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…

Rapids Road is shown below. According to the crash report the crash occurred 0.4 mile south of Greystone Drive.

Here’s another view from Google Earth:

The motorist who killed Judge Henry was also northbound on Rapids. Kelly Cox was driving a 2008 Chrysler Pacifica – a big, SUV-ish type of vehicle, which is 5,700 pounds and almost 80 inches wide.

The first apparent impact on the police report is a “bike scuff mark” roughly 2 feet, 11 inches off the side of the road. The Judge’s body is marked almost 160 feet north of this point.

After smashing into Judge Henry, the motorist… just drove away.

She went home, dropped off her kids, and returned with her husband.

So what happened? What did the motorist say? Well, below you can read her own statement…

Ummm… OK.. a raccoon… you swerve and you HIT A MAN ON A BIKE… and you keep going. Later in the statement Mrs. Cox told Troopers she THOUGHT SHE HIT A MAILBOX… so she kept going… when the Trooper asked what her step-daughte thought WHEN THE WINDOW EXPLODED, she admitted that her step-daughter said “I think you hit someone…”

So, Kelly Cox is being prosecuted, right?

Ummm… no… not so far as I can tell.

Well… at least Kelly Cox got a TICKET, right?

Ummm… no… not so far as I can tell.

So WHAT’S GOING ON IN GEAUGA COUNTY? Is the investigation “ongoing?” I haven’t read anything in the media about any tickets – or any prosecution…maybe a sharp reader can help me out… I’m sure I’m not the only one wondering why a death CLEARLY CAUSED BY HORRIFIC DRIVING isn’t being prosecuted at this point… even OSHP apparently came out and said Judge Henry was “BLAMELESS“…

I just don’t get it…

Steve Magas

8/20/2011 Follow Up – KELLY COX INDICTED

As many of you know by know, Kelly Cox was indicted this past week on seven separate criminal charges.  The key claim is that she had a blood alcohol level in excess of .28% and was driving drunk, with two kids in the car, at the time she smashed into Judge Henry and killed him.  You can read my about the indictment here.

7/18/2011 — FollowUp

I ordered the complete crash report and OSHP photos. The photos are, in a word, shocking.

The front of car that the motorist thought “hit a mailbox” is shown below.

The road, straight and narrow, is shown here:

After the crash, the officer tried to see where the damage to the back of the Judge’s bicycle lined up with damage to the SUV.

I understand that this woman had children in the car… but how do you smash into a human being and drive away… THAT I will NEVER understand…

UPDATE 2 – Weather

One alert reader took me to task and pointed out that the photos clearly show some rain, so, she argues, the weather was not “clear and dry” as I wrote. In reviewing the police report again, I found this under weather at the time of the crash.

As I indicated, it was clear and dry AT THE TIME OF THE CRASH. The rain came – but not until after the crash.

What about the witnesses, what did THEY see?

Well, here’s what one wrote:

Here’s what another witness said:

So while the reader’s observations about the rain in the photos are correct, clearly they were taken after the, not before. The crash, however, occurred before the storm hit. It was cloudy but not “dark.” It was clear and dry at the time Judge Henry was killed. He was was “visible” to anyone who was paying attention – like the guys cutting the grass – and should have been seen by every motorist on the road.

Who else said “clear and dry?” What would I write that? Well, if you read the motorist’s statement to the trooper you find this exchange:

The reader also claims that the road is “like an extreme rollercoaster, hilly and curvy.” Yet, from what I can tell from the google map, and the OSHP photos, the section of road where this crash occurred was straight, flat and narrow. The word “rollercoaster” does not pop into my mind when I look at this photo:

SMM

We’ve gathered most of the data – police reports, photographs, witness statements and accident reconstruction analysis from most of the 11 fatal crashes.  In the meantime, I continue to watch the Google Alerts for news of 2011′s fatal crashes.  Here’s a brief summary of some of the 2010 data, and a close look at two crashes.

-  There have been 11 bike deaths reported for 2010 – 9 men and 2 women.  Average Age- 43.6.  Median Age – 39. The oldest rider killed was 76, the youngest was 11.  While ODOT recently released a study showing that more than HALF of all bike “crashes” in Ohio involve kids between 5 and 18, fatal crashes typically involve adults.  In 2010, there was only one cyclist killed under the age of 18.

- Of the 11 fatal crashes, five occurred in the dark and four of those crashes were blamed on a lack of lighting or “conspicuity” of the cyclist.

-  There were two hit/run deaths in Columbus – Jeff Stevenson and Trent Music.  Both were struck at night.

- The driver who hit Mr. Music was found shortly after the crash.  Police blamed the cyclist for causing the crash as he was unlit and wearing dark clothes. He had been cited once before for this. From what I have been able to tell, police never cited the driver for leaving the scene of the crash or anything else stemming from this crash.

- The driver who allegedly struck and killed Mr. Stevenson was charged with two felonies a few weeks ago – more than a YEAR after the crash – after DNA evidence on her car matched up with Jeff.  Her case is pending, in a very early stage, before the Franklin County Common Pleas Court.  Her charges do NOT relate to causing the crash but to leaving the scene and “tampering with evidence.”

-  Two cyclists were killed in 2010 deaths while the cyclists, riding on a bike path, were trying to cross a two-lane country road to get back to the bike path on the other side of the road.  One was clearly the rider’s fault… the second I’m not so sure about.

CHAMPAIGN COUNTY BIKE TRAIL CRASH

Thomas Spurgin and his wife were riding north along the bike trail in Champaign County around 7:30 am on September 1, 2010 toward the Hickory Grove Road intersection.  Hickory Grove is a typical Ohio two lane 55 mph country road.  As they approached the Hickory Grove Road intersection, the sun was rising to their right.    Also to their right, within one hundred feet, was a low railroad crossing.

