rider and you’re not!
4.         Wires from Gerbings are just too short.
3.         You’re not riding the “right kind” of BMW.
2.         You haven’t been properly introduced.
1.         Afraid it will be misinterpreted as a friendly gesture

 

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!

You can read the motions here.

MOVE THE TRIAL

The motion to move the trial is pretty straight forward and claims that Judge Henry was such a good guy, and his death so widely reported, that Kelly Cox can’t get a fair trial.  The motion claims that Election data will show that Judge Henry garnered more votes than anyone else in Geauga County no real data, and argues that his constituents are, in essence, potential jurors.

These motions are rarely granted.  ”Big” criminal cases come up all the time.  Judges do not like to declare that the good people of county in which they were elected to the bench are not competent to hear big cases.  I believe a Visiting Judge from another county is hearing this case since all the sitting judges knew Judge Henry.  If I were a betting man, I would bet that the VJ will not move the case out of Geauga County… but we’ll have to wait and see.

MOTION FOR COMPETENCY HEARING

The second motion is more interesting.  Kelly Cox’s attorney has asked the court to have Kelly Cox examined to determine if she is competent to stand trial.

In support of this motion, Ms. Cox cites:

- a 20 year history of mental health treatment

- an emotional breakdown after she ran over Judge Henry

- an October 6, 2011 event where she was found “in a catatonic state.” During two days in the hospital  testing ruled out a stroke, it was decided that this was a “emotional breakdown”

- Cox has suffered four more similar events and her husband has taken over running the household and taking care of the kids

- Cox’s attorney has been unable to meet with her to prepare for trial

As a result of these circumstances, she is “presently incapable of appreciating the nature and objective of the proceedings” and is “incapable of assisting in her defense.”

The prosecutor has no objection to getting her tested.

So the argument here is NOT that she insane or otherwise emotionally disturbed at the time she ran over Judge Henry.  Rather, her attorney states that she has apparently come unglued after the crash and cannot assist in defending herself.  In light of this, the court ordered her to be evaluated by the court’s “Psycho-Diagnostic Unit.”

MOTION TO SUPPRESS

A motion to suppress comes up in virtually every criminal case.  The defendant argues that due to some glitch in the police investigation, or some rule that was not followed, the key evidence in the case should not be admitted.

In this case, the defense argues that the alcohol testing – basically the HUGE BAC number – be suppressed.   The rationale is that:

- Kelly Cox was “unreasonably and unlawfully detained” at the scene of the crash for over three hours.

- While at the scene Cox argues that she “did not exhibit indicia of intoxication nor smell of alcohol.”

- When she asked to go home, Cox states that she was told that police wanted her to submit to a blood test.  She said she was “scared” and did not want to submit to the test.  POlice told her they would get a warrant to draw her blood and she then “consented.”

Cox also argues that the State cannot prove that the blood testing was done in accordance with the various rules which must be followed for such things.

We will await the State’s response on the suppression motion.  Obviously, that’s a big one – without evidence of a huge BAC the primary charges go out the window.

Again, I’m no criminal lawyer, but when you hit and kill someone, then leave the scene and return some time later, I think authorities have the right to “detain” you… but what do I know…

His first criminal trial resulted in a hung jury.  As the  jury was being seated in his second trial, Miller elected to cut a deal.  He plead guilty to a slightly less charge of causing a death while driving recklessly and to a DUI charge. This past week Miller was sentenced to three [3] years in prison on the felony and six months on the DUI.

As with every story about cycling that hits the papers, the comments are often more interesting than the story.  In the case of Mr. Miller, his friends and apologists took up his cause.  One said:

“… I know the defendant very well and I would like to respond by reminding you that this driver had the equivalent of about 3 drinks in his system. Yes, he was over the legal limit but this was hardly the same as someone who consumes a heavy amount of alcohol and drives. Have you never had a literally 2-3 drinks with friends after work or on the weekend and driven home thinking you were safe to yourself & others? If you can honestly say yes, I applaud you; however, if you are like the majority of people who drink alcohol from time to time, then you understand how this could happen to anyone…”

So what about that claim – that he had the “equivalent of about 3 drinks in his system?” Gabe Spiegel testified on Miller’s behalf in the first trial.  He reportedly said Miller had consumed “…3 or 4 drinks over a 4-6 hour period…” and did not appear to him to be impaired… [Imagine that, one drunk says to the other drunk - "You don't look so bad... LET'S DRIVE!"]

Mr. Miller’s BAC was 0.109% when measured by police after the crash.  Spiegel said “… on the morning of the crash, he had met Miller after work, at about 1 a.m., at Sloopy’s Pub in Hilliard. He said they each had two 20-ounce beers and a shot of alcohol before leaving about 2:30 a.m. and driving to Spiegel’s apartment….”

