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.

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