There are “Stop” signs and other signs warning trail users to use caution when crossing Hickory Grove Road.

As I try to “reconstruct” in my mind what happened here, I’m fairly certain that the combination of the terrain, the low overpass and the rising sun, played a role here in obscuring traffic from the east.  Mrs. Spurgin left the trail and entered the roadway with Mr. Spurgin 15-20 feet behind.  As Mrs. Spurgin left the trail and began crossing the road a pick-up truck approached from the east.  The pick-up driver told police he saw Mrs. Spurgin moving left to right in front of him and went left to avoid hitting her.  As he went left, he ended up running into Mr. Spurgin, who was just entering the roadway.  Mr. Spurgin died from his injuries.

Mrs. Spurgin told police that the two riders did not stop at the stop sign.  The truck driver told police he was well within the speed limit – which the police corroborated with an analysis of the skid marks.  They determined that the maximum speed of the pick-up was 46.7 and the minimum speed was 40mph.

To me, this crash occurred as a result of a poor, but somewhat understandable, decision by two riders out for an early morning casual bike trail ride.  Anyone who has ridden on a bike trail is familiar with being lulled into that sense of security.  Approaching the roadway intersections we need to ALWAYS gear up our senses and remember that we lose EVERY confrontation with every motor vehicle.  Here a combination of the rising sun and the low overpass probably made it difficult to see the approaching pick-up truck.  The police stated their conclusion very simply – the bike rider “… was at fault for not stopping at the posted stop sign on the bike path…”  Simply a tragic, and avoidable, crash.

TRUMBULL COUNTY BIKE TRAIL CRASH

The other bike trail crash occurred in Trumbull County.  Lawrence Furniss was riding south on a bike trail and intended to cross T.R. 222, also known as Housel Craft Road.  This is a very similar intersection to the Champaign County crash.  There are Stop signs on the trail as well as signs warning riders to use caution as they cross the roadway.  Mr. Furniss was struck and killed as he attempted to cross Housel Craft Road.  As in the Champaign County case, police blamed the crash on Mr. Furniss’s failure to stop at the stop sign.

Seems all nice and tidy… but… I have doubts about this one.

The motorist was traveling westbound on Housel Craft Road in 2004 Grand Am.  He told police he was going “about 55mph” which, of course, is the posted speed limit.  Unlike the Champaign County case, there is no mention in the crash report of any attempt by the OSHP investigators to determine whether the motorist’s claimed speed was reasonable given the  skid marks, crash damage or other factors.

The sketch, below, comes from the crash report.  As is typical, investigators labeled the skid marks and measured them.  The distance from point A to C, the right tire skid mark, was noted to be 188 feet.  The problem with the report is that there is NO notation of where on the road this skid mark starts – how far east of the point of impact the skid mark starts.  The “RP” point is a telephone pole.  The “O” point is the “concrete edge” of the north side of the road.  Point “O” is 37’6″ north of “RP” but nowhere in the report is there an indication of how far east of the path point “O” is found.  So we don’t know how far away from the crash site the motorist started his skid.

This information is important – maybe critically important – to a proper analysis of what happened here.  From the sketch, which is “NOT TO SCALE” it appears the officer was trying to show that Point A was quite a bit farther from the bike path than point “C” but without the measurements we’ll never know.

What about 188 feet of skid marks?  How do we consider that?  From the report, conditions were optimal for minimizing the stopping distance.  The road was flat- level.  It was 87 degrees and the road was dry.  There is no mention of any review of the motorist’s tires or brakes.  Using a typical skid/speed calculation formula, and using some basic assumptions about the car’s braking efficiency [1.0 - all brakes working] and the drag factor for asphalt [.75], I come up with a speed of roughly 65 mph, not the “about 55mph” stated by the motorist.

In addition to the skid mark evidence, the witness statement provided by the motorist was … interesting… to say the least.  The motorist wrote that he was “…was heading to our campground with my wife & dog & dog was getting car sick in the back seat so I was trying to get there a little quicker. Came up to a bike path and looked either way and saw no one. At the last minute he flew out in front of me and I immediately slammed the brakes on.”

Hmmm….

So the driver was distracted by a dog puking in the back seat.

And the driver was trying to get to his campsite “…a little quicker…” at the time of the crash, but claims to have been traveling the speed limit ["...about 55 mph..."]

The motorist claims to have been on the look-out at the bike path – looking both ways and seeing “no one” —  until this bike rider came flying out in front of him? Where was this cyclist? Was he invisible?  Can you see why the measurements are so critical?  How far from the intersection did this guy START braking?  Why did he lay down 188 feet of skid marks if he was going “about 55 mph?”

Most accident reconstructionists will testify that a typical “perception/reaction” time is 1.5 to 2.0 seconds.  This “P/R” time is critical to understanding crashes.  These experts tell us that human beings do not react instantaneously to danger – there is a bit of a time delay as the image of danger is “perceived” by the eyes/brain and some “reaction” is begun.  During this 1.5 – 2.0 seconds of P/R time a motorist, for example, just keeps moving toward the danger at speed.

In this case, at 60 mph, the motorist is traveling 88 feet per second.  Thus, if it took the motorist 2.0 seconds to perceive the cyclist and react, by hitting the brakes, the car would have traveled 176 feet before skidding even STARTED.  Again, that distance from the start of the skid to the point of impact is critical.

The car broadsided the cyclist. This much is obvious from the photos taken at the scene.  The rider did not strike the side of the car.  So this idea that the cyclist just appeared after not being visible just doesn’t make sense.

This motorist’s story, and the physical evidence, raises many more questions, to me, than it answers.  In fact, to me it says the motorist was both distracted AND speeding – two factors that are highly indicative of causing a crash.

Here’s a shot of the view the motorist had as he approached the bike trail.  Given the limitations of cameras, depth of focus, perspective and the like, it is difficult to tell “how far” something is from something else in the photo… those measurements would have been very helpful in analyzing this crash.