So, after downing 40 ounces of beer and a shot of liquor what did these two do?  Why, they got into Miller’s car and drove to Spiegel’s apartment, of course.  I guess they decided again they were OK TO DRIVE.  We don’t know what they did at the apartment, but we can presume that they stopped in to pick up some liquor because their next stop was a BYOB strip club!

Spiegel said that  ”… At about 3 or 3:15 a.m., Miller drove them to Vanity, a strip club on Bethel Road that had a bring-your-own-alcohol policy at the time. Spiegel said Miller sipped a vodka and tonic at the club, but he didn’t see him drink anything else before they left around 5:15a.m….”

So, drinking 40oz beer plus some liquor from 1am to 2:30 am, driving to the apartment to pick up some liquor then hanging out at a strip club for TWO HOURS “sipping a vodka tonic” – a club which has no records of alcohol sales, since it doesn’t sell alcohol.

Is that the “equivalent of about 3 drinks?” I don’t think so.

Forensic toxicology is the study of poisons, toxins, for legal purposes.  Folks with a Ph.D. in Forensic Toxicology are often called into drug cases, DUI cases and cases involving alcohol, to give opinions on BAC levels and impairment.

Most such experts will testify that when you stop drinking your BAC continues to rise for about an hour.  If you don’t drink any more, your BAC will peak around an hour after you stop and then began to slowly come down.  [These are generalities, of course.]

The human body doesn’t like alcohol. It’s a toxin, a poison, which the body strives to eliminate.  This ability of the body to eliminate alcohol has been studied extensively.  For the “average” non-alcoholic a forensic toxicologist will generally testify that you can eliminate enough alcohol each hour to drop your BAC by 0.015%.  So you if are at, say, the legal limit [0.08% BAC] at midnight, and have stopped drinking for an hour, by 1:00 am your BAC will be around 0.065%.

“Regular” drinkers, though, have taught their bodies how to eliminate alcohol much faster – as much as twice as fast.  So an alcoholic who is at the legal limit of 0.08% BAC at midnight may be as low as 0.05% just an hour later.

We don’t know the sum total of Miller’s drinking on the night of this crash or when he started and stopped.  Did he start at 1am or was he drinking before that?  He allegedly had 40 oz of beer [3 1/3 12 oz cans] and a shot over 90 minutes initially, according to Spiegel, but what did they drink after?  Sip on a single vodka?  That doesn’t make sense.

We also don’t know if Miller was a regular drinker – was his body used to eliminating toxins so that it could do so quicker than the average guy?

If he stopped drinking at 2:30 am, drank nothing at the strip club and killed Steve Barbour at 6am, his blood alcohol would have peaked around 3:30am and then come down at a rate around 0.015% per hour until the crash at 6am.  A person who peaks at 0.12%, for example, will take roughly EIGHT HOURS to come back to zero- to eliminate all the poison.  That person will likely still be “impaired” for traffic law purposes two hours later as the .12% will have been reduced by 0.03% giving the person a BAC of around .09%.  Such a person may well “feel” like he is fine to drive since he is less drunk than he was two hours earlier – but he is still “impaired.”

Miller, who allegedly continued to drink at the strip club for the two hours or so that he and Spiegel were there.  Assuming that to be true, and that he stopped drinking when they left, Miller’s BAC would have continued to rise for an hour, peaking right around the time of the crash, before starting to descend.

Here’s a chart from a DUI lawyer’s webpage that helps understand drinking and BAC over time.  Note that toxicologists view a shot of liquor, a 12 ounce beer and a 4 oz glass of wine as the same thing – basically taking in the same amount of alcohol.  Note, also, that the weight of the drinker plays a significant role – a 200 pound man’s BAC is roughly HALF that of a 100 pound man when they drink the same amount over the same time.  Note, finally, that this chart presumes an “average” drinker’s elimination rate – people who drink regularly will have to drink MORE to reach the same numbers since they get rid of the alcohol faster.

Miller’s apologists online would like folks to think that this is A-OK and that he should not be seen as a “bad guy” for drinking, driving and killing.  Sorry… I can’t accept this.  When you take in alcohol no one has a gun to your head.  If you’re over the age of 9 years of age or so you are aware that alcohol can make you drunk.  These BAC charts are everywhere.  MADD has been on the “market” for more than 30 years now – telling everyone about the dangers of drinking and driving.  The fact that people regularly drink and drive does not make it less stupid, less “bad” and less likely to cause death.