Maybe what happened was just “obvious” to officers at the scene?  I don’t know… but, to me, the report and photographs make it less than clear to me that this crash was 100% the fault of the cyclist…

Steve Magas
The Bike Lawyer

THE PROCESS

Gathering data for this report has been challenging. Fortunately, the Ohio Department of Public Safety has been very cooperative. They have provided me with a series of 250+ page reports for each year from 2005-2010. Six years of data containing information about every BIKE CRASH in Ohio – all 12,084 crashes.

That seems like a lot of bike crashes – more than 12,000. But, considering that Ohioans were involved in more than 1.6 MILLION crashes from 2005-2009 [2010 stats are not in yet], those 12,000 bike crashes don’t seem so bad.

From 2005-2010, road crashes took the lives of 94 bicycle operators. That’s an average of almost 16 per year. There were just ELEVEN in 2010. During the 2005-2009 period, more than Ohio 6,000 motorists lost their lives in those 1.6 million crashes.

To put some perspective on Ohio’s figures, look at a state like Florida. Florida has 18,000,000 people while Ohio has 11,000,000. But Florida leads the nation, by far, in cycling deaths. I’m not quite sure why this is – a variety of reasons, no doubt, including an aging population, narrow/crowded roads, great cycling weather, lots of tourists, etc, etc… but I’m not sure there is rationale explanation for the NUMBERS.

Florida had almost 3,000 traffic fatalities and 125 bicycle rider deaths in 2008 [most recent NHTSA stats]. That is almost TEN TIMES the number of cycling fatalities Ohio had in 2010 and amounts to 6.82 deaths for every million people in the state. Ohio’s rate is 1.57 cycling deaths per million people.

2010 ANOMALIES IN OHIO

As I indicated, ODPS provided me with these HUGE wonderful reports of more than 12,000 bike crashes. I told myself, and YOU dear reader, I was NOT going to look at sheer statistics for my report on 2010 fatalities… but I couldn’t resist.

When I was asked to write an op-ed piece for the Columbus Dispatch, I wanted to take a look at Franklin County specifically. The ODPS reports are broken down by county, so I was quickly able to determine that in 2010 there were 241 bike crashes in Columbus. Cyclists were blamed for causing 110 [45.6%] while motorists were blamed for causing 104 [43.1%] with the balance being “undetermined.” This roughly 50/50 balance is fairly consistent with some figures I have seen and inconsistent with others which claim that motorists cause NINETY percent of car/bike crashes and inconsistent with others which claim that cyclists are cited more often than motorists for being at fault. A study in NYC claims that motorists were principally at fault in 57% of the 53 cyclist deaths they studied and a contributory factor in 78%!

[I should point out that the ODPS report I received was printed in December 2010. However, I have since learned that it takes months for all the 2010 crashes to make it into the statistical report the ODPS puts together. I am awaiting a new report, updated with the most current data, which I will use for my final Study. SEE UPDATED INFORMATION AT THE END OF THIS POST]

I also looked up close and personal at High Street in Columbus. There were 25 bike/car crashes on High Street in 2010! I haven’t looked at every county, but I’ve looked at most of the big ones in Ohio and 25 is, by far, the most bike/car crashes I have seen on any one street [albeit a very very long one...] In the High Street crashes, Police blamed the cyclist for causing only FIVE of the those 25 crashes [20%] while issuing citations to the motorist in SIXTEEN crashes [64%]. The remaining four were called “undetermined.”

The vast majority of the High Street crashes were caused by motorists who committed some sort of “right of way” violation – following too closely [ACDA], right cross & left hook, or a bad passing maneuver.

Left Cross

Right Hook

The problem with the ODPS reports that I am looking is that you have to accept the officer’s street level, on-the-spot conclusion as to “fault” without argument or analysis. The only way to independently determine if the officer was “right” in blaming one side or the other is to get the actual report and review it with an accident reconstructionist’s eye. In MANY crash reports, there is simply not enough information written down by the officer to permit this even if you had the time and inclination to do so!

In my experience of handling almost 300 “bike” cases, I have reason to suspect that there is a lot of street level error in the “fault” analysis. I have had many cases where the cyclist was told at the scene that the crash was his/her fault by the investigating police. I have many times been able to proceed on a civil claim for the cyclist against the motorist, arguing that the investigating officer didn’t get it “right.”

This is why my 2010 Report will look in detail at all FATAL bike crashes. Virtually every fatal crash in Ohio is thoroughly investigated. Witnesses are interviewed. Careful scene measurements were taken. An accident reconstruction is often performed. Numerous scene photographs are taken.  ALL of this information is publicaly available … IF you know where it is and how to get it… which,of course, I do.

However, the Columbus/Franklin County crash data got me to wondering about other big city areas in Ohio. I write a regular column for the Dayton Cycling Club’s newsletter and so I thought I would take a close look at Montgomery County’s 2010 bicycle crash stats … to say I was shocked was an understatement!

Montgomery County had 83 car/bike crashes listed in the report – 14 to a page and almost six full pages worth. As I started reviewing each line of data I noticed that the vast majority of the crashes on each page were blamed on the CYCLIST. At the end, it appeared that police in Montgomery County blamed the cyclists in 59 of the 83 crashes – a whopping 71%. Motorists were only blamed for causing 18% of the crashes [15 of 83] while 9 were said to be “undetermined.”

71% vs. 18% – that’s a HUGE difference from the almost 50/50 split I saw in Franklin County. Are Dayton cyclists that much worse at obeying the law, and that much better at causing crashes, than their brethren in Columbus?  Didn’t make sense.

So I looked at Hamilton County. 117 car/bike crashes in 2010. Bike riders were blamed in 51% and motorists blamed in 38% with 12 crashes being “undetermined.” Not quite 50/50, but a lot closer than Dayton.

Cleveland was next, and was also a shocker. Motorists in Cleveland [Cuyahoga County] were blamed for causing 144 of the 301 bike/car crashes in 2010 – or 47%. The bike rider was blamed for causing only 31% [93 crashes] while 21% [64 crashes] were listed as undetermined.

So, here’s a summary of a few Ohio counties:

I haven’t had time to compute the other “bigger” counties in Ohio but will update this post when I do. But, so far, the results are surprising, to say the least.

I guess what I need here is an unpaid intern who would love to do this analysis for all 12,000+ cases, county by county, from 2005-2010… I think we would have one HUGE pile of interesting statistics – especially if, say, Dayton continued to be way off from everyone else. That could indicate some sort of systemic issue within the investigating police departments – or a complete lack of safety consciousness of the riders [which I highly doubt].

Stay tuned for more peripheral, tangential news from the 2010 Ohio Fatal Bike Crash!

UPDATE! UPDATE!

Well, I requested updated data from ODPS and today got another 250 page report for 2010. Apparently, crash reports are still trickling in from Ohio’s more than 800 police departments. This report indicates that there were 2007 Total Bike Crashes in Ohio in 2010 [up from the 1809 crashes listed in the first report I received several months ago]. This report also lists 13 fatal crashes, up from 11 in the 1st report, and 1686 injuries – up from 1530.

I have begun to go through the report, teasing out the data that is of interest to me. This includes a re-look at Montgomery County, which had such bad numbers – as cited above. The latest report is a bit different.

This is an improvement over the initial figures, but still an aberration since motorists are blamed for causing only 1 out of 4 bike crashes. I haven’t had time to go through to figure out which cases which were previously designated the cyclist’s fault were changed… this would be SO much easier if the data were pliable – and the whole “let’s practice law” thing didn’t invade into non-legal pro bono research projects…

The numbers are going to be slightly different for all the bigger counties – so I’ll regroup and repost later with updated figures.

Good Luck and Good Riding!

Steve Magas, The Bike Lawyer

The artist, Talia Lampert, is a New York artist who does “Bike Paintings.”  Gorgeous, colorful paintings of … well… real bikes.  Not high-end $20,000 bikes made of the latest mode of unobtainium, but real people’s bikes.  You can see her work here.

I purchased the right to use one of Talia’s paintings for one of my cards.  I’ve been sitting on it for over a year… This week my artist-in-residence, my step-son’s wife, designer extraordinaire  Teresa Johns, put the thing together in grand fashion.  You can see the results below.

The back of the card will offer, in a much more lawyerly font, a summary of Ohio’s Bike Laws, with reference to the Ohio Revised Code sections.

As you can tell, we put one of those cool, funky, hip, groovy QR thingamagoochies in the  lower left corner.  If you aim your iPhone or SuperDroid at it, you are instantly transported to H.G. Wells’ Bicycle Utopia …er.. well… maybe not… it actually completes the Circle of Life and takes you right back here to the website through the magic of iFairies, pixel dust and the InterWeb…

Let me know what you, the reading public, thinks of this… I understand “spoke cards” are very hip right now… maybe that’s next on the list…

THANKS!

Steve Magas

Here’s an expanded, and annotated, version of what I sent in… my views on why Cyclist/Motorist Tensions that have escalated in Columbus during and following the Ed Miller trial – the man accused of being drunk when he ran into, and killed, a well-known Columbus cyclist, ride leader and advocate, Steve Barbour.  The trial recently ended in a mistrial as jurors could not reach a unanimous verdict.

Steve Magas, The Bike Lawyer

UNDERSTANDING CYCLIST/MOTORIST TENSIONS

By Steven M. Magas, The Bike Lawyer

The death of cyclist Steve Barbour in 2009, the recent trial of Ed Miller, and the 2010 deaths of Columbus cyclists Jeff Stevenson & Trent Music, have created a palpable tension between motorists and cyclists in central Ohio.  A war of words has erupted in the Columbus Dispatch.

Cyclists are rightfully angry that one of their most cautious and beloved brethren was killed and then blamed for causing his own death. Motorists argue that cyclists drive carelessly, should “pay for” using the roads though licenses and taxes and should not be allowed on certain roads in the first place.

Let’s step back –  take stock – and address some of these concerns.

Why Are Cyclists Allowed On The Roads?

As Walt Whitman proclaimed “O Public Road!”

The roads in Ohio, and throughout the U.S., are PUBLIC ways open for the public to exercise a constitutional right to travel.  Bicycles were on the roads before cars existed.  Bicycle operators are included as legitimate, legal road users in the traffic laws and rules of the road in all 50 states.  Under Ohio law, bicycles may use EVERY non-freeway road and may not be banned from the roadway.

Motorists argue that bicycles go “slow” – as do big trucks, farm equipment and Amish buggies.  However, on all but higher speed country roads, cyclists can actually travel at average speeds approaching motor vehicle speeds.  Today’s impatient motorists must understand that “traffic” is a brightly colored cloth which includes the movement of vehicles of all types and speeds of vehicles.

Do Cyclists, or Motorists,  “Pay For” The Roads?

Many, if not most, cyclists are licensed motor vehicle operator owners and pay the same “fees” as everyone else.  However, public roads, like public buildings, public sidewalks and pubic schools, are open to everyone regardless of income.

Roads are not a private club with a steep initiation fee and monthly dues.  Those who drive Big Trucks or gas hogs,  paying higher “fees” and “taxes” and buying more gas, do NOT get bigger or more rights than those operating smaller vehicles.  People driving VW Bugs or Mini Coopers or bicycles are not required to surrender their legal right of way to those driving a Ford Subdivision [or whatever the new humongo vehicle is called these days]!