You know that the law considers you impaired at 0.08%.  Why 0.08%?  Because forensic toxicologists almost universally agree that virtually everyone is “impaired” at that point.  Some are impaired with lower BAC’s but by the time you hit 0.08%, your brain is not functioning properly, your eyesight is impaired, your reflexes are impaired and your decision making is impaired.

Alcohol impairs every skill you need to drive a car safely.  Add to that the fact that Miller LEFT at 1:30am to party and was driving home at 6:00 am and you have a man who HAS to be tired as well as drunk… so…no… no sympathy here for Ed Miller.  He did the crime, now he’ll have to do the time.

The question of whether his “time” is appropriate for killing a man…well…. that’s a topic for another day…

That last paragraph may be confusing to some of you.  Let’s start, as we must, at the beginning.  In Florida, as in every state, if someone driving a car operates the car negligently and, as a result, a cyclist is hurt of killed then a “civil” claim arises.  ”Civil” claims are claims made by people against other people for money damages.  ”Criminal” cases are cases in which the “State” seeks to punish citizens for violating criminal laws – while fines may be imposed, the loss of freedom through forced incarceration is what separates “criminal” cases from “civil.”

The money damages in 99% of civil cases are “compensatory” damages – damages based on compensating the injured party, or the next of kin, for losses suffered.  The court instructs the jury that compensatory damages are NOT designed to punish the wrong-doer, but to compensate the victim for what was taken away.  Compensatory damages include medical bills, lost wages and other out of pocket expenses as well as money to compensate for pain and suffering and other losses.

In a limited number of civil cases, though, juries are permitted to consider imposing damages designed to punish the wrongdoer.  In Ohio, for example, the new punitive damages statute states that the plaintiff must prove “… (1) The actions or omissions of that defendant demonstrate malice or aggravated or egregious fraud, or that defendant as principal or master knowingly authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate….”

Punitive damages are awarded, then, in egregious cases – not your run-of-the-mill, “oops I was twiddling the radio dial when I hit you” cases.  Punitive damages have been argued and permitted in DUI cases.  However, according to the lawyers in the Caskey case, juries have never considered an award of punitive damages in a “Texting” case.  This is what is meant by the phrase “case of first impression.”

The other thing about punitive damages is that they are generally NOT covered by insurance.  You buy insurance to protect you if you are “negligent” or careless.  However, you cannot buy insurance to protect you if you act so egregiously and maliciously as to permit a jury to punish you buy awarding punitive damages.  This is another reason that punitive damages don’t pop up all that often in auto cases – unless you have a driver with “deep pockets” you will never collect them because insurance companies don’t pay “puni’s.”

In the Florida case, though, you’ve got all the ducks lined up in a row.  The motorist, Mr. Daniels, is a pharmaceutical rep and his employer, Astellas Pharma US Inc, owns the car that Daniels was driving when he hit and killed Caskey. You’ve got the deep pockets that can actually PAY punitive damages if the jury awards them even though Daniels has filed bankruptcy.  Bob Mionske reports that “The lawsuit contends Daniels was texting and intentionally took his eyes off the road, causing the crash. His conduct was so reckless, the lawsuit says, that it constituted a conscious disregard or indifference to the life, safety or rights of others, including Caskey.”

Daniels denies that he was texting. He claims he “…  texted before leaving home, tossed his phone in a box on his back seat and headed to work, unaware of the texted reply….”  His lawyer claims that Caskey is responsible for the crash because he was “… riding the low-lying bike…” –  a completely “legal” three-wheeled racing recumbent.

Caskey family lawyers were suspicious, though, since the crash occurred in broad daylight on a road with no other obstructions… why DIDN’T Daniels see the bike and rider?

Daniels says he wasn’t texting but… the electronic data suggests otherwise.

“… An eyewitness estimated he called 911 within 20 or 25 seconds of the crash. Collier sheriff’s records, set by satellite, clocked it at 9:04:38 a.m. Daniels’ phone records show he checked his voicemail at 9:03 a.m., texted between 9:03:01 and 9:03:59, and received a text message around 9:04:01….” So, clearly there is evidence in the record that supports a finding that the motorist was texting at the time of the crash – evidence which disputes the “tossed the phone in the backseat” defense…

Judge Hugh Hayes is pushing the envelope – in the right direction by my way of thinking.  Texting has been studied … a lot. Several studies indicate that texting is actually more dangerous than drunk driving.  That makes sense, eh.  Drunks are, usually, TRYING to drive right – they are trying to see, trying to control their cars, but their brains, eyes, reflexes and decision making is impaired.  Texters are, in essence, “controlling” a two ton bowling ball to move forward while blindfolded.  The texter can’t see ANYTHING that is in the car’s path.  The drunk loads himself up with poison and drives while impaired – the texter intentionally looks away from the roadway and “impairs” him/herself.