Paying for the MAINTENANCE of roads is even more important. A single 40-ton semi, which weighs 40 times more than a one-ton car, does 9,600 times more damage to the roads than the car.   A bike rider does not compare – the bike+rider unit does virtually NO damage with  skinny tires, light frame and rider.  Yet, big trucks are not paying their “fair share” to maintain roads – at least according to a recent Dispatch editorial.  Under this analysis, bicycle operators should get a REFUND for not damaging roads…

Why Aren’t Cyclists Licensed?

We demand that people be licensed to be allowed to do dangerous things – things that put the lives of others at risk. A cyclist is a risk to her/himself but not a realistic risk to others.  A bicycle operator who goes “rogue” is not going to drive through a crowd of people and kill them.

Licensed motorists kill at the rate of 30,000+ per year in this country.  NHTSA was recently touting the latest figures for 2010, which dropped to “the lowest rate in history.” 33,808 people were killed in 2009 and “only” 32,788 were killed in 2010.  As far as I have been able to determine unlicensed cyclists killed ZERO people last year.

Drivers licenses were not issued in the U.S. until

Are Cyclists Driving Recklessly?

The short answer – no.

I am working on a report of EVERY cycling fatality in Ohio in 2010.  Part of my research included getting reports from the Ohio Department of Public Safety which list every CRASH involving a bicycle from 2005-2010.

There were only TEN cycling deaths out of 1,809 crashes in Ohio in 2010.  By comparison, 500,000 Ohio drivers were involved in over 300,000 crashes in 2009 leading to 935 deaths – that’s an average of 822 car crashes, and more than 2 motorist deaths, every day!

242 bike crashes occurred in Franklin County in 2010. Of those, 110 police reports listed the cyclist as the “unit in error.”   This roughly 50/50 breakdown on “fault” is consistent with national figures.

One Key Point needs to be inserted among the numbers here – one I firmly believe –> Cycling today in Ohio is SAFE.

Don’t let statistics prevent you from dusting off that bike and getting out there to enjoy Ohio’s roads and trails.  According to bike guru Ken Kifer, cycling is six times safer than LIVING! However, being aware of how accidents happen can help you “see” ahead and plan ahead. Knowledge is power and, here, it is the power to ride safely and effectively!  [Ironically, Ken Kifer was killed while riding - by a drunk driver who is now serving 20 years in prison for murder as the result killing him!]

“SEE” is actually an acronmym borrowed from the motorcycle literature.  It means “Scan/Search – Evaluate – Execute” – three steps new motorcyclists are taught to use constantly in Motorcycle Safety Foundation training classes.  These steps should be used by cyclists on the roadway as well.  ”Search” ahead – 10 to 12 seconds ahead – and determine what potential risks are upcoming.  Complex intersections, pedestrians, narrowing lanes, right turn lanes, freeway on-ramps, crosswalks, dog walkers, debris or potholes, parked cars…  ”Evaluate” those risks and develop a plan to deal with them as you approach.  ”Execute” that plan far enough ahead to keep the risk from blossoming into a full blown conundrum!

Rising Cyclist Tensions

I took a closer look at one Columbus street – High Street – where 25 bike crashes occurred in 2010.  High Street is a long, flat, urban thoroughfare that stretches from one end of Columbus to the other.  Downtown High Street is chock full of great shops, food establishments and cyclists.  Of the 25 bike crashes in 2010, the cyclist was faulted in only FIVE while sixteen listed the motorist as being at fault.

“Right of way” violations by motorists on High Street were the overwhelming proximate cause of these crashes – i.e., the cyclist possessed the “right of way” under the law and that right of way was not respected by the motor vehicle operator either through an improper turn, passing maneuver, “ACDA” violation or other invasion of the cyclist’s right of way.

In many of these High Street crashes the motorist simply failed to “see” the cyclist.  As I have written many times, this is not an excuse but an admission of liability.  Judging by the actions of the downtown traffic cops in Columbus, motorists are being ticketed for these right of way violations.

Hit and run drivers continue to plague cyclists – as well as pedestrians, motorcyclists and other vehicle operators.  Hit/run drivers kill four people in the U.S. every day.

In Columbus, Jeff Stevenson and Trent Music were both killed by hit and run drivers.  Maybe you saw a white “ghost bike” marking the scene of Jeff’s death on Sawmill Road last summer?  Hit & run deaths take a huge emotional toll on the cycling community – similar to how an unsolved murder rattles the neighborhood where it occurs.

Steve Donaldson is an Arizona cyclist who started “CARD” – Cyclists Against Reckless Driving – with a mission of promoting and encouraging safe cycling, reducing crashes, and educating and informing the masses.  Steve started CARD’s Facebook page a year or so ago for the purpose of publicizing bicycle crash cases he finds during daily web searches.   CARD’s page has amassed more than 10,000 followers who follow the tragedies around the country. While at times morbid, this page serves as a very in-your-face reminder to cyclists that stuff happens on the roads every day  and hit/run incidents seem to be an epidemic these days.

How do we move forward?

The key is education – understanding the law as well as where the emotion on each “side” of this issue comes from.

Motorists need to understand and accept that:

-       Ohio cyclists may ride on virtually EVERY non-freeway chunk of asphalt in Ohio – even the ones viewed by some as “dangerous.”

-       A cyclist riding lawfully on the roadway has EXACTLY THE SAME “right of way” as any other driver. Bigger vehicles don’t get bigger rights!

-       “Failure to Yield” to a cyclist’s right of way is one of the primary causes of car/bike crashes in Columbus, in Franklin County, in Ohio and in the U.S.

-       Ohio law allows cyclists to ride two abreast.  One rider may use the FULL LANE where needed for safe riding.

-       Passing at safe distance is critical.

Cyclists need to understand and accept that:

-       With the right to use the roads comes responsibility.  Cyclists must follow the rules of the road just as any vehicle operator must.

-       Traffic rules must be followed.  Stopping at red lights and stop signs is mandatory and an effective way to demonstrate that you ARE “traffic” and not simply playing in traffic.

-       Riding visibly, and predictably, is better for riders AND motorists.

Millions of Ohio bicycle riders will safely ride tens of millions of miles this year.  With gas prices over $4.00/gallon and rising, we will see more utilitarian riders to go along with the commuters, recreational riders, mom & dads, fitness buffs, racers and kids on the roads.

To quote Sgt. Phil Esterhaus: “Let’s Be Careful Out There.”

From D.C. comes an interesting post – the author makes a case for changing “the rules” for riding bikes, questioning why we need to follow the same rules as giant two ton behemoths.  Unspecified “changes” need to be made to the rules.  Bikes shouldn’t have to follow the same rules.

“…These updated rules should provide better clarity about situations that didn’t really exist 10 years ago. For example, vehicles turning right when there’s a bike lane. Is the person driving supposed to wait for the bike? Or is the person on the bike supposed to overtake the car as the driver waits in the bike lane to turn right? What if someone double-parked their car in a bike lane, what is the correct action for the cyclist?…”

Many of the following comments militantly argue against rules at all – criticizing the “Law & Order Brigade” of cyclists who think we need to have some rules to control the orderly flow of rules on the rules…

“… the L&OB are not unlike the Vehicular Cycling (VC) folks who actively quashed the growth of cycling in the United States for the past 30 years. It is possible that VC folks, having been exposed and discredited, have merely shifted their pro-driving rhetoric to one of making cyclists obey laws which nobody else obeys, in order to make cycling as inconvenient as possible…. “

Below is the post I added to the conversation…

— — — —

WHY FOLLOW THE RULES?

Interesting approach – don’t treat bikes like vehicles.  In an era where there are MANY in politics looking for any excuse to kick us OFF the roads, the easiest would be for them to say, “Look, they don’t want to follow the rules.”

As an avid cyclist, a lawyer who has handled 250+ “bike cases” in which cyclists have been hurt or killed, someone who has researched bike crashes and drafted legislation, and someone who has written “bike laws” with the best interests of cyclists at heart and tried to work them through “the system,” I see the author’s approach here as naive and idealistic – creating a sort of Bike Utopia, where everyone sees and appreciates the merits and benefits of cycling and allows cyclists to use the roadways without really needing to follow “the rules” – so, what, they’re not so much “rules” really, eh?  They’re actually more like guidelines?

Roadways are public ways – designed to allow the public to move about the country in an orderly fashion.  Rules are needed to insure this orderly flow of “traffic.”  Traffic is a brightly woven cloth with threads of many colors – the dark, smokey, polluted greys and blacks of cars, trucks and busses, and the bright, vibrant hues of bicycles, trikes, recumbents, fixies, 29-ers, hard and soft tails, and “kid” bikes.  The rules for moving all this traffic around safely must take ALL types of traffic in mind – from Amish buggies to slow moving farm equipment to bikes to 4-wheelers to 18-wheelers… Maybe life for cyclists is better in D.C. and has evolved to that Utopian place where rules are no longer needed and folks can just LOOK and be safe – not so here.

The “law” generally divides the world into two parts – the part “On” the road and the part not on the road.  If you want to drive a vehicle on the road, you need to follow the rules.  For bicycle operators, this means some very basic stuff- stopping at red lights and stop signs – not driving drunk – etc etc etc.  While the merits of particular rules can be debated, the reality is that rules are needed to make traveling in traffic “predictable” and safe.

I’m currently doing a detailed study of EVERY fatal bike crash in Ohio over the past two years – a study I hope to continue each year.  I’ll be releasing a detailed report in time, hopefully, for Bike Month.  This study involves obtaining and independently reviewing and analyzing the crash reports, witness statements, photographs, accident reconstruction analysis and any other publicly available documents of each deadly crash to see if the police “got it right” when detailing the “cause” of the crash.  Ohio’s cycling fatalities usually are in the 10-20 range, so, to me, this type of detailed study was “do-able” and the numbers are really too small to use statistically.

Of the 9 fatalities in Ohio in 2010, 2 involved cyclists who ran stop signs at bike path/roadway intersections.  One involved an older man who was riding at night, without a light, in dark clothes, while very drunk… [funny thing, from my reading of the police reports, the latter rider may have been the LEAST culpable of the three...in terms of accident causation!  He was riding well to the right, possibly off the road and on the berm, when he was rear-ended by a hit/run driver.  Police did a rather shabby investigation, though, as far as accident reconstruction probably, I suspect, because he was drunk, and it was night, and he had no light so Voila, he was "invisible" and the hit/run motorist couldn't "see" him...given where he was struck, and where the debris scattered, the motorist was clearly, to me, off the roadway when she clobbered him...but that's another story]

People writing about “injuries” in this thread have picked up a very valid point.  “Injury” cases are much harder to classify and track.  Injuries range from skull fractures and TBI’s to road rash.  However, virtually every fatal crash generates a very detailed report, which makes for a better independent study.  For any analysis of bike crashes leading to “injuries” we are stuck with big numbers, statistics based on a possibly faulty street-level analysis leading to hurried conclusions noted with an “X”  in the “fault” box of a police report by a beat cop who may have better things to do …

So how does this help us look at the “Idaho Stop” and “let’s not follow the rules” arguments? First, anyone who has been involved in cycling advocacy for more than 5 minutes knows that selling a change of the rules is very very tough no matter WHAT the change is… if the change is “we’re gonna let cyclists slide through stop signs” I can guarantee you that you will never get the votes in Ohio’s legislature to get that through.  There is no sense in wasting what little political capital we have on dead issues with no chance of passing.