We will wait and see what happens in Florida… and hope that this way of looking at texting behavior expands to other states, including Ohio…

“…At 7:17 p.m. Friday, a man was crossing the road in front of 2039 South Erie Highway when he was struck by vehicle traveling north on Erie Highway, according to the Hamilton Police… The victim was transported to Ft. Hamilton hospital where he died. The victim’s name has not been released and the accident remains under investigation…”

UPDATE  - CYCLIST IDENTIFIED

The cyclist killed in Hamilton, Ohio has been identified as 66 year old Earl Taylor, of Hamilton [NOT "56 years old" as reported in all media reports]. The crash is still under investigation. No charges have been filed. The motorist stopped and helped until police and EMT’s arrived.  A website has been set up to help Earl’s family with funeral expenses.

No indication yet of exactly what happened. It’s been described that Taylor was “crossing in front of” the car at 2039 South Erie Highway when he was struck by a car traveling northbound.  However, Earl has been described to me as a guy who rode a lot, who knew the rules and who rode his bike every day as his means of transportation.  We’ll see how the report shakes out…

South Erie is also Route 4 – a busy, five lane roadway. 2039 is the address of Pizza Hut. A Street View shot looking towards the south is attached. THis is looking towards the oncoming car.

This is the 9th cycling fatality in Ohio in 2011.  These include

2011 OHIO FATAL BIKE CRASHES

1            2/23/11 – Yost Miller – Single vehicle crash into snowbank

2            3/11/11 – David Butterfield – Dayton – Triathlete hit Rt side of dump truck turning Rt

3            4/21/11 – Lisa Hellman – 14 yr old – rode into pickup coming out of driveway

4            5/23/11 – Judge “Chip” Henry – 53 – Geauga – rearended/passing

5            6/10/11 – Kristina Godinez – Columbus hit by passing car, then 2 more

6            6/10/11 – Tajan Burt – Canton –  14 – cyclist lost control & hit SUV

7            6/13/11 – Richard Monk – 51 – Ansonia, OH – Truck veered off road & Hit cyclist

8            6/22/11 – Michael Babcock – Marietta – night – on cell phone – ran red light – no lights

9            10/14/11 – Earl Taylor, 66 – Hamilton/Butler County – 715pm, sunset at 7pm -

Our thoughts and prayers are with the cyclist’s family and friends… more details as we get them.

Steve Barbour was a beloved Columbus cyclist.  He was a retired civil engineer from O.D.O.T.  A long-time member of Columbus Outdoor Pursuits, he had been a ride leader since the 1980′s.  He was on his way to lead a C.O.P. ride the morning he was run down and killed by Ed Miller.

Steve Barbour Ghost Bike

I have written about Mr. Miller’s criminal case at some length here, here and here.  He was tried in March – focused his defense on blaming Steve Barbour and claiming the cops screwed up the alcohol stuff – and ended up with a hung jury.

In Columbus, a jury was selected last week for his re-trial.  Columbus Dispatch reporter John Futty covered the first trial and reported on September 15, 2011 that Mr. Miller had decided to give up his right to a jury trial and plead GUILTY to the “lesser of two aggravated vehicular homicide charges” and to a DUI charge.

Ed Miller Mug Shot

Sentencing is November 8.  He faces up to 5 1/2 years in prison.

The facts of the case carried some unusual twists.

Miller was out partying that night with Gabe Spiegel – a former Columbus television news anchor and personality.  According to news reports of trial testimony from the first trial, they met at 1:00 am at “Sloopy’s Pub” in Hilliard, Ohio, then went to Spiegel’s apartment at 2:30 before heading BACK out on the road to stop in at “Vanity” –  a after hours strip club with a “bring your own alcohol” policy.

On the way back from the strip club, sometime after 6:00am, Miller ran into the back of Steve Barbour’s bicycle, killing Steve.

Miller submitted to field sobriety tests, which he flunked, and a breath test which showed a BAC of 0.109%.  He challenged the alcohol tests in the first trial.  He also spent a lot of time “blaming the victim” in the first trial – claiming that Steve’s bike didn’t have lights [it did],  that they were not activated and that Steve was guilty of the crime of wearing “dark clothing.”

The plea deal spares  Mr. Barbour’s family the agony and stress of a second trial.  I expect that MANY local cyclists will be in the audience November 8 when the sentence is handed down.

Do YOU want to contribute your thoughts on sentencing to the Judge?  According to the Dispatch story, sentencing will be handed down by The Hon. Stephen L. McIntosh - you can send your letter to Judge McIntosh at the address in the link, as shown below.  Please reference:

State v. Ed Miller, Franklin County Common Pleas Court, Case No. 09CR4797

The “community’s” feelings about sentencing are certainly one thing judges are permitted to consider when crafting a punishment to fit the crime.  This is YOUR time to tell the court what you think of Mr. Miller’s now admitted crime.

You can send letters to Judge McIntosh at:

The biggest news, by far, was the toxicology report – Kelly Cox is charged with driving the Pacifica which killed Judge Henry with a HUGE Blood Alcohol level – Ohio’s legal limit is 0.08%, as most of you know. Kelly Cox’s tox report says she was driving with a BAC of 0.284%.

Kelly Cox has been charged with Aggravated Vehicular Homicide based on the BAC [2nd degree felony], DUI [1st degree misdemeanor], Aggravated Vehicular Homicide based on reckless misconduct [3rd degree felony] and Operating a Vehicle with Willful and Wanton Disregard for the Safety of Others [minor misdemeanor]. She has also been indicted on charges that she failed to stop at an accident [3rd degree felony] and 2 counts of Child Endangerment [1st degree misdemeanor] based on her driving while totally blitzed with two children in the car.

Just to remind you of what a horrific crash this was, here’s a shot of Kelly Cox’s car….

Ms. Cox was arraigned in court today [August 17]. All the local judges had to recuse themselves as they knew Judge Henry so a visiting judge will hear the case. Ms. Cox plead not guilty through her attorney.

The reason we couldn’t find anything online through the Clerk’s office is that the indictment was filed “under seal” – or privately and away from public viewing. Now that the case is active, known as Case Number 11-C- 116, we will be able to track its progress through the system.

The BAC is truly shocking. 0.28% is a VERY high number. Ms. Cox was driving a large vehicle with her step-daughter and a young child. She is very lucky she did not kill all of them as well…

I was involved in a case a few years ago in which I did a lot of research into forensic toxicology on the issue of determining BAC’s from various data and on the issue of how high a BAC a person could get to without “looking” drunk. People who are “experienced” drunks – they drink a lot – often learn how to maintain some level of relative social decorum despite huge BAC’s. In one study, people with BAC’s over 0.30% were able to fool doctors at an E/R!

Another thing that “experienced” drinkers can do is eliminate alcohol from their systems quicker than non-drinkers. For example, if you take a complete non-drinker, a moderate drinker and an alcoholic, and give them the same amount of alcohol they will show very different BAC’s an hour or two after they stop drinking. A drunk may eliminate alcohol TWICE as fast as others, so after a couple hours, the BAC of the drunk may be much LOWER than the other two.

We don’t know anything about Kelly Cox at this point. However, a 0.284% BAC is a huge number. Using a Widmark calculator, I plugged in some variables – a woman, drinking 1o drinks of liquor with 30 minutes between drinks. The calculator gives an estimated BAC over time. The chart is shown below for my hypothetical:

What this graph shows is that the BAC of the person goes UP UP UP while the person is drinking. It also shows that for 60 minutes after the person STOPS drinking the BAC continues to rise before it starts to fall. This is a very rough estimate, obviously, but it shows that even after 10 shots in 5 hrs, the BAC doesn’t get up to the .284% that Kelly Cox allegedly exhibited!

Here’s another interesting chart which shows an estimate of how many drinks it takes to get to certain BAC’s with given weight. The chart for women is different than the chart for men because women and men process alcohol differently. For example, a 160 pound man who imbibes 10 drinks is estimated to have a .23% BAC but a 160 pound woman will have a .28% BAC.

Much more on this case as it proceeds. You can read a news story about the arraignment here and you can read the indictment here. We WILL be watching the criminal proceedings in this case very closely!

Here’s a shot from the Geauga County Maple Leaf newspaper which published the story about the case.

8/25/2011 – UPDATE – Dayton Judge Sentences Drunk Driver to FOUR YEARS

In May, 2010, a 34 year old woman with a BAC that was more than twice the legal limit [0.181%] struck a motorcycle, killing the 63 year old rider.  She plead guilty today to aggravated vehicular manslaughter and was given a 4 year prison term by a judge in Dayton, Ohio.

The motorcyclist and his wife were riding to the “Blessing of the Bikes” – an annual event in many churches when the crash occurred.

In Geauga County, Kelly Cox is charged with driving with a BAC more than THREE times the legal limit, smashing into Judge Henry and leaving the scene.  We’ll see how this case shakes out…