Further, I see the “Idaho Stop” as potential suicide in big cities.  You can say what you want about people being smart enough to not pull out in front of cars, it happens all the time under CURRENT “stop” laws… it’s a bit like watching a punch press… you think you’ve got it timed so you can stick your hand in there and not get clobbered but the odds of you getting stuck… at some point over time.. are pretty good without rules and guards to protect you – 1:1 maybe – even though you KNOW it would be stupid to let that thing smash your hand and you KNOW you can time it so you can stick your hand in without getting smashed – over time, stuff happens… people get tired or in a hurry or they are having too much fun to pay attention, they don’t “see” what there is to be seen, perception/reaction times suffer… Following “stop sign” rules and other rules keep you safe while participating in the very serious business of moving about the country!

Finally, if we want “respect” from motorists, we have to earn it on EVERY ride. I’ve written for many years that every cyclist is an Ambassador for Cycling on EVERY ride.  The meter that measures public perception of cyclists ticks ever slow slightly Positive or Negative with every encounter a motorist has with a cyclist.  When I take a “bike case” to trial, I try to gauge the feelings of jurors about cyclists on the roadway – almost all have negative views based on negative experiences.  This negativity crops up in lawmakers in the form of a “parens patriae” approach – we need to take care of them and keep them safe…how?  By getting them off the road of course!  Not following the road rules just juices up THAT theory.

We’ve been fighting the battle to stay ON the roads for more than 100 years…In May, 1896 [yes, that's EIGHTEEN Ninety Six], early cycling advocate JB Potter had to remind New York City’s Park’s Commissioner that he lacked the authority to kick bikes off the roads and relegate them to “cycle paths.”  He did so by pointing to a law which then allowed cyclists to use EVERY roadway “…open to the free use of persons using carriages drawn by horses…”  The “car” wasn’t even on the legal radar yet.  Let’s not give “them” more ammo in 2011 to justify arguments in favor of kicking us OFF the roads…

Let’s be careful out there!

Steve Magas

The Bike Lawyer

www.OhioBikeLawyer.com

[co-author of "Bicycling and the Law"]

I am well into researching my Report on All Ohio Cycling Fatalities.  Part of the report will be tracking any criminal cases arising from the crashes.  THREE of them are set for trial in February, 2011!

-Pat Hovan, the 24-year old man accused of running into, and killing, James Chapple, an avid cyclist, in Brunswick, OH on July 5, 2010, was charged with Vehicular Manslaughter, a 2nd degree misdemeanor. His case is set for a jury trial on February 3, 2011 in Medina Municipal Court.

James Chapple - 2975-2010

==============================

-Ervin Blackston’s trial on Vehicular Manslaughter charges in Hocking County for causing the death of Pelotonia rider Jennifer Kazlausky is set for February 11, 2011. Blackston admitted to police that he had replaced the brake lines the day before the crash. Police found the brakes on Blackston’s pick-up to be inadequate.

==============================

-Ed Miller, charged with aggravated vehicular homicide for the death of popular Columbus, Ohio cyclist Steve Barbour in July 2009, is finally set to go to trial on Valentine’s Day, 2/14/11. Police claim Miller’s  BAC was in excess of 0.08% – the legal limit in Ohio. Miller’s passenger was a popular local TV personality, Gabe Spiegel, who told police he was “texting” at the time of the crash… he also told police that Miller had “maybe 3-4″ drinks several hours earlier… testimony which, in my opinion, just doesn’t jive with forenic toxicology or reality when the police report indicates that he tested at more than 0.10% BAC after the crash… Spiegel’s description of the accident was –  ”All of a sudden WHAM!”

Should be a very interesting month to track the criminal cases of folks who allegedly ran down, and killed, cyclists in Ohio.

My project to review every cycling death in Ohio is well under way, and I’ve already found a significant error in the numbers generated by the Ohio Department of Public Safety!  Their report says cyclists were involved in 11 fatal crashes, but my research says 9 cyclists were killed.  Get this… WE’RE BOTH RIGHT… read on to see why!

At the end of 2010 I announced a project to review and report on EVERY fatal bicycle crash in Ohio.

My plan for the project looks something like this:

1.  Obtain report containing a summary of ALL Ohio bicycle crashes from Ohio Department of Public Safety.

2.  Review the 200+ page report and locate each case where the “DEATH” column contains a number greater than zero.

3.  Obtain the complete official police crash reports for every fatal bicycle crash.

4.  Obtain the official police photographs from every fatal bicycle crash.

5.  Review the police report, witness statements, photographs, accident reconstruction records and all other data with an eye toward determining if the “official” conclusions as to “fault” and who caused the crash make sense.

6.  Determine if any criminal or traffic matters arose out of the crash and, if so, determine what happened.

7.  Review medial reports of the crash to determine how bicycle crashes are being portrayed.

8.  Write a report outlining the facts of each crash and any findings or conclusions.

9.  Publish the report.

10.  Shoot for a release date of May 1 [traditional start of "Bike Month"] or for the Ride of Silence.

So, I started.  Step One was easy.  The folks from ODPS, Lindsay Kolmanc from the prior administration and Dustyn Fox from the Kasich administration, have been great.  Since I don’t currently have the skill to manipulate the various statistical report generators ODPS offers, Lindsay was kind enough to correspond with me via email and send me PDF files containing reports of EVERY bicycle crash in 2010… and 2009… and 2008, 2007, 2006 and 2005!  WOW… Dustyn provided a very quick response on his first day on the job, hooking me up with folks who gave me updated reports for 2010.

Each of these reports contains more than 200 pages.  The first 180 or so is a county-by-county breakdown of every crash in Ohio in which the “bicycle” or “pedalcycle” box on the crash report was checked.

Here’s a summary of the basic crash/fatality data in Ohio from 2006 to 2010.  During those 6 years, there were more than 12,000 crashes in which a bicycle was listed as a vehicle, and an average of 15.7 fatal crashes and just over 2,000 crashes per year.  If you were in a bike crash, your odds of being injured were high – 80+%, but your risk of death was relatively low – less than 1%.  

Since we don’t really have any numbers to estimate “usage” we cannot really estimate your risk of actually having a crash on any given day, or ride.  We know there are millions of riders in Ohio, who ride tens of millions of miles, so the odds are very very small.  According to IIHS statistics some one out of four cyclists killed on the road is legally DRUNK – so if you don’t drink and ride your odds go down dramatically!

In 2010, there were 1809 crashes involving bicycles/pedalcycles.  There is one line of data for  for each crash.    That one line contains a WEALTH of information, 24 separate bits of data, as shown below.  Given the six years of reports reflecting over 12,000 “bike crashes,” that means there are over 288,000 bits of data in those reports.  If one had the ability to catalog that data into a useable tool, one could get a VERY close look at bicycle crashes in Ohio – including a summary of “fault.”  However, such a report would PRESUME that the police “got it right” when checking the “fault” box on the police report – a presumption that I, for one, am not comfortable with.

Since I did not want to do a 288,000 data point statistical study, the key section I started with was the DEATHS column.  For all but 11 of the 1809 total “crashes” involving bicycles in 2010, the “DEATHS” column had a zero.  However, those 11 fatal crashes were the ones I was interested in.

At the end of the listing for each county there was a year-to-date summary for that county.  At the end of the entire report there was a summary of the year.  This summary is below.

So there were 1809 total crashes in Ohio in which the bicycle/pedalcycle box was checked.  Of those, there were 1530 “injuries” and 11 deaths.  [The "PDO" listing is for "Property Damage Only."]  I then went through and tracked down the 11 deaths from the 1809 crashes.  Those are the ones I am going to write about.

Initially, I thought “…1809 Bike Crashes and 11 cycling deaths are actually pretty good numbers for Ohio…”   You see, in addition to getting these 200+ page detailed reports I have also been collecting PDF copies of Ohio’s “Crash Facts” from 1994-2009.  ”Crash Facts” is the annual report the ODPS publishes that outlines ALL crash statistics for Ohio.  In each of these reports is a page or two for bicycle crash statistics.  They catalog the number of crashes, injuries and deaths and have some tables or graphs showing some other data.  Below is a page from the 1994 Crash Facts which shows the 15-year average for bicycle crashes in Ohio -

As you can see, Ohio AVERAGED more than 3000 “bicycle” crashes from 1980 – 1994, so 1809 crashes in 2010 is a HUGE improvement.

The number of cyclists killed on Ohio’s roads has not fluctuated dramatically.  14 deaths in 1994 – 16 in 1998 – 18 in 2004.  Ohio usually has 15-20 cycling deaths annually, so I thought eleven in 2010 was a great number.  Then… I started looking each of those 11 crashes.  Turns out that TWO of those 11 “fatal crashes” involved the death of a MOTOR VEHICLE operator, not the cyclist!

The chart below shows each of the 11 “fatal” crashes involving bicycles in 2010.

Two of the crashes – the April 30 crash in Licking County and the July 11 crash in Lucas county are lined out.  When I obtained the crash reports from these two crashes I discovered that Yes they were “fatal” crashes and Yes a “bicycle” was involved… but the bicyclist was NOT the person killed!

On April 30, 2010, a motorist lost control of her vehicle and went off the road.  She struck a bicyclist, a tree and a house and died.  The cyclist was hurt but not killed. So, Yes, a bicycle was involved in a fatal crash, but the cyclist was not killed.

On July 11, 2010, a 7-year old cyclist entered the roadway in the path of a motorcycle.  The motorcyclist, with a passenger on back, swerved to avoid the boy, struck the cyclist and lost control of the bike which led to the motorcycle crashing to the ground.  The passenger riding on the back of the motorcycle was ejected, and killed.  Again, a cyclist was involved in a fatal crash, but the cyclist was not killed.

An error of 2 is not huge the grand scheme of Ohio’s crashes. In 2008, for example, there were more than 320,000 crashes – more than 77,000 injuries – and 1099 deaths on Ohio’s roads.  So 2 isn’t a huge number… EXCEPT that two is a HUGE number when it’s 2 out of 11 cycling deaths!

So how many cyclists died in Ohio in 2010?  The answer is nine.  However, 11 cyclists were involved in fatal crashes, so the ODPS stats are “right” yet wrong…go figure…

The author was in a crash. It seemed simple enough, until the motorist lie…er… decided the facts told to the officer would vary from reality.  The cyclist didn’t realize the impact of a Garmin at the scene of the crash.  The police were reluctant to believe the cyclist without further proof and all other witnesses had left.

Later, after getting home, the cyclist realizes the importance of the Garmin. He downloads the data, and there it is – his path, with real timestamps, showing that what he told the cop was true.

Sadly, the cops refused to accept the ex post facto presentation.  Had he been severely or critically injured, I would hope they would reconsider but since it was a “minor” crash, they probably didn’t want to go through the hassle of re-opening their paperwork.  [On a side note, the best response of a "minor" injury was by my client's doctor... when defense counsel tried to get him to admit that the client's injury was "minor" he said, "It depends on if it's your back or mine - if it's MINE, it is NOT "minor" at all..."]  Fortunately, his INSURER did accept his gps evidence!

In a case I worked on, a death case, the cyclist’s gps was used to confirm both his path and speed – proving that he wasn’t speeding as he approached the intersection where he was hit and killed by a left turning pick-up truck.  In a new case I am handling, the cyclist’s gps shows his path and speed and precisely where the drunk motorist clobbered him!  These are very powerful tools, and very powerful pieces of evidence.

So take a tip from Black Dog Cycling, and ride “protected” with your gps.